Delhi District Court
State vs Ram Nath Upadhay on 22 May, 2024
CNR No. DLNE010002012012
State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome
DLNE010002012012
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2
2 The case set up by the Prosecution 3-6
3 Charges 6-7
4 Description of Prosecution Evidence 7-17
5 Plea of accused under Section 313 Cr.P.C. 17-21
6 Arguments of Defence & Prosecution 21-29
7 Appreciation of Law, Facts & Evidence 29-38
8 Presence of all accused in the incident and 38-45
firing at PW1
9 Conclusion and Decision 45-46
Digitally signed
Page 1 of 46 (Pulastya Pramachala)
PULASTYA
by PULASTYA
PRAMACHALA
ASJ-03, North-East District,
PRAMACHALA Date: 2024.05.22
12:10:20 +0530
CNR No. DLNE010002012012
State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome
Sessions Case No. : 44601/2015
Under Section : 307/34 IPC & 27 Arms Act
Police Station : Welcome
FIR No. : 468/2011
CNR No. : DLNE01-000201-2012
In the matter of: -
STATE
VERSUS
1. RAM NATH UPADHAYAY
S/o. Sh. Nanga Nath Upadhayay,
R/o. H.No. C-480, Gali No.3, Shivaji Marg,
East Babarpur, Delhi.
2. MUKESH KUMAR
S/o. Sh. Ram Nath,
R/o. H.No. 480-C, Kidwai Gali,
Near Shiv Mandir, Chajjupur, Shahdara,
North East, Delhi-32.
3. RAJESH KUMAR
S/o. Sh. Ram Nath,
R/o. H.No. C-480, Gali No. 3,
Shivaji Marg, Opp. Shiv Mandir,
East Babarpur, Shahdara, S.O. East Delhi-32.
...Accused Persons
Complainant: Smt. Meenu,
W/o. Satender Khokhar,
R/o. C-478, Shivaji, Gali No.3,
Babarpur, Delhi.
Date of Institution : 16.10.2012
Date of reserving judgment : 13.05.2024
Date of pronouncement : 22.05.2024
Decision: All accused persons are convicted u/s. 307/34 IPC.
Accused Ram Nath Upadhyay is also convicted u/s.
27 Arms Act, 1959.
(Section 437-A Cr.P.C. complied with by all accused persons.)
Digitally signed
Page 2 of 46 (Pulastyaby
Pramachala)
PULASTYA
PULASTYA
ASJ-03, North-East
PRAMACHALA District,
PRAMACHALA
Date: 2024.05.22
12:10:34 +0530
CNR No. DLNE010002012012
State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1. The above-named accused persons have been charge-sheeted by the police for offences punishable under Section 307/34 IPC & 27/54/59 Arms Act.
2. Brief facts of the present case are that, on receipt of DD No. 8-A dated 21.12.2011, time 08:55 AM, Insp. Sudhir Kumar along with SI Rizwan Khan, Ct. Satypal and other staff reached the spot i.e. C-478, Shivaji Gali No.3, Chajjupur, Delhi. This DD was recorded at PS Welcome, in respect of firing on a person. On cursory inspection of the spot, blood and one empty cartridge were found in the gali. Leaving SI Rizwan Khan and staff on the spot to protect the scene of crime, Insp. Sudhir Kumar along with SI Md. Faizan Ghani and Ct. Rakesh visited GTB hospital. Insp.
Sudhir Kumar found injured Satender admitted there vide MLC No. C-7140/11, with alleged history of gun-shot injury at 08:50 AM on same day near Chajjupur, Welcome.
3. As per MLC, the injured Satender had received: - (i) one wound over 1.5cm (RT) lateral to sternum at level of nipple, blackening and abrasion collar; (ii) one wound one (RT) lateral chest wall 2cm below the nipple line; (iii) one wound 8cm from mid line over right lower quadrant (2cm X 2cm); (iv) one abrasion present about 8cm from midline and 6cm below umbilicus (2.5cm X 2.5cm) and (v) one wound present over left hip (2cm X 2cm) blackening just behind the (LT) greater trochanter.
4. MLC also mentioned that patient/injured Satender was shifted to surgery emergency operation theater at 09:50 AM. In GTB Page 3 of 46 (PulastyaDigitally Pramachala) signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA PRAMACHALA Date:
2024.05.22 12:10:41 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome hospital, Duty Ct. Virender handed over cloth and bullet in sealed parcels alongwith sample seal to Insp. Sudhir, who seized the same in this case. In the said hospital, Insp. Sudhir Kumar met wife of injured namely Smt. Meenu, who was an eyewitness. He recorded her statement there.
5. In her statement, Smt. Meenu stated that on 21.12.2011 at around 08:30 AM, she along with her husband Satender came out of her house i.e. C-478, Shivaji Gali No.3, Chhajjupur, Delhi, as her husband was going out for his duty being Head Constable in Delhi Police. It was further stated that daughter of Ram Nath namely Renu was brooming outside the house and kept/stored the garbage in front of H.No.C-478. Smt. Meenu further stated that her husband objected to Renu for doing the same. On which Ram Nath, who was also working in Delhi Police, came there along with his sons Mukesh and Rajesh, wife of Mukesh namely Lata and tenant. Ram Nath showed his anger towards Satender, stating that none had raised fingers against his family. Satender told Ram Nath that he was just making Renu understand as the same was daily routine, which was not good. On that issue, Ram Nath and his two sons started manhandling Satender, started beating him and made him fall. Smt. Meenu further stated that Ram Nath took out the pistol from the wearing pant of her husband Satender and told that "अअज मम ररज-२ कअ झगडअ हह खतम कर ददतअ हह ह". Saying so, Ram Nath pointed pistol towards her husband and fired upon him. After receiving gun-shot injury, her husband fell down and blood started oozing out. Smt. Meenu further stated that when she came to rescue her husband, Ram Nath also tried to fire upon Page 4 of 46 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALA District, PRAMACHALA Date: 2024.05.22 12:10:49 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome her, but neighbors gathered there and stopped Ram Nath. It was further stated that taking advantage of crowd, Ram Nath escaped away from there along with his both sons. Thereafter, residents/eye-witnesses of her street namely Satyavati, Kamlesh and others took her and her husband in private vehicle to GTB Hospital. In her statement, Smt. Meenu made allegations that Ram Nath with assistance of his two sons namely Mukesh and Rajesh, fired upon her husband with intention to kill him and injured him.
6. Insp. Sudhir made endorsement on the statement of Mrs. Meenu/wife of injured and prepared rukka. DO HC Rajesh registered this FIR No. 468/11 u/s. 307/34 IPC and 27 Arms Act, which was assigned to Insp. Sudhir Kumar for investigation.
7. During investigation, IO/Insp. Sudhir Kumar called crime team on the spot; got inspected and photographed the same and obtained inspection report from IC Crime Team/Insp. U. Bala Shankran and photographs from crime team photographer/Ct. Neeraj Kumar. IO also prepared site plan at the instance of eye- witness Smt. Meenu i.e. wife of injured Satender. IO seized blood lifted with the help of cotton, earth control and blood- stained empty cartridge, from the spot.
8. IO arrested accused Ram Nath, Mukesh and Rajesh, in the present case. Pistol used in the crime was recovered from the possession of Ram Nath and IO prepared sketch of the pistol along with eight live cartridges, which was recovered from the right-side pocket of wearing pant of Ram Nath. IO seized aforesaid pistol with eight live cartridges and police uniform of Digitally signed Page 5 of 46 (Pulastya byPramachala) PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:10:59 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Ram Nath.
9. During further investigation, IO/Insp. Sudhir Kumar obtained opinion on MLC of injured Satender from GTB hospital, wherein doctor mentioned the nature of injury as grievous. Exhibits were sent to FSL for examination and IO also obtained FSL result of the exhibits of this case. IO recorded statement of witnesses.
10. After completion of investigation, on 16.10.2012 chargesheet was filed against accused Ram Nath Upadhyay, Mukesh Kumar and Rajesh for offences punishable under Section 307/34 IPC and 27/54/59 Arms Act. This chargesheet was filed before ld. MM, Karkardooma Court, Delhi. Ld. MM committed the case to the court of sessions vide order dated 12.02.2013. Thereafter on 14.03.2013, the then ld. District & Sessions Judge, North-East, Karkardooma Courts, Delhi, took cognizance of offences punishable under Section 307/34 IPC against all three accused persons and of offence under Section 27 of Arms Act against accused Ram Nath Upadhyay only.
