Delhi District Court
State vs Shashank Harshit Singh 1 Ors on 6 December, 2023
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- 05, EAST,
KARKARDOOMA COURTS, DELHI
In the matter of:-
S. C. No. 1556/16
CNR No. DLET01-006647 -2015
FIR No. 2384/2014
Police Station Shakarpur
Under Section U/s 302/336 IPC
State
Versus
1. Shashank Harshit Singh
S/o Sh Avinash Kumar Singh
R/o Village & PS Garhwar,
Dsitrict Ballia, Uttar Pradesh
2.Robin Kumar @ Robin Singh
S/o Sh. Vinod Kumar
R/o VPO Gubhana, PS Bahadurgarh,
District Jhajjar, Haryana ..... Accused Persons
Date of institution 12.02.2015
Judgment reserved on 24.11.2023
Judgment Pronounced on 06.12.2023
Decision Accused Shashank
convicted and accused
Robin acquitted
JUDGMENT
1. Accused Shashank Harshit Singh is facing trial on allegations of committing murder of Raghu and accused Robin is facing trial on allegations of negligently placing his service pistol so as to endanger human life.
Judgment 1 of 27
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
Initial Complaint & FIR
2. Brief facts of the case are that on 15.11.2014, DD No.37A (Ex PW33/A) was recorded at 20:35 Hours in respect of gun shot fire at house no. S-90, School Block Shakarpur, Delhi. On this information, SI CL Meena (PW37) and Ct. Om Prakash (PW4) reached at the spot. They noticed blood spots on the stairs and came to know that injured was taken to Jai Prakash Narayan, Trauma Center by his friends.
3. Beat Officer HC Salek Chand (PW13) who reached there was asked to protect crime scene and SI CL Meena & Ct. Om Prakash went to Trauma Center where injured Raghu was found under treatment and was unfit for statement. In the Hospital, statement of eye witness / complainant Vipin Singh (PW9) was recorded. It's translation reads as under:
I reside at aforesaid address, I am temporarily living in Sec-21 Dhundhahera, Gurgaon Haryana and working as Area Supervisor at Coffee Cafe Day in Sec-21 Dhundhahera itself. In H.No S-90, 1st Floor, School Block, Shakarpur, Delhi, my bua's son Raghavendra @ Raghu S/o Shri Krishna Singh R/o Village Tangunia, Post- Chainpur Gulora, Police Station- Ubhaav, District Ballia UP, aged 19 years, who is studying B.Com from Amity University, Noida is staying, often I come every Judgment 2 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Saturday and Sunday and on holidays. That I had come to Raghavendra house on 15-11-2014 at 7.00 pm for a holiday at the above mentioned Shakarpur address. That at aforesaid Shakarpur address, along with Raghu four boys (1) Shanshak Harshit Singh S/o Shri Avinash Singh r/o Village Post, Gandwar, Police Station Mandwar District Ballia UP age 19 years, (2) Amit Gupta s/o Shri Dilip Kumar Gupta r/0 Village Post Beldhara, Road, Police Station Ubhaon District, Ballia UP age 18 Years (3) Samrat Hooda s/o Shri Ranveer Hooda r/o Village Post, Jasiya, Police Station Sadar District Rohtak (Haryana) age 30 Years (4) Surender, a Constable who is posted in PS Shakarpur, lives on rent. Surender sometimes comes there and sometimes his friend Robin Singh, who is also constable in Police Station Shakarpur, Delhi, also comes to change his uniform/clothes and get fresh. Robin Singh had come yesterday evening at around 8.15 PM and Surender was not there and my bua's son Raghu and the other three boys were present in the same flat. While me and my bua's son Raghu were lying in a room and playing a game on mobile, Robin came and put his uniform and Pistol (Government) on the mattress spread on the floor of the other room. Amit, Samrat and Shashank were present in that room. Robin called Raghu and asked whether he had eaten the food. If not, then bring his (Robin's) and everyone else's food from the market today. Raghu got up and stood in front of the gate of the room and after two-four minutes I also went and stood next to him. While the food menu was being discussed, suddenly the Shashank Harshit Judgment 3 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Singh above picked up the government pistol kept on the mattress lying on the floor of Constable Robin and said that these days Raghu, you have become very scoundrel, you will have to be corrected and after saying this, fired bullet at him, which hit his head above his left eye, due to which he fell on the floor with a thud and started bleeding profusely. We immediately gave him First Aid and tried to stop his bleeding and suddenly Robin brought an auto, in which me, Samrat, Amit and Shashank together took Raghu to J.P.N.A. Trauma Center, AIIMS, New Delhi and admitted him for treatment where Raghu is undergoing treatment. Constable Robin had kept his service pistol openly in the room without taking any precaution, if he had not done so, this incident would not have happened. This incident happened due to the negligence of Constable Robin. ....
