Delhi District Court
State vs . 1. Jitender @ Kukki on 25 January, 2010
1 FIR No.: 137/2005
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03, NORTH, DELHI.
FIR No.: 137/2005
PS: Timarpur
U/s: 307/34 I.P.C
&
25/27 of Arms Act
S.C. No.: 70/05
In the matter of:
State Vs. 1. Jitender @ Kukki
S/o Sh. Timraj
R/o Gali No.2, Village Jagatpur,
Timarpur, Delhi.
2. Rajesh Kumar
S/o Sh. Timraj
R/o Gali No.2, Village Jagatpur,
Timarpur, Delhi.
3. Ram Kumar @ Babloo
S/o Sh. Timraj
R/o Gali No.2, Village Jagatpur,
Timarpur, Delhi.
Date of receiving in Sessions Court : 29.07.2005
Arguments Heard : 21.12.2009, 22.12.2009
Date of Judgement : 25.1.2010
JUDGEMENT
2 FIR No.: 137/2005
Case Of Prosecution:
1. On 21.3.2005 on receipt of DD No.18A regarding quarrel, SI Mohan Lal alongwith Ct. Rajender reached at Gali No.3 village Jagatpur, Timarpur, Delhi where they came to know that quarrel had taken place at the house of Jitender with complainant Maharaj Singh. IO alongwith Ct. Rajender reached at the house of accused Jitender where he found blood spots on the floor, cot, door, chair etc. He met Smt. Seema sister of the complainant Maharaj Singh at the spot who gave her statement. After her statement, IO came to know that injured had been taken to Parmanand hospital. He left Ct. Rajender at the spot and reached at Parmanand hospital where he obtained the MLC of injured Maharaj Singh who was declared unfit for statement by the doctor. On the statement of the Smt. Seema and MLC, case u/s 307/34 IPC 3 FIR No.: 137/2005 was registered and the investigation was carried out by the IO. During investigation statement of witnesses was recorded. On 25.3.2005 further investigation was handed over to SI Saket Kumar who during investigation arrested the accused persons. On the pointing out of accused Jitender, the weapon of offence i.e. upper portion of the double barrel gun was seized, on the pointing out of accused Rajesh, lower portion of the double barrel gun was seized and on the pointing out of accused Ram Kumar, a mobile phone of the injured was seized. Thereafter further investigation was transferred to SI Rajesh Kumar who sent the case property to the FSL for expert opinion. The result on the MLC of injured Maharaj Singh was obtained and after completion of the investigation, challan u/s 307/34 IPC read with section 25/27 of Arms Act was filed against the accused persons. 4 FIR No.: 137/2005
2. Since the offence u/s 307 IPC is exclusively triable by the court of Sessions, therefore after supply of the documents, Ld. M.M. committed the case to the court of Sessions.
Charge Against Accused:
3. Prima facie case u/s 307/326/34 IPC was made out against all the accused persons and case u/s 25/27 Arms Act was also made out against accused Jitender @ Kukki. Accordingly, charge was framed against the accused persons to which they pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 20 witnesses in all.
5. PW1 is HC Naresh who registered the DD No.18A and proved the same as Ex. PW1/A. 5 FIR No.: 137/2005
6. PW2 is Dr. Alok Kumar Jain who examined the injured Maharaj Singh and proved his MLC as Ex. PW2/A.
7. PW3 is injured Maharaj Singh who has deposed about the incident and has fully supported the case of the prosecution.
8. PW4 is Dr.Vipin Rastogi who examined the patient Maharaj Singh and proved his report on the MLC Ex. PW2/A.
9. PW5 HC Rama Nand is a duty officer who registered the case and proved the FIR as Ex. PW5/A.
10. PW6 Sh.Satender @ Chand is a public witness who did not support the case of the prosecution.
11. PW7 is Ct. Shivender Singh who took the rukka to the Police Station and after getting the case registered took the rukka back and handed over the same to the IO.
12. PW8 is Ct. Manoj Kumar who obtained the sealed 6 FIR No.: 137/2005 parcels from the concerned doctor of Sant Parmanand hospital and handed over the same to the IO.