CHARGES: -
11. On 14.03.2013, charges were framed against accused Ram Nath Upadhyay, Mukesh Kumar and Rajesh for offences punishable under Section 307/34 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That on 21.12.2011 at around 8.30 am, you all three accused in prosecution of common intention in front of house C-478, Shivaji, Gali No.3, Chajupura, Delhi, within the jurisdiction of PS Welcome committed offence of attempt to murder when you accused Ram Nath caused a fire arm bullet injury aiming at victim/injured Satender Khokar who suffered bullet injury on chest area as well on hip and assault was with an intention and knowledge and in the circumstances that had you caused death of Satender Khokar you Page 6 of 46 Digitally (Pulastya signed Pramachala) by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:11:09 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome would have been guilty of murder and you all thereby committed offence punishable under Section 307 read with Section 34 IPC, and within my cognizance."
12. On same day, charge was also framed against accused Ram Nath Upadhyay only for offence punishable under Section 27 Arms Act, to which he pleaded not guilty and claimed trial. The charge was framed in following terms: -
"That on 21.12.2011 at around 8.30 am, in front of house C- 478, Shivaji, Gali No.3, Chajupura, Delhi, within the jurisdiction of PS Welcome while committing offence u/S 307/34 IPC separately charged against you and your two accused sons, you used illegally the service pistol loaded with bullets sketch of which is mark 'X' of victim/injured Satender Khokar by firing a gunshot from that pistol and thereby you committed offence punishable under Section 27 Arms Act, and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
13. Prosecution examined 20 witnesses in support of its case, as per following description: -
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1/Sh. He was victim/injured in the present Ex.P1, Ex.P3, Satender case. Ex.P4, Ex.P5 Khokhar On 21.12.2011, he was posted as HC & Ex.P6 with 3rd battalion, Delhi Police. On (Blood stained that day at about 08:30 AM, when jeans pant he came out of his house alongwith with belt, full his wife Smt. Meenu, he saw that sleeve t- Renu i.e. daughter of accused Ram shirt/inner, Nath was scavenging outside her banyan, house. House of accused Ram Nath underwear and was one house away from the house one blue of PW1 in the same lane, bearing no. colour t-shirt, C-480. While taking up scavenging, worn by PW1 Renu brought scavenged material at the time of outside house of PW1. When PW1 incidence); and his wife objected against Ex.P2 (black aforesaid act of Renu, accused Ram colour pistol Page 7 of 46 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:11:18 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Nath got angry. Accused Ram Nath along with started abusing and shouting while rope/strip, stating that how PW1 could dare to which was challenge him. Thereafter accused carrying by Ram Nath called his sons i.e. PW1 at the accused persons namely Rajesh and time of Mukesh and all three of them started incidence); & assaulting PW1. All three of them Ex.P7 (police made him fell on the road. PW1 was uniform worn carrying his service firearm/pistol by accused and accused Ram Nath thereafter Ram Nath, at took out his service pistol with its the time of rope. Other two accused caught hold incidence) of PW1 and accused Ram Nath fired a shot from that pistol at PW1, which hit on his chest. When PW1 was trying to free himself from the clutches of accused persons, accused Ram Nath fired a second shot at him, which hit on his hip and he fell down on the ground. PW4/Wife of PW1 raised hue and cry and thereafter with the help of PW6/Kamlesh, PW3/Satyawati and 2-3 other persons took PW1 to GTB hospital by private vehicle. The blood-stained clothes of PW1 were seized by IO/PW18 in GTB hospital. PW1 identified his blood-stained jeans pant with belt, one full sleeve T-shirt/inner, banyan (vest), one blue colour T-shirt as well as one black colour pistol along with rope/strip and one black colour underwear.
PW1 also identified one pant and one shirt of police uniform and the shoulder batch bearing one star along with Delhi Police belt, which were worn by accused Ram Nath at Page 8 of 46 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:11:30 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties the time of incident.
PW1 correctly identified accused Ram Nath, Rajesh and Mukesh before the court.
PW2/HC On 21.12.2011, he was working as Ex.PW2/A Rajesh Bala Duty Officer from 8 AM to 4 PM. (copy of DD On that day at about 08:55 AM on No. 8A); receipt of information, he recorded Ex.PW2/B DD No.8A regarding incident of (copy of FIR); firing near 507C, Shivaji marg, Chajupur, Delhi. On the same day at Ex.PW2/C around 11:30 AM, FIR was (endorsement registered by PW2 on the basis of of PW2 on rukka. Thereafter, PW2 made rukka) endorsement on the rukka.
PW3/Smt. She knew that one Satender/PW1 had suffered a Satyawati bullet injury, who resided at a distance of around 5-6 houses from her house bearing C-508, Chhajupur, Delhi. PW3 knew Renu/daughter of accused Ram Nath.
On 21.12.2011, PW3 was present at her home. Satender/PW1 used to purchase milk from her dairy, who resided in her neighborhood. House of PW1 was about 7-8 steps away from her house. This witness denied having seen the incident and was declared hostile by the prosecution.
PW4/Smt. On 21.12.2011, she was residing at Ex.PW3/A Meenu H.No.C-478, gali no.3, Chajjupur, (statement of Delhi. Her husband/Satender/PW1 PW4 ) was a Head Constable in Delhi Police. When she came out of her house to see her husband off, she saw that daughter of accused Ram Nath namely Renu was putting the garbage outside her house. When PW4 and her husband objected, accused Ram Nath got enraged and Digitally signed Page 9 of 46 (Pulastya by Pramachala) PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Date: 2024.05.22 12:11:39 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties called his sons i.e. accused persons Rajesh and Mukesh. Accused Ram Nath started abusing. Accused Ram Nath as well as co-accused persons started assaulting her husband, due to which her husband fell down on the ground. Accused Rajesh gave an exhortation, while accused Ram Nath grabbed and took out the pistol of her husband. Thereafter, accused Ram Nath fired at her husband/PW1, which resulted into injury on the chest of her husband. Accused Ram Nath fired another shot from that pistol, which caused injury on the lower part of the abdomen of her husband. Accused Ram Nath as well as co-accused persons tried to assault her also and they all ran away. PW2 alongwith Satyawati, Kamlesh and other persons took her husband to GTB hospital. Police reached in the hospital and recorded her statement. PW4 had shown the place of incident to the police.
PW5/Ct. On 21.12.2011, he was working as Ex.PW2/B Sandeep computer operator in PS Welcome (tehrir) and he typed contents of tehrir on the computer. PW5 thereafter handed over copy of FIR and tehrir to duty officer.
PW6/Smt. Accused Ram Nath Upadhyay and his sons i.e. Kamlesh accused Rajesh and Mukesh as well as PW1, were known to PW6 being her neighbor and resident of same locality. She was also declared hostile by the prosecution as she denied having seen the incident.
PW7/ Ram He was residing at C-507, Shivaji Page 10 of 46 (Pulastya Pramachala) Digitally signed ASJ-03, North-East PULASTYA District, by PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:11:46 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Gopal Gali no.3, Chajjupur, Delhi since last 30 years. On 21.12.2011 at about 08:20 AM when PW7 was going to drop his children in their school, accused Ram Nath and Satender/ PW1 were reasoning and quarreling with each other. Satender called his wife and directed her to bring revolver. Thereafter, PW7 heard noise of firing and again heard the noise of firing second time. PW7 thereafter reached his home and informed the police through his mobile phone. He saw Satender/PW1 was lying smeared with blood. PW7 helped in removing Satender to GTB hospital. Accused Ram Nath and Satender were quarreling on the matter of garbage.
PW8/Insp. U. On 21.12.2011, he was posted as Ex.PW8/A Bala Incharge Mobile Crime team (N/E) (SOC report) Shankaran and on that date, he alongwith crime team officials ASI Chet Ram and Ct. Neeraj/photographer reached at the place of incident at around 10 AM.
Insp. Sudhir Kumar was present there. Ct. Neeraj Kumar took the photographs of the spot and PW8 prepared SOC report.
PW9/Ct. On 21.12.2011, he alongwith Insp. Ex.PW9/A & Rakesh Sudhir Kumar had gone to Shivaji Ex.PW9/B Marg, Chajjupur, gali no.3. PW9 (arrest and saw that blood and cartridge were personal lying at the spot. Injured/PW1 search memo Satender was found admitted in the of accused GTB hospital, who was unfit for Mukesh) statement. Statement of wife of injured namely Meenu was recorded Page 11 of 46 (PulastyaDigitally Pramachala) signed ASJ-03, North-East PULASTYA District, by PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:11:54 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties by IO. PW9 got registered the FIR and handed over the same to IO.
PW9 was witness to arrest and personal search of accused Mukesh Kumar on 06.01.2012. On 03.02.2012, he collected exhibits of this case vide RC from Malkhana and deposited the same in intact condition under a receipt in FSL.
PW9 handed over the receipt to MHC(M).