4. On the basis of above statement of complainant and MLC of injured and FIR under section 307/337 IPC and under Section 27/54/59 Arms Act was got registered. Place of occurrence was got inspected from the crime team and photographs were taken.
5. At the instance of witness Samrat, site plan of the place of occurrence was prepared. Pistol and magazine which was found at the place of occurrence was inspected and it was found that there were 9 live cartridges in the magazine which were Judgment 4 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr taken out. Sketch of the pistol and cartridges was prepared and the pistol and cartridges were seized. Blood sample were taken in a gauze piece from the wall and earth of the place of occurrence.
6. Vide DD No. 8A (Ex PW17/A) dated 16.11.2014 at 9:45 AM an information was received that injured Raghu @ Raghvendra Singh has unfortunately got expired. Postmortem of the dead body was got conducted and section 302 IPC was invoked in the case. Statement of eye witness Amit Gupta was recorded and Section 337 IPC was altered to Section 336 IPC.
7. Accused Shashank Harshit Singh was arrested and was sent to judicial custody. Accused Robin was also arrested for the offence punishable under section 336 IPC but since the offence was bailable, accused Robin was released on bail.
8. During investigations, exhibits were sent to FSL, statement of witnesses, Vipin Singh, Amit Gupta and Samrat Hooda were got recorded under section 164 Cr.P.C. After completion of the investigation, charge sheet was filed against the accused persons.
Charge
9. Charge for the offence punishable under Judgment 5 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Section 302 IPC was framed against accused Shashank Harshit Singh and charge for the offence punishable under Section 336 IPC was framed against accused Robin. Accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
10. Prosecution examined 37 witnesses.
S Name Nature Deposition
PW1 Amit Gupta Eye witness Deposed that he saw accused
Shashank picking pistol and
inspecting it and pistol went
off. His statement is proved
as Ex. PW1/A.
PW2 Ram Bali Public Identified dead body of
deceased vide Ex PW2/A
PW3 SS Aggarwal Landlord of Deposed that he rented out
the premises the place to Ct. Surender of Delhi Police PW4 Ct. Om Police Went to the spot with PW37 Prakash SI CL Meena, he took rukka from the Hospital and got registered FIR, he proved seizure of pistol (Article 4) and 9 live cartridges (Article 5 to 14) vide memo Ex PW4/A and also seizure of hand-wash & clothes of accused Shashank vide memo Ex. PW4/B PW5 Ct. Surender Tenant of the Deposed that he took premises premises in question on rent with Samrat Hooda and accused Robin also used to share rent & stay in room. He deposed that in another room of the premises deceased Raghu, accused Shashank and Amit were Judgment 6 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr residing as tenant. He proved seizure of exhibits after post- mortem of deceased as per memo as Ex PW5/A. He also deposited case property with FSL.