13. PW9 HC Yashpal Singh is MHC(M) of Police Station Timarpur who deposited the case property in the malkhana and also sent the same to FSL office. He proved all the entries as Ex. PW9/A to Ex. PW9/E.
14. PW10 is SI Sube Singh from the crime team who inspected the place of occurrence and proved his report as Ex. PW10/A.
15. PW11 is Ct. Om Prakash who took the seal parcels to FSL office, Rohini.
16. PW12 Smt. Seema, sister of the complainant who who deposed about the incident and has fully supported the case of the prosecution.
17. PW13 Sh.Sarvesh Kumar is a photographer who 7 FIR No.: 137/2005 took the photographs of the blood spots and the scene of crime and proved the photographs as Ex. PW13/1 to 8 and negatives thereof as Ex. PW13/9 to 16.
18. PW14 is Ct. Anil who took the sealed parcels from the MHC(M) and deposited the same in the FSL office.
19. PW15 SI Saket Kumar is IO of the case who has duly proved all the memos regarding the arrest of the accused and seizure of the case property.
20. PW16 is Sh.Vinod Kumar one more public witness who has duly supported the case of the prosecution.
21. PW17 is Ct. Rajender Singh who accompanied IO SI Mohan Lal to the place of occurrence.
22. PW18 is SI Rajneesh Sharma who stated that further investigation was handed over to him and he sent the exhibits to the FSL office and obtained the result on the MLC. 8 FIR No.: 137/2005
23. PW19 SI Mohan Lal is IO of the case who has duly proved all the memos as well as the case property.
24. PW20 Sh. Sanjeev Kumar is a public witness who did not support the case of the prosecution.
25. Statement of accused u/s 313 Cr.PC. was recorded. Accused Rajesh Kumar stated that he was not present at his residence on 21.3.2005. On that day he was present at his sister's house at village Nevla Maharajpur, Faridabad and he has been falsely implicated in the present case. Accused Jitender @ Kukki stated that he has no dispute regarding the agriculture land with Maharaj Singh. He was not present at his residence on 21.3.2005 and later on he came to know that Maharaj Singh alongwith other persons attacked on his house where his mother and aunt were there in the said house. He stated that no quarrel had taken place between him, his 9 FIR No.: 137/2005 brother and his cousin brother Maharaj Singh and he has been falsely implicated in the present case. Accused Ram Kumar @ Babloo also stated that he was not present at his residence on 21.3.2005. He is not aware whether any case is pending between his brother Jitender Singh and Maharaj Singh and he was not aware whether it was fixed for 21.3.2005. All the accused persons chose to lead defence evidence and in their defence they examined five witnesses in all.
26. DW1is Smt. Krishna W/o late Sh. Ramesh who stated that on 21.3.2005 she came at her parental house at Jagatpur to meet her family members. All the accused persons were not present at their residence and had gone to the places as stated by them in their statement of accused. Thereafter Maharaj Singh came there and started shouting 10 FIR No.: 137/2005 and asking about Jitender and he was also having a gun in his hand. People of locality gathered there and when they tried to intervene, the bullet was fired in the scuffle.
27. DW2 is Smt. Krishna W/o Sh. Mahender Singh who stated that on 21.3.2005 she was coming from the fields and when she was near at her residence, she saw Maharaj Singh running with a gun. She left the grass at her home and asked from the villagers what happened with Maharaj Singh. She reached at the house of Jitender where she saw Maharaj Singh in injured condition and the villagers were trying to take him to the hospital. The villagers stated her that during the scuffle between Maharaj Singh and Mahender, the gun was triggered and Maharaj Singh sustained injury.
28. DW3 is Smt. Mahendri who stated that her elder son Jitender was out of station on 21.3.2005. Her younger son 11 FIR No.: 137/2005 Rajesh was also out of station and her son Ram Kumar @ Babloo had gone to school for his examination. Maharaj Singh came at her house and used abusive language with her. She was present alongwith her Nanad Krishna. A scuffle took place and some people tried to take gun from the hands of Maharaj Singh and during scuffle, the trigger of the gun was pushed and there was a fire. Maharaj Singh sustained injuries during that scuffle.