PW10/ASI On 21.12.2011, he was posted as Ex.PW10/A Devender MHC(M) in PS Welcome. On this and Kumar day, Insp. Sudhir Kumar deposited 7 Ex.PW10/B, parcels duly sealed with the seal of (photocopy of 'SKS' and thereafter again on relevant 22.12.2011 he deposited 2 parcels entries);
duly sealed with the seal of 'GTB Ex.PW10/C
HOSPITAL', which were recorded and
in register no.19 by PW10 and Ex.PW10/D
PW10 deposited the parcels in the (photocopy of
malkhana. On 03.02.2012, exhibits relevant RCs);
of this case were sent to FSL
through Ct. Rakesh and receipts Ex.PW10/E1
were given to him by Ct. Rakesh. and
PW10 had made aforesaid relevant Ex.PW10/E2
entries in register no.19 and 21, on (photocopy of
respective dates. deposit
receipts)
PW11/ On 21.12.2011, he was posted as Ex.PW11/A1
Neeraj Constable photographer in the crime to Ex.PW11/
Kumar team and at the instance of IO, he A9 (9
took 9 photographs of the spot. IO photographs
had collected the photos from Crime taken by
team office. PW11); &
Ex.PW11/B1
to Ex.PW11/
B9 (negatives
of aforesaid
Page 12 of 46 (Pulastya Pramachala)
Digitally signed
ASJ-03, North-East by PULASTYA
District,
PULASTYA PRAMACHALA
PRAMACHALA Date: 2024.05.22
12:12:10 +0530
CNR No. DLNE010002012012
State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties photographs) PW12/ Retd. On 21.12.2011, he accompanied IO/ Ex.PW12/A Insp. Ajay Insp. Sudhir and SI Rizwan in & Kumar search of accused persons in the Ex.PW12/B present case. On that day, on the (The sketch of basis of secret information, accused empty shell & Ram Nath was apprehended at a 8 live place near Shahdara Railway Station cartridges and one pistol alongwith dori was respectively); recovered from the pocket of his Ex.PW12/C pant. Magazine of pistol was found (sketch of containing 8 live cartridges and one pistol); empty shell of 9 mm was found from the right-side pocket of his Ex.PW12/D, pant. IO prepared sketch of the Ex.PW12/E pistol, live cartridges and empty and cartridge. The empty shell, live Ex.PW12/F cartridges, pistol with magazine (seizure memo were converted into separate cloth of empty parcels and were sealed and seized shell, live vide separate seizure memo. cartridges, pistol with Accused Ram Nath was arrested magazine); vide arrest and personal search memos. His disclosure statement Ex.PW12/G was recorded. At the time of his & arrest, accused Ram Nath was in Ex.PW12/H police uniform and his police (arrest and uniform was seized vide seizure personal memo. On the basis of his disclosure search memos statement, accused Rajesh was of Ram Nath); arrested from Loni, vide his arrest Ex.PW12/I and personal search memos. (disclosure statement of Ram Nath);
Ex.PW12/J (seizure memo of uniform of Ram Nath); & Page 13 of 46 (Pulastya Digitally Pramachala) signed by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:12:17 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Ex.PW12/K and Ex.PW12/L (arrest and personal search memo of accused Rajesh).
PW13/Dr. They had seen the MLC of Ex.PW13/A Iqbal Singh PW1/Satender. They identified the (opinion given & handwriting and signature of Dr. by Dr. PW14/Dr. Bhavesh Chadha and Dr. Mohd. Bhavesh on Parmeshwar Parvez respectively on the MLC, as the MLC of Ram they had seen them signing and PW1) & writing in their official capacity. Ex.PW14/A (MLC prepared by Dr. Md.
Parwez) PW15/HC On 21.12.2011, he was posted as duty Constable in Virender GTB hospital. On that date, injured/PW1 Satender Singh having bullet injury was admitted in the hospital.
PW13 handed over the cloth and bullet in sealed parcels alongwith sample seal to Insp. Sudhir, who seized the same.
PW16/SI On 21.12.2011, he alongwith HC Devender, Ct. Mohd. Karamvir, Ct. Rakesh, HC Rajender went to Shivaji Faizan Ghani Gali, C-478, Chajjupur, Delhi, where Insp. Sudhir Kumar was present with staff. They all went to GTB Hospital and PW16 collected MLC of injured Satender. Insp. Sudhir Kumar recorded statement of Meenu/wife of injured as injured was not fit for statement. Insp. Sudhir made his endorsement on the statement of wife of injured and prepared a rukka. PW16 handed over the MLC to the IO of this case.
PW17/SI On 21.12.2011, on receipt of DD No.8A, he Rizwan alongwith Ct. Satpal reached at C-478, Shivaji gali Page 14 of 46 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:12:24 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties no.3, Chajjurpur. At 9 AM Insp. Sudhir Kumar reached there alongwith other staff. They came to know that injured had been removed to hospital. He alongwith Ct. Satpal and other police officials remained at the spot, while Insp. Sudhir left for hospital. Insp. Sudhir alongwith wife of injured again reached back at the spot at about 12 noon. Crime team had also reached the spot. IO prepared site plan on the pointing out of Smt. Meenu/wife of injured and exhibits were lifted from the spot. Subsequently, on the same day PW17 alongwith other members of raiding party and secret informer reached Shahdara Railway station. They apprehended accused Ram Nath on the pointing out of secret informer. One pistol was recovered from left side of his pant and empty cartridge was recovered from the right-side pocket of his wearing pant and on checking the pistol, 8 live rounds were recovered from the magazine of the same. The said articles were sealed separately. Sketch of pistol and recovered articles were also prepared by IO. Accused Ram Nath was interrogated about accused persons. Thereafter, accused Rajesh was arrested on pointing out of Ram Nath from Laxmi Garden, Loni.
PW17 alongwith raiding team returned back to the PS, where statements of concerned police officials were recorded by IO. He identified his signature on Ex.PW2/A (DD no.8A) and Ex.PW17/A (site plan). He identified his signature on seizure memo of blood sample, blood-stained earth control, earth control, empty cartridge of 9 mm, sketch of empty shell, seizure of bullet pullanda, seizure of recovered pistol from possession of accused Ram Nath, sketch of pistol, seizure memo of clothes, 8 live cartridges, sketch of cartridge, seizure memo of empty round recovered from his pocket, sketch of empty cartridge recovered from his possession, seizure memo of uniform of accused Ram Nath. PW17 also identified his signature on the arrest and personal search memos Page 15 of 46 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East District, PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:12:32 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties of accused Ram Nath & accused Rajesh.
PW18/Retd. On 21.12.2011, he was posted as Ex.PW18/A Insp. Sudhir ATO in PS Welcome and on that (rukka Kumar date, he alongwith SI Rizwan, SI prepared by Faizan, Ct. Rakesh and other staff PW18); & went to gali no.3, Chajjupur, Delhi. Ex.PW18/B He was the IO of the case and he (disclosure reiterated the same facts as deposed statement of by PW17 SI Rizwan, in respect of Ram Nath) investigation.
PW18 prepared a rukka and collected the MLC of the injured Satender. He recorded disclosure statement of accused Ram Nath. On 02.01.2012 PW18 recorded statement of Satender/PW1 at his home.
On 06.01.2012, accused Mukesh appeared before PW18 in the police station, when PW18 arrested him in this case. PW18 sent exhibits to the FSL, obtained photographs from crime team and filed the challan in this case. He identified the pistol with rope/strip i.e. Ex.P2; four fired empty cells, four live cartridges all of 9mm and three bullet heads i.e. Ex.P2A; one empty cartridge of 9mm being recovered from the pocket of accused Ram Nath i.e. Ex.P2B; police uniform of accused Ram Nath i.e. Ex.P7 and one empty cartridge case of 9mm being recovered from the spot i.e. Ex.PW18/Article-1.
PW19/Dr. On 03.02.2012, he was working as Ex.PW19/A Puneet Puri Senior Scientific Officer (Ballistics) (detailed in FSL Rohini and he examined all report Page 16 of 46 Digitally (Pulastya signed Pramachala) by PULASTYA ASJ-03, North-East PULASTYA PRAMACHALADistrict, PRAMACHALA Date: 2024.05.22 12:12:39 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties the exhibits received in FSL in this prepared by case and prepared his detailed PW19) report.
PW20/Dr. On 03.02.2012, he was working as Ex.PW20/A Naresh Senior Scientific Officer (Biology), (detailed Kumar FSL Rohini and he conducted report biological examination on the prepared by exhibits and prepared his detailed PW20) report.
Admitted documents under Section 294 Cr.P.C. FSL report as Ex.A-41.
PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
14. All three accused persons denied all the allegations. They admitted that house of PW1 was in the same gali after one house from the house of accused Ram Nath. They further took plea that they did not know, if PW1/Satender used to purchase milk from dairy of PW3/Satyawati. They took further plea that they were falsely implicated and arrested in the present case by the investigating agency.