PW5 Samrat Hooda Eye witness Deposed in respect of the incident, proved sketch of pistol as Ex PW5/A and also his statement recorded under Section 164 Cr.P.C as Ex PW5/B. PW7 Ct. Sanjay Police Deposited viscera of deceased with FSL PW8 Ct. Sheovir Police Proved disclosure statement of accused Shashank as Ex PW8/A PW9 Vipin Singh Complainant / Deposed in respect of the Eye witness incident, proved his statement as Ex PW9/A, identified dead body of Raghu vide memo as Ex PW9/B and also proved his statement recorded under Section 164 Cr.P.C as Ex PW9/C. PW10 Dr Rajnikant Doctor Examined accused persons vide MLCs Ex PW10/A & B PW11 Ct Vikas Photographer Took photographs Ex PW11/P-12 to P-22 of place of occurrence and proved its negatives as Ex PW11/P-1 to P-11 PW12 SI Sanjay Crime Team Inspected crime scene as per Saxena his report Ex. PW12/A PW13 HC Salek Police Remained at the place of Chand occurrence to protect crime scene PW14 Insp. Mahesh Drughtsman Prepared scaled site plan Ex Kumar PW14/A of place of occurrence Judgment 7 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr PW15 Ct Ranvir MHC(M) Issued 9mm pistol and 10 live cartridges to accused Robin vide register entry as Ex PW15/B and proved seizure of register from him as per memo Ex PW15/A. PW16 Chunni Devi Relative of Gave her ID proof to deceased deceased to obtain mobile connection 9212132219 PW17 HC Rajesh Police Recorded DD 8A as Ex.
PW17/A in respect of death of deceased Raghu PW18 HC Mahesh MHC(M) Proved issuance of a 9mm pistol and 10 live cartridges to accused Robin vide documents Ex PW15/A, B & C-1 & C-2.
PW19 Ms Surabhi Ld MM Recorded statement
Sharma Ex.PW5/B of witness Samrat
Hooda under 164 Cr.P.C vide
proceedings Ex
PW19/A, B & C
PW20 Ms Babita Ld MM Recorded statement
Puniya Ex PW1/A of witness Amit
Gupta under 164 Cr.P.C vide
proceedings
Ex. PW20/A, B & C
PW21 Ajay Kumar Nodal Officer Proved CDR, Cell ID & CAF
Bharti Airtel of mobile number
9810725498 & certificate
under Section 65 (B) I E Act
as Ex PW21/A to D.
PW22 Rajeev Ranjan Nodal Officer Proved CDR and CAF (with TATA Tele identity proof) of mobile numbers 9212192249 & 9212132219 both in the name of Chunni Devi & certificates U/s 65 (B) I E Act as Ex PW22/A to H. PW23 Pawan Singh Nodal Officer Proved CDR, Tower location IDEA Cellular Chart & CAF of mobile Judgment 8 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr number 8743821704 of Samrat Hooda & certificate under Section 65 (B) I E Act as Ex PW23/A to E. PW24 Saurabh Nodal Officer Proved CDR, CAF of mobile Vodafone number 8860938160 in name of Rajesh & certificate under Section 65 (B) I E Act as Ex PW24/A, B & C. Proved CDR, CAF of mobile number 8010972518 in name of Sachin & certificate under Section 65 (B) I E Act as Ex PW24/D, E & F. Proved CDR, CAF of mobile number 8287550425 in name of Priyamvada & certificate under Section 65 (B) I E Act as Ex PW24/G, H & I. He also proved location Chart as Ex PW24/J. PW25 HC Danvir Duty Officer Proved FIR Ex PW25/A, his endorsement on rukka as Ex PW25/B. Certificate u/s 65(B) Indian Evidence Act as Ex PW2/C. PW26 Dr Om Doctor Proved MLC of deceased as Prakash Ex PW26/A PW27 Puneet Puri FSL Proved Ballistics Reports in respect of weapon of offence as Ex PW27/A & B PW28 Dr Sarabjeet FSL Proved biological report in Singh respect of blood recovered from spot and of deceased as Ex PW28/A. PW29 SI Amit Verma Police Proved arrest and personal search of accused persons vide memo as Ex PW29/A, B, C & D. PW30 Amarpal Singh FSL Examined viscera of deceased vide his report as Ex PW30/A. Judgment 9 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr PW31 Sh Sonu Ld MM Recorded version of Agnihotri complainant in his order Ex PW9/D. PW32 ASI Virender MHC(M) Proved deposit of case property with malkhana vide documents Ex PW32/A to J PW33 ASI Hem Duty Officer Recorded DD No.37A as Ex Chand PW33/A in respect of firing and also recorded DD 3A as Ex PW33/B. PW34 Mohd Sajid Public Deposed that Amit Gupta obtained mobile number 8860938160 on his ID, further deposed that deceased Raghu, accused Shashank and Amit Gupta were friends and residing in same flat.