29. DW4 is Sh. Bhushan Chaprana who stated that accused Rajesh reached at his house on 20.3.2005 and he stayed during the night time at his house and he left his house on 22.3.2005.
30. DW5 is Sh. Ved Ram who stated that on 21.3.2005 there was a Havan at his house where accused Jitender @ Kukki came and stayed at his house till 23.3.2005. 12 FIR No.: 137/2005
31. I have heard ld. counsel for the accused and ld. APP for the state and have carefully perused the record.
32. Section 307 IPC reads as under: Section 307 of IPC. Attempt to murder "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.
33. PW3 Maharaj Singh is injured in the present case. He stated that his father Dharam Singh and Timraj are the real brothers. Jitender @ Kukku, Sanjeev, Rajesh, Satender @ Chand and Ram Kumar are the sons of his uncle Timraj. 13 FIR No.: 137/2005 He came to know that accused Jitender had got transferred his land in his name after enticing his father namely Dharam Singh and he has also filed an application for mutation in the office of concerned Tehsildar. Accused Jitender had also got transferred the land of his brother in his name from his father. On 21.3.2005 he alongwith Satender had come to make enquiry in the office of Tehsildar at Tis Hazari pertaining to aforesaid land and there they came to know that accused Jitender had initiated proceedings for mutation in respect of the said land. Thereafter they came back to Jagatpur and at about 3.00 p.m. Satender made a telephone call and told him that Sanjeev had gone to talk about the land at the house of accused Jitender and there accused Jitender had picked up quarrel with him in the presence of accused Rajesh and Ram Kumar. His sister Smt. Seema Khari had also come to his 14 FIR No.: 137/2005 house on that day to meet them. At about 3.20 p.m. he along with Seema, Satender and Sanjeev had gone to the house of accused Jitender to talk about the aforesaid land. At that time besides accused Jitender, Rajesh and Ram Kumar were also present there and they asked them as to why they had picked up quarrel. On this they entered into argument with them and thereafter accused Jitender, Ram Kumar and Rajesh grappled with him. Accused Jitender caught hold of him by his collar and accused Ram Kumar caught hold of him by right hand and also twisted his hand towards back side and accused Rajesh started slapping him. In the meantime Satender and Sanjeev intervened to rescue him from them and on this accused Rajesh became violent and stated that so long as Maharaj Singh is alive the matter would not be sorted out. Thereafter accused Jitender left his collar and 15 FIR No.: 137/2005 rushed to bring the gun and he brought a double barrel gun and stated that he will finish him right now. Accused Jitender fired two shots from the gun aiming at his chest and as a result of which he sustained bullet injury and fell down. Mobile phone which was given to him by Chaman son of his bua had also fallen down. He became unconscious and regained his consciousness in the Parmanand hospital. He also produced a copy of the application for transfer of land as Ex. PW3/A, copy of NOC as Ex. PW3/B, copy of GPA as Ex. PW3/C to the IO which were taken into possession by the IO vide seizure memo Ex. PW3/D. This witness has been cross examined by ld. counsel for the accused at length but nothing material has come out of his cross examination. Even in his cross examination, he has stated that at the time of incident Sanjeev, Chand and Seema were present. He denied the 16 FIR No.: 137/2005 suggestion that he had gone to the house of Jitender to quarrel with him. He has given the documents pertaining to the land in dispute to the IO but he does not remember the date of handing over the documents to the IO but for the same no adverse inference can be drawn. No presumption can be raised that it is a afterthought story or PW3 has deposed falsely. PW3 further stated that he had not made any complaint to the police when he came to know that accused Jitender had got transferred his land in his name. Initially he considered it necessary to make enquiry first from Revenue Department. He had collected the copy of the documents from Patwari by which the land was got transferred by accused Jitender in his name and handed over the same to the IO. Therefore, the real motive of crime or the dispute between the parties also stands proved that accused Jitender 17 FIR No.: 137/2005 got transferred the land of PW3 in his name vide these documents Ex.PW3/A, Ex.PW3/B and Ex.PW3/C. No suggestion has been given to PW3 that these documents are forged documents or does not pertain to land of complainant. PW3 further stated that no payment was made by the accused to his father in this regard and he did not visit the office of Registrar concerned