15. Accused Ram Nath Upadhyay took plea that pistol was not recovered from his possession and same was seized by the IO from the house of PW1/Satender. Accused Ram Nath Upadhyay further took plea that IO had seized his uniform in the police station and nothing was recovered from him. Accused Ram Nath further took plea that he was taken to PS from his house and he was arrested in PS. On the day of incident, when he was going for his duty, Satender started quarreling with him and threatened to kill him. Satender asked his wife to bring service pistol from Digitally signed Page 17 of 46 (Pulastya by Pramachala) PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:12:47 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome the house and she handed the service pistol to PW1/Satender. It was further pleaded that PW1/Satender loaded the pistol and pointed out on accused Ram Nath. Accused Ram Nath grappled with him in order to save his life and in that process, the fire was shot from service pistol of PW1. Though, PW1 was not entitled to bring service pistol to his residence, but in order to create terror PW1/Satender used to bring pistol to his residence. Accused Ram Nath took further plea that his sons were not present at the time of incident and they have been falsely implicated. During this scuffle, the loaded service pistol was in the hands of PW1/Satender and he was holding trigger to shoot at him. Accused Ram Nath took further plea that he did not snatch the pistol from PW1/Satender, nor did he press the trigger, rather the direction was randomly changed towards PW1/Satender. Accused Ram Nath took further plea that even otherwise, PW1/Satender was aggressively in the mood to shoot him.
16. Accused Mukesh took plea that he had surrendered before police.
Accused Mukesh took further plea that he was not present at the time of incident at his house and in the afternoon police came to his house and arrested his father i.e. accused Ram Nath in this case. Accused Mukesh was informed that he was also the accused in this case, so he surrendered himself. PW1/Satender used to bring his service pistol to his house in order to terrorize the neighbors. The PWs Satender and Meenu falsely implicated him because he was son of accused Ram Nath.
17. Accused Rajesh took plea that he was not present at the time of incident at his house and he was arrested from the house of his Digitally signed Page 18 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Date: 2024.05.22 12:12:54 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome sister situated at Indirapuri, Loni, U.P. Accused Rajesh took further plea that PW1/Satender used to bring his service pistol to his house in order to terrorize the neighbors. The PWs Satender and Meenu falsely implicated him because he was son of accused Ram Nath.
18. All three accused persons opted to lead evidence in their defence.
On 29.04.2024, they examined Sh. Deepak Sharma as DW1; Sh. Jyoti Kumar as DW2 and Sh. Ashish Kumar as DW3, in their defence.
19. During his testimony, DW1/Sh. Deepak Sharma testified that about 12-13 years ago at about 08:30-08:45 AM, Ram Nath was going to duty. One police official, who was residing at 15 steps away from his house i.e. H.No.479, gali no.3, Shivaji gali, Chhajupur, Babarpur, Delhi, was carrying revolver. That police official was quarrelling with Ram Nath over issue related to garbage and he was abusing Ram Nath. Ram Nath told him to talk in the evening and allow him to move away. The other police official took out his revolver. Both were having physical altercation (hatha paayi ho rahi thi). Then, DW1 closed gate of his house and went upstairs to the terrace. Since other police official had taken out revolver, therefore, most of the persons in the gali had closed gate of their houses. DW1 started watching the happenings from the terrace of his house. From the terrace of his house also, DW1 saw physical altercation between Ram Nath and other police official. After some time, PCR had came there. That police official was lying in front of gate of DW1 and was having gunshot injuries.
Digitally signed by PULASTYA Page 19 of 46 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, North-East Date: District, 2024.05.22 12:13:02 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc.
SC No. 44601/15, FIR No. 468/11, PS Welcome
20. During his testimony, DW2/Sh. Jyoti Kumar testified that about 10-12 years ago, at about 08-08:30 AM, he had come back to his home bearing H.No. C-511, gali no.3, Chhajupur, Shahdara, Delhi, after fetching milk. There was a temple in his house. Ram Nath ji was going for his duty and he had altercation with Satender ji over the issue of garbage. There had been abusing between them, which converted into physical altercation. Satender ji used to carry pistol, whenever he used to come to dairy to fetch milk or otherwise. When their altercation advanced, then Satender ji took out his pistol. Thereafter mother of DW2 asked DW2 to come inside the home and hence, he went inside the home. DW2 saw further altercation from terrace of his home. The altercation was still continuing and Satender ji was holding pistol in his hand. When DW2 was seeing this altercation, during that time the pistol fired and Satender fell in front of his house. When Satender fell down, at that time also pistol was in his hands. Someone had made calls and after some time, police had come in the gali. Police had demarcated that place and had moved away all the persons from that place.
21. During his testimony, DW3/Sh. Ashish Sharma testified that on 20.12.2011, at about 8 PM, accused Rajesh and Mukesh had come to his residence bearing H.No. A-42, Vikas Kunj, Indrapuri, Loni, Ghaziabad (U.P). Both of them were brothers-in-law of his elder brother. Since sister-in-law (bhabi) of DW3 was pregnant at that time, these 2 persons had come to see her. They stayed over- night at his home. Next day at about 10-10:30 AM, police came to his house and took both of them away. DW3 asked police as to Page 20 of 46 Digitally Pramachala) (Pulastya signed by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:13:12 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome why they were taking them away, but police did not tell him anything.
ARGUMENTS OF DEFENCE & PROSECUTION
22. I heard ld. Special PP as well as ld. counsel for accused persons. I have perused the entire material on the record.
23. Sh. S.K. Ahluwalia and Sh. Anurag Ahluwalia, ld. counsels for all three accused persons argued that prosecution failed to prove this case against the accused persons beyond reasonable doubt. The two independent witnesses i.e. PW3/Smt. Satyawati and PW6/Kamlesh failed to support the prosecution case. PW7 categorically stated that accused Rajesh and Mukesh were not present at the spot and his testimony has been relied upon by the prosecution. No scientific evidence was produced by the prosecution, without any cross examination on any point. IO did not join any public witness in the investigation at the time of seizure of articles from the spot, arrest of accused Ram Nath and Rajesh and at the time of seizure of the case property allegedly recovered from Ram Nath Upadhyay. It was further submitted that there was no evidence of call records of the accused persons Rajesh and Mukesh and the public witnesses, to show that they were present at the spot. Non-finding of blood stains on the clothes of accused Rajesh and Mukesh as well as presence of PW4 Meenu at the SOC are highly doubtful. It was further submitted that accused persons are entitled to be acquitted of the charge.
24. In the written arguments filed on behalf of all three accused persons by ld. counsels Sh. S.K. Ahluwalia and Sh. Anurag Digitally signed by Page 21 of 46 (Pulastya PULASTYAPramachala) PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:13:21 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Ahluwalia, it was submitted that PW4/Smt. Meenu testified that she took injured husband to GTB Hospital and her clothes were smeared with blood of her husband, but her name was not mentioned in the MLC of injured. As per MLC, only Kamlesh a neighbor was shown to have brought the injured to G.T.B. Hospital. In order to prove the presence of PW4 at the spot, seizure of her clothes was very essential to corroborate the testimony of injured. PW4 further testified that she did not try to stop the flow of blood with anything. No prudent person on earth should allow the bleeding to flow, without stopping the blood with the help of some clothes or with the hands. The conduct of PW4/Smt. Meenu is highly unbelievable and unnatural and the only inference could be drawn is that she was not present at the spot nor had she taken the injured to hospital.
25. It was further submitted by ld. defence counsels that PW7 Ram Gopal categorically submitted that accused Rajesh and Mukesh were not present at the spot and ld. Addl. PP failed to cross examine this witness to rebut his testimony. Even no request was made by ld. Addl. PP. Prosecution witness belied the presence of both these accused persons at the spot, besides the two independent public witnesses. It was further submitted that version of PW7 coupled with the testimony of DW1/Deepak Sharma and DW2/Jyoti Kumar, clearly show that accused Mukesh and Rajesh were not present at the spot and they have been falsely implicated in this case in order to implicate the entire family.
26. It was further submitted by ld. defence counsels that participation Digitally signed Page 22 of 46 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.05.22 12:13:30 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome of Rajesh and Mukesh in the crime, is highly doubtful. No blood stains were found on the wearing clothes of Rajesh and Mukesh and their clothes were not seized by the police or sent to FSL. The uniform of accused Ram Nath Upadhyay found smeared with blood and the FSL also reported that the clothes (uniform) of Ram Nath Upadhyay was stained with the blood of the injured. It is highly improbable that if three persons are standing side by side to the accused and one in front, then the clothes of two persons who were allegedly holding the injured would not sustain even a single drop of blood on their clothes.
27. It was further submitted by ld. defence counsels that it was the abundant duty of the I.O. to preserve the pistol and lift finger impressions/prints from the weapon to prove that the shots were fired by accused Ram Nath Upadhyay. PW7/Ram Gopal categorically stated that the weapon was in the hands of injured Satender Khokhar and his testimony is fully supported by DW1 and DW2. Hence, there is no reason to disbelieve PW7, DW1 and DW2. When it appears that accused Rajesh and Mukesh might be present or might not be present, then as per settled law, the view which is favourable to the accused is to be followed.