PW35 Dr Pradeep Doctor Proved post-mortem report Yadav of deceased Ex PW35/A PW36 Insp. Nipun Investigating Recorded statement of eye Officer witness, altered offences, arrest and recording of disclosure statements of accused persons as Ex PW36/B & C and obtained CAF & CDR of accused persons as Ex PW36/D PW37 Insp CL Initial Collected MLC of injured Meena Investigating Raghu, recorded statement of Officer eye-witness Vipin, prepared rukka Ex PW37/A, proved seizure of case property i.e. pistol, 9 live cartridges and one empty cartridge from the spot, prepared death report as Ex. PW37/D, handed over the dead body to the relatives of deceased. Seized exhibits of deceased after his post-
mortem vide memo Ex. PW5/A. Judgment 10 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Plea of Accused Persons
11. In their statement recorded under Section 313 Cr.P.C accused persons claimed their innocence. Accused Shashank stated that he was in the other room when the incident happened and accused Robin stated that he kept his pistol at the designated spot and in locked condition. Accused Robin further stated that when he went to answers the nature's call the incident happen. Accused persons did not lead evidence. P rosecution Arguments:
12. Sh. R K Satyarathi, Ld. Addl. PP submitted that complainant and other eyes witnesses have described the entire incident. It is submitted that testimony of prosecution witnesses is trustworthy and truthful and same stands corroborated by medical and forensic evidence. It is argued that testimony of prosecution witnesses establishes that accused Shashank Harshit Singh fired bullet on deceased Raghu with motive to commit his murder. It is further argued that accused Robin who is Constable in Delhi police behaved in a negligent manner and could not keep his service pistol in safe custody which came in the hands of accused Shashank Harshit Singh who used it to eliminate deceased. Therefore, accused is liable to be convicted for all the offence he is charged with.
Judgment 11 of 27
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
13. On the other hand, Ld. Defence Counsel for accused Shashank Harshit Singh submitted that there are material contradictions in the statements us 161 Cr.P.C. and l64 Cr.P.C. given by the witnesses and the benefit of doubt of these contradictions must go to accused. It is submitted that accused Shashank in his statement recorded under Section 313 Cr.P.C. also disputed his presence at the exact place of the incident which is also supported by the eve-witnesses of the case.
14. Defense has also pointed out towards conduct of accused by submitting that facts of the case establish that Shashank did not flee from the spot but has took care of the deceased and took him to the hospital and remained there. It is argued that from the investigation and proceedings of trial there is no concrete evidence against Shashank, that he had any mens-rea or malafide intention or motive in this case. It is argued that in absence of any incriminating evidence, accused is entitled to be acquitted.
15. On behalf of accused Robin, it is submitted that he did not commit any negligence. It is stated that accused Robin was staying in the room Judgment 12 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr where the incident happened and he had kept his service pistol in a drawer at its usual place. It is submitted that no evidence has come on record against accused Robin attributing any negligence on his part and hence, accused Robin is liable to be acquitted.
16. I have heard Ld Additional APP for State and Ld Defense Counsels. I have also gone through written submissions filed on record on behalf of accused persons. I have perused the material on record.
Analysis And Discussion
17. Homicidal Death of Raghu @ Raghavendra: PW35 Dr Pradeep Yadav conducted post-mortem on the dead body of deceased as per his report Ex. PW35/A. He deposed that after the postmortem, he found that the cause of death as Cranio-cerebral damage and its complications resulting from projectile of firearm. Injury was found ante-mortem in nature. In his cross- examination, Dr Pradeep deposed that bullet and some of its pieces were present in the skull cavity of deceased at the time of post-mortem which was removed by him.
Judgment 13 of 27
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
18. Post-mortem report and deposition of Dr Pradeep Yadav has not been disputed by the defence. Medical evidence and expert evidence brought on record by the prosecution conclusively proves that cause of death of deceased Raghu @ Raghavendra was fire arm injury and he died a homicidal death.