in this regard. The witness stated that Shyam was the witness of GPA and he also handed over him a affidavit to this effect that his signatures were obtained fraudulently on the GPA. He has further stated that after this incident a civil suit was filed by his father against accused Jitender and others. During cross examination he stated that he did not meet accused Jitender in the office of Tehsildar. PW 3 has not been able to tell as to who was the Tehsildar on 21.2.2005. But merely because he 18 FIR No.: 137/2005 has not been able to tell the name of the Patwari or Tehsildar is no ground to make a presumption that he is deposing falsely in this regard or he did not visit the office of Tehsildar. Even for the sake of arguments, we presume that PW3 did not visit the office of the Tehsildar and Patwari and he is deposing falsely in this regard but it does not make any difference to the case of the prosecution u/s 307 IPC as the case of the prosecution is that all the accused persons in furtherance of their common intention caused bullet injury on the person of Maharaj Singh. PW3 Maharaj Singh had produced the documents relating to the transfer of the land in favour of accused Jitender which clearly proved the motive of the case or the reason for quarrel between the parties. For for the sake of repetition if we presume that PW3 had not visited the office of the Tehsildar but that does not make any 19 FIR No.: 137/2005 difference to the case of the prosecution. PW3 has admitted that the double barrel gun was initially issued in the name of his grand father Shalu Singh and subsequently it was transferred in the name of Timraj, father of the accused Jitender. A suggestion has been given by the counsel for the accused that after the death of Timraj, the said gun and license came into the possession of Dharam Singh @ Dharmi which has been denied by the PW3. Counsel for the accused argued that even no handing over memo was made by the Patwari regarding the handing over of the documents to PW3 but it is not the case that PW3 had made any application for obtaining the documents. He has merely stated that he got the photocopy of the documents of the original from the Patwari. Whether PW 3 was aware about the making of any memo in such a situation or whether such is a procedure 20 FIR No.: 137/2005 prescribed is doubtful. PW3 seems to be a truthful and natural witness as he submits that he does not remember the number of mobile phone which was given to him by son of his Bua. He stated that he was present his house at 3.10 O'clock when Satender made telephone call to him. This fact was again stated by him in his cross examination. Though there is slight discrepancies in the statement of PW3. He has stated that Chand was already present at his house before his arrival there. Whereas in the chief he has stated that Chand and Satender are the same person and he had gone to the office of Tehsildar alongwith Satender only. But these minor discrepancies in the statement of PW3 does not go to the root of the case. One more suggestion has been given to PW3 that accused Rajesh came to his residence and they started beating him and thereafter they directed him to bring Jitender 21 FIR No.: 137/2005 and Jitender was in some other village on the day of occurrence and he was not present at the relevant date, time and place. It may be mentioned that all the accused persons in their statement have stated that they were not present at the spot on the relevant date, time and place and were present at the places as stated by them in their statement. In support of their contention they have also examined 5 defence witnesses herein. During cross examination accused had given him a suggestion that accused Rajesh was present at the spot and he was told by PW3 to bring Jitneder thus the presence of the accused Rajesh had been admitted by the accused themselves wherein in the statement of accused Rajesh has denied that he was present at the spot. During cross of PW3 a suggestion has also been given to him that at the time of quarrel accused Rajesh and lot of villagers 22 FIR No.: 137/2005 assembled at the spot and the gun was with PW3 and during that quarrel accidentally shot was fired from the said gun and PW3 sustained gun shot injury. Thus the fact that PW3 sustained gun shot injury has been admitted by the accused during the cross of PW3 i.e. injured who received gun shot injury. The only plea taken by the accused is that gun was already in the hands of PW3 but accidentally it was fired and PW3 received injury. PW3 further stated that his statement was recorded twice by the police and this fact has also been corroborated by PW18 SI Rajneesh Sharma who stated that he again recorded supplementary statement of PW3 when he handed over the documents to him.