28. It was further submitted by ld. defence counsels that IO failed to seize call details of accused persons and witnesses, to show their presence at the spot. The finger prints from pistol were not collected for comparison with the finger prints of accused Ram Nath Upadhyay. Even the clothes of PW4 Meenu were not seized or sent to FSL for comparison and thus, the I.O. has failed to produce any scientific evidence to connect the three accused with Digitally signed Page 23 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date:
2024.05.22 12:13:37 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome the alleged offence.
29. It was further submitted by ld. defence counsels that as per order SPO 58/2008, the complainant injured was not entitled to carry the service pistol to his house and from the testimony of PWs, including PW4, the injured used to bring the pistol with him to his house. As per witnesses, injured Satender Khokhar took out the pistol and pointed at Ram Nath Upadhyay, who was alone. In order to save himself accused Ram Nath Upadhyay tried to persuade the complainant not to aim him and a scuffle took place and during this, two shots were fired accidentally. The PWs have also stated that the pistol was in the hands of complainant Satender and it remained in his hand, even after gun shots were fired and their statements belies the version of the complainant and PW4 that weapon was snatched by Ram Lal Upadhyay.
30. It was further submitted by ld. defence counsels that as per MLC of the injured, there was blackening on the injuries which shows that shots were fired from a very close range and not as stated by PW4 Meenu that the distance was about 2-3 feet at the time of first fire and from the distance of 3 feet at the time of second fire.
31. It was further submitted by ld. defence counsels that as per prosecution case, accused Ram Nath Upadhyay was arrested from Platform No.1, Shahdara Railway Station, but no public witness from Shahdara Railway Station or from GRP, was joined in the proceedings, including the alleged recovery. This recovery was doubtful and IO planted the weapon to falsely implicate, Ram Nath Upadhyay. Accused Rajesh was allegedly arrested from U.P. but no public witness or police officer from U.P. was Digitally signed Page 24 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALA District, PRAMACHALA Date: 2024.05.22 12:13:45 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome joined in the raiding party. Neither any permission to visit U.P. was sought from Senior Police Officers, nor any DD Entry was made at Loni Police Station, in this respect.
32. It was further submitted by ld. defence counsels that PW4 testified that injured Satender had fallen on the ground due to assault given by accused persons and at that time he was having his revolver in its leather case. She further stated she did not know if Satender kept his revolver loaded or not.
33. It was further submitted by ld. defence counsels that PW7 corroborated the testimony of DW1 and DW2 that accused Rajesh and Mukesh were not present at the spot and injured Satender was holding the pistol. Hence, DW1 and DW2 being the neighbors are to be relied upon.
34. In support of their contentions, ld. defence counsels relied upon certain case laws, which are as follows: -
34.1 State (GNCT) of Delhi v. Saqib Rehman @ Masood & Ors., 2012(3) JCC 2127.
34.2 Hargiyan Singh v. State, 2013(3) JCC 1914. 34.3 Govindaraju @ Govinda v. State by Sriramapuram P.S. & Anr. 2012(3) JCC 1714.
34.4 State of NCT of Delhi v. Sudhir Kumar @ Bunti, 2016(3) JCC 1480.
34.5 Parag Dalmia v. Special Director of Enforcement, Enforcement Directorate, 2012(3) JCC 1967. 34.6 Surender Kumar & Anr. v. The State (NCT of Delhi), 2007(2) JCC 1003.
34.7 Suresh @ Bona v. State, 2013(4) JCC 2876. 34.8 Ashok Narang v. State, 2012(1) JCC 482.
35. Ld. counsel referred to certain observations made in these judgments. In the case of Saqib Rehman (supra), Hon'ble High Page 25 of 46 (Pulastya Pramachala) Digitally signed ASJ-03, North-East District, by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:13:51 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Court of Delhi observed that: -
"16. The Standing Counsel could not explain the vital discrepancies and contradictions highlighted in the impugned judgment. In the written submissions placed on record, the State attempted to put the burden upon the accused to prove their innocence. It is well-settled that the prosecution has to establish its case beyond reasonable doubt and it cannot derive any strength from the weakness of the defence, put up by the accused.
17. It is relevant to note that the State has filed leave to appeal against acquittal. It is well established in law that the Appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the Appellate Court may be the more probable one. In the case of "State of Uttar Pradesh vs. Nandu Vishwakarma", (2009) 14 SCC 501, Supreme Court observed as under :
"23. It is a settled principle of law that when on the basis of the evidence on record two views could be taken- one in favour of the accused and the other against the accused- the one favouring the accused should always be accepted.............."."
36. In the case of Hargiyan Singh (supra), Hon'ble High Court of Delhi observed that: -
"28. ............He is, after all, Mohd. Sharif's son and he would, in normal circumstances, do everything in his command to try and save his father. He did nothing of his sort and was a mere bystander, both to the assault on Rukmani as well as on Mohd. Sharif. Even his clothes did not tet blood stained and he did not accompany the police who took his father to hospital."
37. In the case of Govindaraju (supra), Hon'ble High Court of Delhi observed that: -
"28. This clearly shows that not only PW-1 was unaware of the names and identity of the assailants, but PW-11 was equally ignorant. It is not disputed that PW-1 was carrying a weapon and he could have easily displayed his weapon and called upon the accused to stop inflicting injuries upon the deceased or to not run away. But for reasons best known to PW1, nothing of this sort was done by him."
38. In the case of Sudhir Kumar (supra), Hon'ble High Court of Delhi observed that: -
"32. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Similarly, it is established principle that the prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any in the defence of accused. The burden of proof of the version of Page 26 of 46 (Pulastya Digitally Pramachala) signed by North-East PULASTYADistrict, PULASTYA ASJ-03, PRAMACHALA PRAMACHALA Date: 2024.05.22 12:14:00 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome prosecution in criminal trial, throughout trial lies upon prosecution and never shifts to accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal."
39. In the case of Parag (supra), Hon'ble High Court of Delhi observed that: -
"2.......... The defence of an accused has only to be probable and he has not to prove his defence beyond reasonable doubt."
40. In the case of Surender Kumar (supra), Hon'ble High Court of Delhi observed that: -
"16. The efforts of the criminal courts had to be to find out the truth, but this is not always easy, especially when parties develop vindictive attitude. Where there is a reasonable doubt and when two incredible versions confront the Court, the Court should give benefit of the doubt to the accused and it is not safe to sustain conviction (AIR 2005 SC 97, State of Maharashtra v. Sanjay)."
41. In the case of Suresh (supra), Hon'ble High Court of Delhi observed that: -
"19........There are a catena of decisions to the effect that defence witnesses are entitled to same weight as that of prosecution witnesses. In Banti @ Guddu vs. State of M.P., 2004 SCC (Cri) 294, it was held that evidence of defence witness is not to be ignored by courts. Like any other witness, his evidence has to be tested on the touch stone of reliability, credibility and trustworthiness. Similar view was taken in Dudh Nath Pandey vs. State of U.P., 1981 Cri LJ 618, where it was held that the defence witnesses are entitled to equal treatment with those of the prosecution. Courts ought to overcome their traditional instinctive disbelief in defence witnesses. Relying upon this authority in Munshi Prasad and Ors vs. State of Bihar, AIR- 2001 SC 3031, it was held that defence witnesses are not to be treated differently from prosecution witnesses. The evidence tendered by the defence witnesses cannot always be termed to be tainted only by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as those of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses at par with those of the prosecution. That being so, there is no reason to disbelieve the testimony of DW-1 Smt. Sunita and DW-2 Arti, that witness Laxman Indoria and accused are related to each other and their relations are strained."
42. In the case of Ashok Narang (supra), Hon'ble High Court of Delhi observed that: -
"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where Digitally signed Page 27 of 46 (Pulastya Pramachala) by PULASTYA PULASTYAASJ-03, PRAMACHALA North-East District, PRAMACHALA Date: 2024.05.22 12:14:07 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved. ...................................
108. As already noted above, learned Trial Judge has ignored the statements recorded by the first IO. The law has been settled by the Apex Court in Ram Singh (supra) that the evidence tendered by defence witness cannot always be termed to be tainted one. The defence witness is entitled to equal term and equal respect as with of the prosecution. The issue of credibility and trustworthiness will also to be attributed to the defence witness at par with that of the prosecution.
..............................
110. Keeping the circumstances discussed above and the case law, I am of the view that learned Trial Court has gone wrong in convicting the appellant, therefore, the impugned judgment dated 06.10.2009 and sentence order dated 09.10.2009 are hereby set aside qua the appellant."