19. Weapon of Offence: Dr Puneet Puri, Assistant Director, Ballistics, FSL examined pistol and nine live cartridges as per his report Ex. PW27/A. A used cartridge, 9 live cartridges and a pistol were found at the spot which were seized by PW37 Inspector C.L. Meena as per seizure memo Ex. PW4/A and the sketch of recovered article is proved on record as Ex. PW5/A.
20. As per the FSL Report Ex. PW27/A, pistol exhibit as Article-4 recovered from the spot is found to be a firearm as defined under Arms Act and the fired cartridge (Ex. Article-14) is found to be fired through the pistol Article-4.
21. Deposition of PW15 Ct. Ranvir Singh and PW18 HC Mukesh Kumar both have proved the relevant record that the pistol (Ex. Article-4) was issued to accused Robin from the Malkhana of PS Shakarpur and the same is the weapon of offence.
Judgment 14 of 27
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
22. Incident in question: Prosecution case is that accused Shashank fired a bullet with service pistol of accused Ct. Robin on Raghu @ Raghavendra with intention to kill him. Let us examine what prosecution witnesses have deposed in respect of the incident.
23. PW1 Amit Gupta who is an eye witness to the incident deposed as under:
On the date of incident i.e. 15.11.2014, myself, Shashank, Vipin, Samrat and Robin, the accused present before the court (witness pointed out towards accused Robin who is standing in the dock, correctly identified by the witness) were present in the above said rented house at School Block. Deceased Raghvender @ Raghu was also present. Accused Robin was acquaintance of Surender and Raghvender @ Raghu. Vipin used to come to meet Raghvender @ Raghu every Saturday and Sunday and on that day he was present there.
It was about 8 pm, myself, Raghvender @ Raghu and Vipin were present in one of the room of the above said flat. In the other room, accused Shashank was present. At that time, accused Robin had come to the flat. After sometime, Samrat had also come Robin who was constable in Delhi Police removed his service pistol and placed it on mattress on the floor of the room in which Shashank was there and Robin started changing his uniform. I, Vipin and Raghvender @ Raghu went to the said room and stood at the door of the said. We were Judgment 15 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr talking to one another and in the mean time, accused Shashank picked up the service pistol of accused Robin and suddenly pistol got fired (achanak goli chal gayi) and the bullet hit Raghvender @ Raghu on his head above the eye. At that time, Raghvender @ Raghu was standing at the door of the said room. Immediately after receiving the gun shot, Raghvender @ Raghu fell down and become unconscious. Thereafter I, Samrat and Robin went down stairs to arrange an auto rickshaw and came back in an auto rickshaw to the said house. Shashank and Vipin took Raghvender @ Raghu to the hospital in the said TSR. I and Samrat reached JPN Trauma Center, hospital which is situated adjacent to AIIMS in another TSR after locking the flat. Raghvender @ Raghu was got admitted in abovesaid hospital. On the next day, doctor had declared Raghvender @ Raghu as dead.
24. PW5 Samrat Hooda, another eye witness to the incident deposed as under:
On 15.11.2014, it was Saturday. I was relieved from my office at about 7:30 pm. I reached at S- 90, Shakarpur, Delhi at about 8 pm. While reaching at S-90, Shakarpur, Delhi, I noticed a missed call in my mobile phone which was of my maternal uncle I called back my maternal uncle and entered the Drawing Room of S-90, Shakarpur, Delhi. While I was talking to my uncle, Amit came to me and told that one Vipin had come to meet his brother Raghu. I went to the room of Raghu and greeted Vipin. The first room in the flat was ours i.e.. mine, Ct Surender and Ct. Robin and the second room was of Amit, Shashank and Raghu. Raghu told me that Ct. Robin had called him and told that he was also coming and to make arrangements for dinner, I asked Raghu to make the arrangements Judgment 16 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr as I had to leave for gym at 8:30 pm. I went to my room to change clothes and in the meantime, Ct. Robin also arrived there. I was changing my clothes. Ct. Robin asked Raghu and others about arrangements for dinner. All the four i.e. Raghu, Amit, Shashank and Vipin came towards our room and stood at the door.