34. PW6 Satender @ Chand has not supported the prosecution story but this witness stated that incident happened about one year back. He reached at the house of 23 FIR No.: 137/2005 Jitender and took Maharaj Singh to Sant Parmanand hospital and got him admitted there as Maharaj Singh had sustained injuries at that time. He does not know anything about this case. It is a well settled law that as much as the evidence of a witness wherein he has supported the case of the prosecution is admissible in evidence. Reliance is placed on 1971 Crl. LJ SC titled as Ichuji vs. State of MP. Though this witness is completely hostile regarding incident but he admitted the fact that Maharaj Singh was lying in the injured condition at the house of Jitender from where he took him to Sant Parmanand hospital. PW6 has further admitted the fact in his cross examination by ld. APP for the state that he handed over his shirt stained with blood of Maharaj Singh to the IO and the seizure memos Ex. PW6/PX2, Ex. PW6/PX3 and PW6/PX4 bear his signatures. Though during his cross 24 FIR No.: 137/2005 examination by accused this witness stated what was written in those papers he does not know as he did not read the same but at the same time he knew that it was seizure memo and the IO prepared the same. He has further admitted this fact in his chief examination that he picked up Maharaj Singh from the house of Jitender in injured condition. Thus Maharaj Singh was at the house of Jitender in an injured condition when PW6 removed him to the hospital and this corroborates the case of the prosecution as well as the testimony of PW3 that he went to the house of accused Jitender and sustained injured there at the house of Jitneder.
35. PW12 is one more public witness Seema Khari who accompanied PW3, PW6 alongwith PW Sanjeev to the house of Jitender. She has stated that on that day there was date of the case in the court and his brother had gone to attend the 25 FIR No.: 137/2005 date. Accused Jitender had quarrel with her other cousin brother Chand and she told her brother Maharaj Singh through mobile about the quarrel. After attending the date her brother came to his house and thereafter her brother Maharaj Singh alongwith his cousins Chand and Sanjeev went to the house of accused Jiternder. Accused Rajesh and Babloo were also present and they started grappling and quarreling with her brother Maharaj Singh, Chand and Sanjeev. Thereafter accused Jitender went in a room of his house and took out a double barrel gun and pointed towards her bother Maharaj Singh and fired two bullet shots on the person of her brother. The bullets hit on his chest and shoulder. She took her brother in her arms and her brother fell down on a cot. Her wearing clothes were smeared with his blood. Her cousin brother Chand and Sanjeev had removed her injured brother 26 FIR No.: 137/2005 Maharaj Singh to the hospital. The police had enquired her about the occurrence and she made statement Ex. PW12/A before the police. Police also inspected the place of incident and prepared site plan. She handed over her wearing salwar and shirt (Kamij) which were smeared with the blood of her brother to the police and police had taken the same into possession vide memo Ex. PW6/PX5. She further identified the double barrel gun. Nothing material has come out of the cross examination of PW12 also and she seems to be a natural and trustworthy witness. This witness has stated she had come to the house of her brother about 1015 days prior to the incident where her brother had not told her when he visited Khairpur about the dispute over the land. Her parents were also living with Maharaj Singh. She has denied that she was pregnant at that time and she used to reside with her 27 FIR No.: 137/2005 parents in the house of another brother Vijender. She has also denied the suggestion that she was not able to walk and to do work because of her advance stage of pregnancy and not aware about the case. During their defence evidence, the accused had tried to prove the fact that PW12 is a planted witness by the prosecution and she was not present at the spot at the time of incident which they have failed to do. PW12 stated that she had not handed over to the police any of her documents relating to her pregnancy when she herself denied that she was not in advance stage of pregnancy then there was no question of handing over of any documents relating to her pregnancy to the police. She has further stated that she does not know whether her brother had gone to the court of Executive Magistrate or Metropolitan Magistrate and only her bhabhi told her about the fact that Maharaj Singh had 28 FIR No.: 137/2005 gone to the court in relation to land dispute. Being a house wife PW12 and her Bhabhi were not aware as to whether it was an Executive Magistrate or Metropolitan Magistrate court but same will not make any difference. Suffice it is for PW12 when she deposed that her brother had a date in the court. Moreover, she herself has stated that her bhabhi told this fact to her. PW12 also denied the suggestion that she had seen the gun of her grand father kept in the Baithak. During cross of PW3 no suggestion has been given to him that at the time of partition he kept tractor only himself and entire land was used to be irrigated by this tractor which was a bone of contention between both the parties but at the time of cross of PW12 entire new suggestion/defence has been taken by the accused persons and they have given suggestion to PW12 that at the time of partition a tractor was kept by Maharaj 29 FIR No.: 137/2005 Singh which was used to irrigate the whole land and it was a bone of contention between the parties. During cross examination of PW3 injured Maharaj Singh, a suggestion