43. Per contra, Sh. Gaurav Singh, ld. Addl. PP for State argued that there was no blood stains on the shirt of accused Ram Nath Upadhyay, hence, theory of grappling cannot be sustained. Only pant of accused Ram Nath had blood stains. Ld. Addl. PP further argued that defence witnesses were tutored witnesses and hence, they are not reliable. Ld. Addl. PP further argued that no contradiction appeared in the cross-examination of injured Satender Khokar and complainant Smt. Meenu. It was further argued that FSL report and MLC supported the case of prosecution and all links of incident were established. It was further argued that accused Ram Nath was older than injured Satender Khokar and in physical altercation, it could not be Digitally signed by PULASTYA Page 28 of 46 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, Date:
North-East District, 2024.05.22 12:14:33 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome possible for accused Ram Nath to overpower the injured. Hence, injury could not be inflicted upon injured without help of sons of Ram Nath i.e. Mukesh Kumar and Rajesh. Ld. Addl. PP further argued that second fire made by accused Ram Nath, hit the hip of injured which could not be possible, if gun was held by injured. APPRECIATION OF LAW, FACTS AND EVIDENCE
44. The plea taken by accused Ram Nath Upadhyay in his statement under Section 313 Cr.P.C. and the arguments made by ld. counsel for all three accused persons, make it undisputed fact that a physical altercation had taken place between injured PW1/ Satender Khokhar and accused Ram Nath Upadhyay, as per given time and place of incident. PW1 being injured of gun shot twice in such incident, is also not in dispute. The dispute raised on behalf of defence, is in respect of allegations that accused Mukesh and Rajesh were also part of this incident from the side of accused Ram Nath Upadhyay. Dispute is in respect of allegations that on the exhortation and with the help of accused Mukesh and Rajesh, Ram Nath Upadhyay snatched pistol of PW1 and fired at Satender twice. The plea of defence is that during physical scuffle between PW1 and accused Ram Nath Upadhyay, other two accused namely Mukesh and Rajesh were not present at all. It is further plea of defence that PW1 sustained injuries of gun shot because of accidental firing by him only, which took place during this scuffle and that accused Ram Nath Upadhyay had not snatched away pistol from PW-1, in order to fire at him. Defence has therefore, challenged the credibility of testimony of PW1 and PW4/Smt. Meenu and has taken plea that Digitally signed by PULASTYA Page 29 of 46 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALAASJ-03, North-East District, Date: 2024.05.22 12:14:43 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome Smt. Meenu was not present at the spot at the time of this incident. Defence took support from the testimony of PW7/Ram Gopal, to submit that this prosecution witness also deposed about not having seen sons of Ram Nath i.e. co-accused Mukesh and Rajesh and that this witness also deposed about seeing the revolver in the right hand of PW1, when he was lying injured in front of his house. Defence also challenged the credibility of evidence of police witnesses in respect of recovery of pistol i.e. weapon of offence from the possession of accused Ram Nath Upadhyay.
45. PW1 and PW4 are star witnesses of the prosecution, who supported the case of prosecution. PW1/Sh. Satender Khokhar in his testimony before the court, deposed that he along with his wife had objected to the collection of garbage in front of his house by the daughter of accused Ram Nath Upadhyay. Accused Ram Nath was standing outside his house and he started abusing PW1 and his wife. Accused Ram Nath called his both sons i.e. co-accused Mukesh and Rajesh and thereafter, all three of them started assaulting PW1. They made PW1 fell on the ground. PW1 was carrying his service pistol, which was tucked by the side of his waist. Accused Ram Nath took away his service pistol along with its rope. Other two accused caught hold of PW1 and Ram Nath aimed pistol at PW1 and fired at him, which hit PW1 on his chest. PW1 was trying to free himself from the hold and clutches of other two accused Rajesh and Mukesh. In the meantime, Ram Nath fired second shot at PW1, which hit him on his hip and PW1 fell down on the ground. Wife of PW1 i.e. PW4 raised hue Digitally signed Page 30 of 46 PULASTYA (Pulastya Pramachala) by PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.05.22 12:14:54 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome and cry and many of the people of the locality collected there. PW1 was taken to GTB hospital by his wife with the help of Kamlesh (PW6) and Smt. Satyavati (PW3) and 2-3 other persons. At the time of incident, PW1 was wearing full sleeve T-shirt, full sleeve vest and jeans pant with belt. Those clothes were stained with blood and same were seized by police. PW1 identified his clothes as well as his service revolver.
46. PW4/Smt. Meenu also in her testimony deposed on the same lines as deposed by PW1. As per her testimony, co-accused Mukesh pointed out that PW1 was carrying pistol and accused Rajesh exhorted. Thereafter, accused Ram Nath Upadhyay grappled with PW1 and took away pistol of PW1. He fired it at PW1. PW1 got up and tried to save himself and accused persons then gave exhortation saying that "aaj iska kam tamam kar do". Then Ram Nath fired another shot at PW1, which hit PW1 on the lower part of his abdomen and PW1 fell down on the ground. PW4 with the help of Satyawati and Kamlesh and other persons, took her husband to GTB hospital in a private car. Police reached the hospital and recorded her statement. Subsequently, PW4 had shown place of incident to the police.
47. Prosecution examined three more witnesses as eye witness of the incident. They are above mentioned Satyawati/PW3, Kamlesh/PW6 and Ram Gopal/PW7. PW7 had made call at 100 number regarding this incident. However, all these three witnesses were declared hostile by the prosecution. PW3/Smt. Satyawati was first examined on 11.09.2013. On that day, she deposed before the court that she did not know any fact of this Digitally signed Page 31 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.05.22 12:15:04 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome case and that she even did not know as to what incident had taken place or if any person had sustained injury in any incident. She knew all three accused persons as well as Satender. She deposed that Satender had suffered one bullet injury, who resided at a distance of around 5-6 houses from her house. She further deposed that she could not say that at what point of time and date Satender had sustained that bullet injury. Thereafter, this witness was discharged without further examination and the court recorded that she appeared very depressed and she was unable to even hold herself. To every question concerning the facts of this case, she had been outrightly answering that she did not know and hence, it was difficult to proceed further with her examination. Thereafter, this witness was finally examined on 11.03.2024 when ld. Addl. PP for the State cross-examined her. As per her cross-examination, she knew Renu i.e. daughter of Ram Nath Upadhyay. She was present at her home on 21.12.2011 and she remembered that day because on that day her grand- daughter had taken birth. Satender Khokhar/PW1 used to purchase milk from her dairy, but on 21.12.2011 PW3 did not meet Satender, nor did she see him. Though, she was present at her house during morning hours. PW3 further denied having stated before the court in this case during her examination on last occasion that Satender had suffered a bullet injury. She was confronted with her examination in chief dated 11.09.2013 from point A to A1, wherein it was so recorded. She admitted her signature as appearing on the said statement. Thereafter, she denied having made any statement before police about incident Digitally signed Page 32 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALA District, PRAMACHALA Date: 2024.05.22 12:15:13 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome of 21.12.2011. She denied all the suggestions as put by ld. Addl. PP on the basis of facts mentioned in her statement under Section 161 Cr.P.C.
48. As per testimony of PW6, she was residing at C-481 in the same gali for last 28/29 years and she knew all the accused persons in this case. She also knew PW1. She could not tell any date, month or year, but according to her during morning hours PW1 had come to dairy located in front of her house for taking milk. PW1 was carrying pistol with him and besides this she did not know anything else about this case. She was cross-examined by ld. Addl. PP and in her cross-examination, she deposed that she knew Renu i.e. daughter of Ram Nath Upadhyay. Thereafter, she showed ignorance if on 21.12.2011 at about 8:30 AM, she was present in front of her house and thereafter, she had seen all the incidents as alleged in this case. Her all the answers started either with "I do not know" or "I cannot say", when she was asked all the facts arising out of alleged incident. She denied the suggestion that she along with PW4 and PW3 removed PW1 to GTB hospital or that she also went to GTB hospital or that the incident had taken place in her presence. She denied having made statement before the police as recorded in her statement under Section 161 Cr.P.C.
49. On the other hand, PW7/Sh. Ram Gopal deposed that he was residing at C-507 for last 30 years. On 21.12.2011 at about 8.20 AM, he was going to drop his children in the school. Accused Ram Nath and PW1/Satender were reasoning with each other. They were quarreling. PW7 tried to pacify them, but PW1 called Digitally signed Page 33 of 46 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.05.22 12:15:21 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome his wife and directed her to bring revolver. Accused Ram Nath was in police uniform. PW7 proceeded towards his home and then he heard sound of fire. He again heard sound of second fire. He requested the persons present there to give him phone for making call to police, but none gave him the phone. Then he reached his home and informed police at 100 number through his mobile no. 9818068897. PW7 further deposed that he saw that Satender was lying smeared with blood and he was having revolver in his hand. PW7 helped Satender in removing him to GTB hospital and thereafter, he went to his job. He also deposed that both these persons were quarreling on the issue of garbage. This witness was cross-examined by ld. defence counsel, wherein he deposed that after hearing the noise of fires, when he returned to the spot, he saw that Satender was lying in front of his house on the platform. Satender was holding revolver in his right hand and PW7 had not seen sons of accused Ram Nath at that place.