Ct. Robin also started removing his uniform shirt. As I was changing my clothes, I had turned by back towards them. I heard that they were discussing whether to bring cooked food or to cook the same at the room. Suddenly I heard sound of gun shot and I turned and saw that one pistol fell down from the hands of Shashank and he was saying, "meri to life barbad ho gayi". The pistol belonged to Ct. Robin. I also saw that the bullet had hit Raghu and he was lying on the ground and he was bleeding from his head near his eye.
Ct. Robin and Amit went to take TSR. We all came back in a TSR. Ct Robin went away saying that he was going to PS to tell about the incident. Therefore Vipin and Shashank took Raghu to Trauma Center, AIIMS in the said TSR. I and Amit also went there in another TSR. Raghu was got admitted there.
25. PW9 Vipin is the third eye witness, he deposed as under:
On 15.11.2014 at about 6:30/7:00 pm, I had reached there. Raghu was not present at that time. I made call to him. After some time he came there and we started talking with each other in one room. We also started playing game on mobile phone. In the room adjacent to the room of Raghvender @ Raghu, four boys namely Shashank Harshit Singh, Amit, Samrat Hooda and Surender who was in Delhi Police, were also residing. On that day Surender was Judgment 17 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr not present there. After some time, one Robin Singh who was also in Delhi Police also came there in the said adjacent room. I became known to these persons since I used to go to Raghvender @ Raghu. Robin called Raghvender @ Raghu from his room and Raghu went to the said room. I remained in the room of Raghu. After about 5-7 minutes. I heard a loud sound. I went immediately to the other room where I saw that Raghu was lying on the floor at a little distance from the door. I also saw that Raghu was bleeding profusely from his head. I became shocked. Nobody was inside the other room ie. the room in front of which Raghu was lying. After some time. Samrat, Amit and Shashank came there. Immediately all the three took Raghu downstairs where a TSR was already standing. I had also helped in the same. I and Shashank took Raghu in the said TSR to JPN Trauma Center and got him admitted there. After some time, police also reached there. Police made inquiries from me and told them whatever I could recollect. Police also recorded my statement and I signed the same. Same is Ex.PW9/A bearing my signature at point A. In the hospital, Raghu was taken into the ICU and I remained there during the treatment. next day at about 9:00 am, Raghu was declared dead by the doctor....
26. PW1 Amit, PW5 Samrat and PW9 Vipin all of them deposed that besides them deceased Raghvender @ Raghu and accused Shashank and Robin were present at the spot.
27. PW1 Amit deposed that accused Shashank picked up the service pistol of accused Robin and suddenly a bullet got fired from the pistol and bullet hit Raghvender @ Raghu on his head Judgment 18 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr above the eye. PW5 Samrat also deposed that he heard sound of gun shot and when he turned, he saw that a pistol fell down from the hands of Shashank and Shashank said "meri to life barbad ho gayi". Deposition of Amit and Samrat is in consonance with their statements recorded under Section 164 Cr.P.C proved on record as Ex. PW1/A and Ex. PW5/B respectively.
28. Deposition of PW1 Amit and PW5 Samrat establishes that accused Shashank lifted the pistol of the accused Robin and bullet a got fired from it which hit deceased Raghvender @ Raghu on his head above the eye. PW1 Amit saw accused Shashank lifting the pistol and bullet getting fired and PW5 saw pistol falling down from the hands of accused Shashank and accused Shashank saying "meri to life barbad ho gayi".
29. Presence of accused Shashank and Robin at the spot has not been disputed by the defense. Rather all three eye witnesses deposed that after the incident accused Shashank and Vipin took Raghu to the Hospital. It is also not disputed that the pistol from which bullet was fired belonged to accused Robin. Both PW1 & 5 have not been cross- examined by the defense in respect of incident in question.