has been given to him that Rajesh came to the house of PW3 and they all started beating Rajesh and villagers collected there whereas accused Jitender was not present on that day at the time of incident but an entirely different suggestion has been given to PW12 that Maharaj Singh pointed out the gun towards Jitneder to kill him and Jitender ran away from there and went to his house. Thereafter Sanjeev, Chand and Maharaj Singh ran after accused Jitender and went inside his house and when inside the house accused Jitender was not found by Sanjeev, Chand and Maharaj Singh then they gave beating to Rajesh and Ram Kumar who were present in the house. Thus during cross examination of PW12 accused 30 FIR No.: 137/2005 Rajesh, Ram Kumar and Jitender have admitted their presence at the spot at the time of incident on the relevant date. Furthermore, a suggestion has been given by the accused to PW12 that incident of firing took place at the house of accused Jitender only since it has been suggested to her "It is correct that in the house where the incident had happened of firing wives of Rajesh and Jitender and my chachi was living but I had not seen them except my Chachi at the time of incident" . Again suggestion has been given to PW12 that Maharaj Singh had tried to fire upon the accused Rajesh and in that scuffle the bullet was fired accidentally and hit Maharaj Singh. Thus in the crossexamination of the witness PW12, the accused have admitted that incident took place at the house of Jitender and in that incident firing took place and that firing took place from the double barrel gun. 31 FIR No.: 137/2005 Now what remains to be seen is that as to whether the gun was fired by accused Jitender alongwith other coaccused persons at Maharaj Singh or it was fired accidentally. PW12 in the suggestion has denied that accused Jitender received injury at the hands of Maharaj Singh and Sanjeev and Chand.
36. PW13 Sarvesh Kumar is a photographer who took the photographs of the site as well as blood spots and the scene of crime. It shows that blood was there on the cot, floor and on the wall etc. Thus the photographer also stated that he took the photographs from the house of Jitender. Nothing material has come of the cross of PW13. From testimony of PW13, it also stands proved that the incident took place at the house of accused Jitender and bullet shots were fired at Maharaj Singh who after receiving the bullet injury became unconscious.
32 FIR No.: 137/2005
37. In this case PW20 Sanjeev Kumar is one more public witness. He has stated that he does not remember the exact date, month and the year but the matter is of about 4 years back. He was taking his lunch in his house at about 3.30 p.m. He heard noise and he went to the house of Jitender. His cousin brother was lying in a pool of blood in injured condition in front of the house of accused Jitender. He alongwith his brother Chand lifted Maharaj Singh and put him in a car of Pramod and got him admitted in Parmanand hospital. He made no statement before the police. It may be mentioned that part of the examination wherein the witness supports the case of the prosecution can very well be looked into by the court. This witness has also admitted in his cross examination that Maharaj Singh was lying in injured condition in front of house of accused Jitender. In his cross this witness 33 FIR No.: 137/2005 denied having made any statement to the police but he has admitted this fact that all the accused persons are real brothers and the dispute of their agriculture land has been solved after this case. In any way this witness has also admitted that there was a dispute of their agriculture land with accused which has been solved after this case. PW3 and PW12 they have stated that accused Rajesh, Ram Kumar and Jitender had a dispute about the agriculture land with their cousin brothers Sanjeev and Chand. Both PW6 Satender @ Chand and PW20 Sanjeev though have admitted that injured Maharaj Singh was lying in front of the house of accused Jitender and they got him admitted in the hospital but they have denied the rest of the case of the prosecution showing their ignorance to the whole incident. But PW20 in his cross examination by Ld. APP for the state admitted that 34 FIR No.: 137/2005 the dispute of their agriculture land has been solved after this case. Ld.APP for the state submitted that since PW6 Satender and PW20 Sanjeev both have compromised their case so this can be main reason why they are turning hostile. Submission of ld. APP for the state bears force and cannot be ignored. Ld. counsel for the accused strongly argued that PW3 and PW12 are the interested witness being the injured and the sister of the injured and further PW16 Vinod Kumar is also brother in law of the injured and therefore they being the relatives are interested witnesses and therefore their testimony should not be considered by the court. No doubt PW12 and PW16 are the sister and brother in law of the injured. But in this case the testimony of PW 3 is sufficient which inspire confidence and nothing material has come out of the cross examination of PW12 also. Prosecution has 35 FIR No.: 137/2005 been able to prove the presence of PW12 over all at the spot. Even the clothes of PW12 were seized by the IO from the spot and from the FSL report, the blood was found on the clothes of PW12 and PW6 and so far as the blood sample is concerned then same was putrefied and therefore no opinion can be given but from the blood found on the clothes of PW6 and PW12 it is clear that the blood is only of B group. It is not the defence of the accused that PW12 also suffered from injury due to which her clothes were smeared with blood or PW6 intentionally smeared his clothes with the blood.