50. PW1 and PW4 were cross examined by defence counsel at length. During his cross-examination by defence counsel, PW1 deposed inter alia that he was conscious and speaking, when he reached the hospital in injured condition. PW1 further deposed that his wife and some neighbors comprising of Satyawati, Kamlesh and 1-2 other male persons had taken him to the hospital in a private car of some neighbor. PW1 was seated on the rear seat of said car. PW1 further deposed that neither he disclosed, nor did doctor ask him the name of the person, who had fired upon him. PW1 further deposed that he remained outside for about five (5) minutes and thereafter, he was taken to Digitally signed Page 34 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Date: 2024.05.22 12:15:27 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome the operation theater. PW1 further deposed that his statement was recorded in the hospital, after he regained his consciousness on the next day. PW1 also deposed that he was in the lap of Meenu (PW4) on the rear seat of the car, as he was not in a position to move. His blood had fallen on the wearing clothes i.e. salwar suit of his wife Meenu. PW1 further deposed that clothes of his wife were not taken into police possession till his deposition before the court and he was not aware, if same were seized. PW1 was confronted with his statement recorded under Section 161 Cr.P.C. Ex.PW1/DA in respect of his deposition that "accused had made him to fell on the ground" and that "he was trying to free himself from the hold and clutches of other two accused Rajesh and Mukesh". Such statements were not recorded in Ex.PW1/DA in specific terms, though it was recorded therein that PW1 tried to free himself from their clutches and tried to run away. PW1 admitted that his clothes were taken on the same day, though his statement was not recorded to this effect. PW1 further deposed that quarrel had carried on for about 5-7 minutes and 10-20 persons from his neighborhood including Satyawati and Kamlesh, had collected there. PW1 further deposed that accused Ram Nath was at a distance of about 5-6 feet, when he had sustained first bullet injury. PW1 also deposed that accused Rajesh and Mukesh had caught hold of him at that time. He further deposed that none of the neighbors had tried to intervene in the quarrel when it first started. PW1 denied the suggestion that his weapon i.e. service pistol was in his hand, when he sustained bullet injuries in the scuffle. PW1 also denied the Digitally signed Page 35 of 46 (Pulastya Pramachala) by PULASTYA PULASTYAASJ-03, North-East PRAMACHALA District, PRAMACHALA Date: 2024.05.22 12:15:34 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome suggestion that during the scuffle he had sustained bullet injuries with his own hand. PW1 voluntarily deposed that accused Ram Nath snatched the revolver and fired upon him.
51. During her cross-examination by ld. defence counsel, PW4 deposed inter alia that she, her husband and Satyawati were seated on the back seat of the vehicle. PW4 was holding the head of her husband, on her lap. PW4 further deposed that her clothes were soaked with blood, but she could not tell if clothes of Satyawati got stained with blood or not. PW4 further deposed that her blood-stained clothes were not taken into possession by the IO. PW4 further deposed that neither doctor nor did Duty Constable present there, questioned her as to who had shot fire upon her husband. Even doctor did not ask her about the time when shot was fired. PW4 further deposed that Satender was conscious and speaking when he was being transported to hospital. PW4 remained present in the hospital when the treatment of Satender started inside. She was not allowed to go inside when treatment of Satender started. PW4 further deposed that during the time of incident 3-4 persons from the neighborhood had gathered and gathering continued to increase. Ms. Kamlesh and Satyawati were among those who had gathered on the spot. She further deposed that Satender had fallen on the ground due to assault given by the accused persons and at that time he was having revolver in its leather case. She further deposed that all the three accused persons assaulted her husband even after he fell down on the ground. All the three accused persons had captured her husband. Her husband was trying to Digitally signed Page 36 of 46 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03,PRAMACHALA North-East District, PRAMACHALA Date: 2024.05.22 12:15:42 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome save himself when he fell on the ground and he was changing his position during this process. She further deposed that first bullet injury was sustained by her husband when he was standing. She further deposed that accused Ram Nath Upadhyay had fired shot and remaining two accused persons had caught hold of hands of her husband from both sides. She further deposed that first fire was shot on her husband from the distance of about 2-3 feet. The second fire was shot on her husband when he tried to run away and it was fired at a distance of about 3 feet. PW4 further deposed that blood had fallen on her clothes when she seated in the car by taking her husband in her lap. She further deposed that she cannot tell if blood had fallen inside the car. Even she did not try to stop the flow of blood with anything. She further deposed that Ms. Kamlesh met her in the hospital. When her husband was admitted in the hospital, at that time Ms. Satyawati, Ms. Kamlesh and the other persons who had brought her and her husband in the car, were also with her. PW4 further deposed that when she returned home, then police were present at the spot. Police had inspected the spot and prepared site-plan. Empty shell was lying there and police lifted said empty shell. She further deposed that she did not remember the exact time of her return from the hospital at the spot, however it was afternoon time. She further deposed that police had inquired from her about the incident and the spot, where incident had happened. She further deposed that wearing clothes of her husband were removed in the hospital and same were not given to her.
52. In the cross examination of PW1 and PW4, ld. defence counsel Digitally signed by PULASTYA Page 37 of 46 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03,Date:
North-East District, 2024.05.22 12:15:50 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome raised questions about habit of PW1 to bring his service pistol to his home without having authority to do so. He raised this issue during arguments also. However, this is not a disciplinary proceeding against PW1, wherein such question could have been relevant. In this case, defence has not disputed that PW1 was injured with firing from his service pistol. Defence has taken plea that PW1 sustained these injuries in a scuffle between PW1 and accused Ram Nath and that PW1 himself had taken out this pistol. This court has to find out as to whether allegations made by prosecution regarding the manner in which PW1 sustained gunshot injuries, are true or the plea of defence is correct or probable. Therefore, the question whether PW1 was authorized to bring his service pistol at home, is irrelevant in this trial. For same reasons, I do not find other arguments raised by defence viz. questions raised over credibility of recovery of pistol from accused Ram Nath and seizure of case properties from the place of incident, omission to take permission to visit U.P. or to make DD entry in police station of Loni at the time of arrest of accused Rajesh, to be having much impact over actual issue involved in this case.
PRESENCE OF ALL ACCUSED IN THE INCIDENT AND FIRING AT PW-1
53. Defence has challenged the credibility of evidence of PW1 and PW4, to say that accused Rajesh and Mukesh were not present at the place of incident, and to say that accused did not snatch pistol from the possession of PW1 nor did he fire at him, rather pistol was taken out by PW1 and it fired during scuffle between Ram Nath and PW1. Therefore, I shall assess the evidence with Digitally signed by Page 38 of 46 (Pulastya Pramachala) PULASTYA PULASTYA ASJ-03, North-East PRAMACHALA District, PRAMACHALA Date: 2024.05.22 12:15:57 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome objective to determine aforesaid issue.
54. First of all, it is relevant to note the sequence of injuries. First of all, PW1 sustained gunshot injury on his chest. The actual place of this injury is explained in MLC/Ex.PW/14/A at serial number
1. The second gunshot was received by PW1 on his left hip with entry point being on the backside of hip. This injury finds mention in MLC at serial number 5. There was blackening around both of these wounds, which shows that firing was done from a close range. The age of PW1 was 33 years in the year 2013, when he was examined in the court. That means that he was around 31 years old at the time of incident. On the other hand, from the copy of official identity card of accused Ram Nath, his age at the time of incident appears to be around 58 years (D.O.B.-02.01.1953). If I assume that it was scuffle between accused Ram Nath and PW1 only, and that PW1 had taken out the pistol and pointed it at Ram Nath, then it would mean that accused Ram Nath, despite being a person of almost double age, overpowered PW1 and bent hand of PW1 so much as to change the direction of pistol from him to just opposite in direction towards chest of PW1. This situation does not appear to be a normal and possible situation, unless it would have been shown that PW1 was physically too weak person and accused Ram Nath was physically very strong person. There is not even a suggestion to this effect from the side of accused persons.
55. After being shot at his chest, it could not be normal act on the part of PW1 to continue scuffle with Ram Nath, in order to fire again thereby hitting backside of his left hip. Here it would be Digitally signed by PULASTYA Page 39 of 46 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.05.22 12:16:06 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome relevant to mention that defence heavily relied upon testimony of PW7, to say that pistol was seen in the right hand of PW1. If the pistol would have been in the right hand of PW1, then stretching right hand to such an extent as to point the pistol on the back side of left hip of PW1, is again not normally possible. Therefore, the theory projected by defence about firing by PW1 himself during scuffle with accused Ram Nath, does not stand the test of possibility.
56. On the other hand, picture of incident as depicted by PW1 and PW4, appear very consistent with the chain of events. It was only with the help of accused Rajesh and Mukesh, that it was possible for Ram Nath to take away pistol from the possession of PW1. It was also possible that after firing at PW1 on the first occasion, PW1 would have tried to free himself from the hold of accused Rajesh and Mukesh. It would obviously have been a matter of saving his life for PW1 and therefore, in the process of that effort and moment of movement, second gunshot hitting PW1 on the backside of his left hip, was quite normal scenario. This situation lends much credence to the testimony of PW1 and PW4 in respect of sequence of the incident.