Judgment 19 of 27
SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr
30. Both PW1 & 5 have narrated the incident as it happened. Defence could not elicit anything from their cross-examination to discredit testimony of Amit and Samrat. There is no material contradiction, discrepancy or infirmity in their deposition. Their testimony is found to be cogent, consistent and credible in respect of the incident. Thus, in the light of deposition of PW1 Amit and PW5 Samrat it stands proved that accused Shashank lifted the pistol of the accused Robin and bullet got fired from it which hit deceased Raghvender @ Raghu on his head.
31. Motive: None of the prosecution witnesses have deposed that accused Shashank had any motive to fire bullet on deceased. PW1 categorically deposed that Shashank picked up the service pistol of accused Robin and suddenly pistol got fired (achanak goli chal gayi). Deposition of PW5 Samrat is also no different. PW5 also deposed that he saw pistol falling down from the hands of accused Shashank and accused Shashank saying "meri to life barbad ho gayi".
32. Previous and subsequent conduct of accused Shashank also shows that he had no intention kill accused Raghu. It is in evidence of eye Judgment 20 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr witnesses that prior to incident all friends were discussing about dinner and after the incident, accused Shashank along with Vipin (PW9) immediately took Raghu to the Hospital. Testimony of eye witnesses and PW34 Mohd Sajid shows that deceased and accused Shashank were friends and were enjoying good relations. There was no enmity or ill-will which could be the reason of firing bullet.
33. Evidence led by prosecution in the present case, points out that it is the case of accidental firing and accused Shashank had no motive to kill deceased Raghu.
34. In Balwant Singh Vs State of Punjab & Another, 1994 Suppl (2) SCC 67 , Hon'ble Apex Court held as under:
8. Then the question would be whether an offence under Section 304-A IPC is made out?
The provisions of this section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Sections 299 and 300 IPC and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is Judgment 21 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr primarily an overhasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case.
35. In a recent judgment titled as Arvind Kumar v. State (NCT of Delhi) , (2023) 8 SCC 208 :
2023 SCC OnLine SC 845 at page 216, Hon'ble Apex Court has held:
20. PW 5 and PW 13 have attributed the aforesaid statements mentioned in para 17 above to the appellant and PW 12 Shashi Bala which were immediately made after the incident of firing. The alleged statements are certainly connected with the fact in issue, namely, the alleged act of the appellant of killing the deceased. Therefore, assuming that the statements attributed to the appellant and PW 12 were in fact made, the conduct of the appellant of making the said statement becomes relevant in view of Section 6. Section 5 of the Evidence Act provides that evidence may be given in a proceeding of the existence or non-existence of every fact in issue and of such other facts which are declared to be relevant under the provisions of Chapter II of the Evidence Act, 1872. Section 6 is applicable to facts which are not in issue.
Such facts become relevant only when the same satisfy the tests laid down in Section 6. Hence, the statement of an accused to which Section 6 is applicable cannot be treated as a confession of guilt. The statement becomes relevant which can be read in evidence as it shows the conduct of the appellant immediately after the incident. In any case, in the facts of the case, we have held that the version of the two witnesses who have deposed about the appellant making such Judgment 22 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr statement does not inspire confidence.
21. The prosecution has failed to prove that the appellant had either any intention of causing the death of the deceased or the intention of causing such bodily injury to the deceased which was likely to cause his death. Assuming that when the appellant approached the deceased to stop him from using the telephone, he was aware that the change lever was not in a safety position, it is not possible to attribute knowledge to him that by his failure to keep SAF in the safety position, he was likely to cause the death of the deceased. The knowledge of the possibility of the deceased who was himself a policeman pulling SAF carbine cannot be attributed to the appellant. In fact, the appellant could not have imagined that the deceased would do anything like this. Thus, by no stretch of the imagination, it is a case of culpable homicide as defined under Section 299IPC as the existence of none of the three ingredients incorporated therein was proved by the prosecution.
22. However, there is a failure on the part of the appellant who was holding a sophisticated automatic weapon to ensure that the change lever was always kept in a safety position. This was the minimum care that he was expected to take while he approached the deceased. Thus, there is gross negligence on the part of the appellant which led to a loss of human life. Due to his rash and negligent act, the deceased lost his life. Therefore, the appellant is guilty of a lesser offence punishable under Section 304- AIPC for which the maximum sentence is imprisonment for two years. The appellant has undergone a sentence of more than eight years.