38. In Vinay Kumar Rai and Another Vs. State of Bihar 2008 V AD (Cr.) (SC) 392 it has been held by Hon'ble Supreme Court that "Para no. 6: Merely because the eye witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being 36 FIR No.: 137/2005 relative of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. Para no.13: The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house, it is upragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question 37 FIR No.: 137/2005 then there is justification for making adverse comments against nonexamination of such person as prosecution witness. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it though the neighbourhood may be replete with other residents also''.
39. In the present case both the parties accused as well as the complainant are the real relatives being cousins and therefore, the witnesses who can prove the incident or the motive in the present can only be relatives of the parties. It is further a common knowledge that nowadays in cities like Delhi nobody wants to get himself involved in any police case or criminal case for fear of police or the court rounds. Moreover, at the time of incident PW3, PW12, PW6 and PW20 were present at the spot as per the prosecution story. 38 FIR No.: 137/2005 Both PW3 and PW12 have duly supported the case of the prosecution. So far as the PW6 and PW20 are concerned, then they have denied having seen the incident but they have admitted the fact that Maharaj Singh was lying in injured condition at the house of Jitender thus they also corroborate the case of the prosecution that on that day the incident took place at the house of accused Jitender and Maharaj Singh sustained injury there only and from there he was taken to the hospital. But now only question that remains to be seen as to whether the bullet shots were fired by the accused from the gun or not. According to PW3, accused Jitender rushed to bring gun and brought double barrel gun and stated that he will finish him. Thereafter he fired two bullet shots from the gun aiming Maharaj Singh at his chest with the result Maharaj Singh sustained bullet injury and fell down. The MLC of 39 FIR No.: 137/2005 Maharaj Singh proved on record as Ex.PW2/A also corroborates the testimony of PW3 wherein it has been observed that there is an injury over left arm with skin and muscle loss injury and he received injury on left side of chest which is also skin and muscle loss injury. These injuries has been duly proved by prosecution as Ex.PW2/A. The nature of the injury i.e. dangerous and the bullet injury has also been duly proved by the prosecution. From the MLC Ex. PW2/A it stands proved that Maharaj Singh received bullet injury over left arm with skin and muscle loss injury as well as injury on left side of chest skin and muscle loss injury. The testimony of PW2 remains unchallenged and unshattered in this case. Similarly the testimony of PW4 also remains unchallenged and unshattered regarding opinion on the MLC Ex. PW2/A.