57. As far as distance of firing as mentioned by PW1 and PW4, is concerned, it cannot be forgotten that such questions are answered by a witness more a less based on their estimation, rather than actual measurement. Therefore, the given distance may not be taken as actual distance. PW1 was initially assaulted by all three accused and thereafter, pistol was taken away by Ram Nath and he fired at PW1. He was not needed to move back Digitally signed Page 40 of 46 PULASTYA (Pulastya Pramachala) by PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.05.22 12:16:13 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome much and it would have been a close distance. Defence himself produced two witnesses, claiming that being neighbor DW1 and DW2 had seen the incident. This claim of defence is supportive of case of prosecution also, wherein PW1 and PW4 claimed that neighbors had assembled there and hence, all accused flee away from that place.
58. It is true that after arrest of accused Ram Nath, IO should have taken his handwash, to get it examined for presence of gun powder. Handwash of PW1 also could have been taken to rule out the contrary theory. However, these measures depend upon knowledge and presence of mind of an IO. These steps should have been ideally taken by him. But, for such omission on the part of IO, I cannot ignore the other concrete evidence regarding the incident.
59. Now I shall discuss the effect of testimony of PW3, PW6, PW7, DW1, DW2 and DW3. PW3 on the first occasion of her examination deposed that she knew that PW1 had suffered bullet injury, but she did not know the date or time of incident. However, during her further examination on second occasion, she outrightly disowned her initial statement regarding PW1 having suffered bullet injury. This situation shows that PW3 had come with pre-determined mind set to altogether deny any knowledge about this incident and in that flow, she even could not take care that she was denying her own statement as given on oath before the court during previous occasion. The reasons are not much difficult to guess. PW3 was deposing falsely, apparently under influence of accused persons, who were still her neighbors, Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 41 of 46 (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East Date: District, 2024.05.22 12:16:21 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome though family of PW1 had shifted away from that locality.
60. PW6 was also resident of same street. She deposed that on the day of incident, during morning hours PW1 came to a dairy situated in front of her house and he was carrying pistol with him. But she did not know anything else about this incident. PW1 and PW4 both stated that PW3 and PW6 had come to place of incident. Name of PW6 was also mentioned on the MLC of PW1 as the person who brought PW1 to the hospital. It cannot be assumed that, at that particular time of panic, either PW1 or PW4 would have falsely mentioned name of PW6 before the doctor, in order to get her name mentioned in the MLC. The doctor could not have mentioned name of PW6 on his own. Being resident of same street and neighbor of both the parties, presence of PW6 at the time of incident and her accompanying injured PW1, was very much natural and normal course of action. Hence, once again I find that probably for same reasons (as attributed to PW3), even PW6 opted to take side of accused persons and to falsely deny having seen and known anything about incident.
61. As already mentioned herein above, after the incident call at 100 number was made from mobile number 9818068897. PW7 deposed that he had made the call from this number at 100 number and it was his mobile number. The relevant DD entry no. 8A was proved as Ex. PW2/A, without any dispute from defence. This DD entry mentions the same mobile number of the informant. Thus, it can be safely assumed that the information recorded in this DD entry was conveyed by PW7. This DD entry mentions the information as "someone has shot some person".
Digitally signed Page 42 of 46 by PULASTYA(Pulastya Pramachala) PULASTYA PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2024.05.22 12:16:27 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome This DD entry also mentions the address of PW7 itself. However, PW7 in his testimony before the court claimed that he heard noise of firing. He again heard noise of second fire. He requested the persons present there to give him their phone to make call to the police, but none agreed. Then he reached his home and made aforesaid call. His statement shows that he was present in that street at the time of the incident, but this witness did not say anything about the incident, so as to explain that who had fired at whom. The above-mentioned information given to police has plain meaning to say that one person had shot another person. But, PW7 deliberately kept mum over this fact and went on to say in his cross examination by ld. defence counsel that he did not see Rajesh and Mukesh present at that place and that pistol was in the right hand of PW1, at the time when PW1 was lying in front of his house. I have already demonstrated impossibility of PW1 being shot at the given parts of his body, by keeping pistol in his right hand or him being shot without help of Rajesh and Mukesh. Thus, I find that this witness also did not depose truthfully before the court.
62. DW1 simply deposed that he saw one person and Ram Nath having physical altercation and about opponent of Ram Nath taking out pistol. He went to terrace of his house and continued watching that quarrel. But he did not see the incident of firing. On the other hand, DW2 deposed that when he was watching this incident from inside of his house, PW1 was holding the pistol. The pistol fired and PW1 fell down in front of his house. Even at the time of felling down, pistol was in the hands of PW1. Thus, Digitally signed Page 43 of 46 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, PRAMACHALA North-East District, Date: 2024.05.22 12:16:34 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome this witness deposed about only one fire and PW1 felling down with pistol in his hands. This is apparently not consistent with the actual incident. For the reasons already mentioned herein above, I find that both these defence witnesses also deposed falsely and gave incorrect and modified version/account of the incident.
63. DW3 introduced himself as brother-in-law of sister of accused Rajesh and Mukesh. He claimed that both these accused persons had stayed overnight at his house in the night of 20.12.2011 and police came to his house on 21.12.2011 (date of incident) at about 10-10.30 AM and took away both these accused persons from his house. However, interestingly such claim of DW3 is falsified by the plea taken by accused Mukesh in his statement under Section 313 Cr.P.C. itself. Mukesh did not claim that he was lifted by police from the house of DW3. He took stand that his father Ram Nath was taken away by police from their own house in the afternoon and he (Mukesh) was subsequently informed that he was also accused in this case, therefore, he himself surrendered before the police. Even prosecution has also taken stand that Mukesh had surrendered before the police. Thus, DW3 in his zeal to help these accused persons, gave false statement before the court about these two accused being present at his house on 21.12.2011 and about police taking them away from his house on 21.12.2011 at 10-10.30 AM. Even accused Rajesh did not take any such plea that he had stayed overnight at the house of DW3 on 20.12.2011. Thus, I find that evidence relied upon defence in this case, to establish alibi for accused Rajesh and Mukesh, do not hold ground and these witnesses Digitally signed Page 44 of 46 by PULASTYA (Pulastya Pramachala) PRAMACHALA PULASTYAASJ-03, North-East District, PRAMACHALA Date:
2024.05.22 12:16:44 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome actually deposed falsely before the court.
64. In the case of Govindaraju (supra), Hon'ble Supreme Court referred to its judgment passed in Lallu Manjhi and Anr vs. State of Jharkhand, (2003) 2 SCC 401, wherein Hon'ble Supreme Court had classified the oral testimony of the witnesses into three categories: -
"a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable."
In the said judgment, Hon'ble Supreme Court also observed that: -
"12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness-at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph v. State of Kerala 2003 (2) JCC 811: (2003) 1 SCC 465 and Tika Ram v. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and Others v. State of Bihar 2002 (1) JCC 51: (2001) 10 SCC 94, this Court took the view that if the presence of a witness is (not) doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as said witness is reliable and trustworthy."
CONCLUSION & DECISION
25. In view of my foregoing discussions, observations and findings, I find that testimony of PW1 and PW4 are reliable. Their stand Digitally signed by PULASTYA Page 45 of 46 PULASTYA PRAMACHALA (Pulastya Pramachala) PRAMACHALA Date:
ASJ-03, 2024.05.22 North-East District, 12:16:53 +0530 CNR No. DLNE010002012012 State v. Ram Nath Upadhyay etc. SC No. 44601/15, FIR No. 468/11, PS Welcome remained consistent even during their cross examination. Hence, it is concluded that accused Ram Nath Upadhyay, Mukesh Kumar and Rajesh, did assault PW1 during the incident. PW1 was shot twice by accused Ram Nath using service pistol of PW1, which he took away from the possession of PW1 with the help of co-accused Rajesh and Mukesh. Accused Rajesh and Mukesh facilitated firing at PW1 by their father accused Ram Nath Upadhyay. This was so done by all the accused persons, in furtherance of meeting of their mind and common intention, which came into existence at the time when quarrel started between Ram Nath Upadhyay and PW1. It is not difficult to assume that all three accused persons must have been aware that death of PW1 could have been caused by firing at him. Therefore, all three accused are held guilty of offence punishable under Section 307 read with Section 34 IPC. Accused Ram Nath Upadhyay is also held guilty of offence punishable under Section 27 Arms Act, 1959. Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.05.22 12:17:01 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 22.05.2024 ASJ-03(North East) (This judgment contains 46 pages) Karkardooma Courts/Delhi Page 46 of 46 (Pulastya Pramachala) ASJ-03, North-East District,