36. Facts in the present case are quite similar. Accused Shashank had neither motive nor intention to murder deceased. However, conduct of Judgment 23 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Shashank was negligent. In any case, while having pistol in his hand, he should have taken the precautions as he was holding a dangerous weapon and he was supposed to take necessary care in its use.
37. Accused Shashank at first instance without any authorization picked the pistol of the accused Robin and then he failed to take proper care as a result of which bullet got fired from the bullet which resulted into death of deceased Raghuvendra @ Raghu, hence, accused Shashank is guilty of causing death of Raghu by doing a rash and negligent act that is an offence punishable under Section 304 A IPC.
38. Role of accused Robin: Accused Robin is charged for the offence punishable under Section 336 IPC. Section 336 IPC reads as under:
S.336 IPC: Act endangering life or personal safety of others.--Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
39. PW Ct. Surender who was residing in the same premises deposed that he took premises in question on rent with Samrat Hooda and accused Judgment 24 of 27 SC No: 1556/16 State Vs. Shashank Harshit Singh & Anr Robin also used to share rent & stay in room. He deposed that in another room of the premises deceased Raghu, accused Shashank and Amit were residing as tenants.
40. PW5 Samrat Hooda deposed that he shifted to place of occurrence situated at S-90, Shakarpur, Delhi and there Shashank, Amit, Raghu alongwith Ct. Surender were residing. Ct. Surender told him that Robin also used to come to the said accommodation intermittently.
41. Testimony of PWs Surender and Samrat Hooda establishes that accused Robin was regular visitor in the premises in question and he used to stay there as well. PW Surender rather confirmed that accused Robin used to reside there and used to even share the rent with him.
42. Now, coming back to incident. PW1 Amit deposed that Robin had come to the flat. After sometime, Samrat had also come Robin who was constable in Delhi Police removed his service pistol and placed it on mattress on the floor of the room in which Shashank was there and Robin started changing his uniform.
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43. PW1 Amit further deposed that he, Vipin and Raghvender @ Raghu went to the said room and stood at the door that room and when they were talking to one another and in the mean time, accused Shashank picked up the service pistol of accused Robin and suddenly pistol got fired.
44. PW5 Samrat in this regard deposed that after coming to flat, accused Robin started removing his uniform shirt and PW5 was also changing his clothes, suddenly PW5 heard sound of gun shot and he turned and saw that a pistol of accused Robin fell down from the hands of Shashank and he was saying, "meri to life barbad ho gayi" . PW5 saw that bullet had hit Raghu and he was lying on the ground.
45. Third eye witness to the incident PW9 Vipin did not throw much light as to when the bullet got fired but testimony of PW1 & 5 establishes that when accused Robin was changing his uniform, accused Shashank picked up his pistol and the bullet got fired from it. It is not the case that accused Robin had kept his service pistol unattended or not at a safe place rather facts shows that he was changing his uniform and at that time the pistol was picked by accused Shashank and bullet got fired.
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46. To constitute an offence punishable under Section 336 IPC there must be a rash or negligent act to endanger a human life or the personal safety of others, but facts of the case indicates that 'act' of firing the bullet in question is not the direct and proximate cause of the 'omission' of keeping pistol on mattress by accused Robin as he was changing clothes and at the same time pistol was picked by Shashank. Nothing is attributed to accused Robin which signifies rashness or negligence on his part. Thus, charge for offence punishable under Section 336 IPC does not sustain against accused Robin.
Conclusion
47. In the light of above discussions, accused Shashank Harshit Singh is convicted for the offence punishable under Section 304-A IPC and accused Robin stands acquitted for the offence punishable U/s 336 IPC.
Matter be listed for hearing submissions on the quantum of sentence qua convict Shashank Harshit Singh.
Announced in the open court on 6 th December, 2023 Digitally signed by GAUTAM GAUTAM MANAN MANAN Date:
2023.12.06 13:19:25 +0530 GAUTAM MANAN Addl. Sessions Judge-05 East, Karkardooma, Delhi Judgment 27 of 27