40. Counsel for the accused again and again argued in 40 FIR No.: 137/2005 the defence of the accused that Maharaj Singh received injury from the gun which accidentally got fired. Even if we presume for arguments sake that there was a scuffle between accused persons and Maharaj Singh and in this scuffle the gun accidentally fired but in the MLC Ex.PW2/A it is clearly mentioned that there was firing of two bullets. Gun can be accidentally fired only once and not twice. Moreover from the blood on the cot, wall and door it does not seem that the bullet shots were fired with such a near distance that gun was in the right hand of the injured and he fired on his left hand. The ballistic report proved on record as Ex. PW18/C states that double barrel 12 bore loading gun is in working order and test fire conducted successfully. He further proved the broken wooden butt and double barrel breach loading gun 12 bore and that butt are the part of the same double barrel gun and 41 FIR No.: 137/2005 the remnants of plastic wad can be parts of piston wad/wads of 12 bore cartridge and are firearm/ammunition as defined in the Arms Act. The sanction for prosecution for accused Jitender u/s 25 of Arms Act has been duly proved as PW18/D. Moreover, regarding the accidental fire the accused had taken different version. During the cross of PW3 they have taken stand that accused Rajesh came to house of PW3 and had quarrel with him and after instigating him to call Jitender who was not present at the spot and during that quarrel some villagers assembled at the spot and during that scuffle gun shot was fired accidentally. On the other hand, during cross examination of PW12 accused have taken plea that accused Jitender ran away from the spot and Maharaj Singh alongwith Sanjeev and Chand ran after him and he went inside his house and when he was not found in side the house they 42 FIR No.: 137/2005 started giving beating to Rajesh and Ram Kumar and thereafter Maharaj Singh tried to fire upon accused Rajesh and in that scuffle the bullet shot was fired accidentally and hit Maharaj Singh. During cross examination of PW3 accused had taken plea that incident took place at the house of Maharaj Singh only and gun shot was fired accidentally whereas in cross examination of PW12 an entire different stand has been taken by the accused and they have taken the plea that accused Jitender ran from the spot and thereafter accused Rajesh and Ram Kumar was beaten by Maharaj Singh, Sanjeev and Chand and Maharaj Singh had tried to fire upon accused Rajesh and in that scuffle the bullet was fired accidentally and hit Maharaj Singh. In criminal case the burden to prove the case beyond reasonable doubt is upon the prosecution. However it is the accused who have 43 FIR No.: 137/2005 taken plea that bullet shots were fired accidentally and therefore the burden to prove the same was upon the accused but they have failed to discharge that burden.
41. DW1 Krishna is the bua of the accused persons she has stated the all the accused were not present at the house at that time and Maharaj Singh came to their house and he used abusive language against her sister in law Mahendari. He was shouting and asking about the accused Jitender and he was having a gun in his hand and people of the locality gathered there and they tried to intervene in the matter and the bullet was fired in that scuffle. This is an entirely new stand taken by the accused in their defence. Since prior this during cross examination of PW3 and PW12 they have themselves admitted the present of accused Jitender, Ram Kumar and Rajesh at the spot but now during their defence 44 FIR No.: 137/2005 they have taken plea that they were not present at the spot and gun was fired accidentally and therefore, such contradictory plea taken by the accused persons strengthen the case of the prosecution. DW2 Krishna also deposed that accused were not present at the spot. She has stated that she did not make any complaint to the higher authority regarding the fact that accused has been falsely implicated in this case. DW3 has deposed that she had not made any complaint to the higher police officers or to any higher authority or before any court regarding false implication of her sons by Maharaj Singh. DW4 and DW5 have tried to prove that accused Rajesh and Jitender were not present at the spot at the time of incident and were present with them at their houses as stated earlier. Their testimony becomes untrustworthy and unreliable in view of the stand taken by the 45 FIR No.: 137/2005 accused themselves. The counsel for the accused has placed reliance on judgement 2007 (2) Criminal Court Cases 254 (Guahati) (DB) titled as Ainul Hoque & Ors. vs State of Assam. No doubt in case of previous enmity false case or the tendency to rope in innocent person alongwith guilty person cannot be ruled out but in the present case prosecution has been able to prove the presence of all the accused persons at the spot.
42. Ld. counsel for the accused also placed reliance upon judgement 2007 (2) Criminal Court Cases 214 (P&H) (DB) titled as Malkiat Singh vs The State of Punjab wherein it has been held that the credibility and trustworthiness of the defence witness ought to be attributed at par with that of the prosecution. No doubt the defence witnesses are at par with prosecution but for the sake of 46 FIR No.: 137/2005 repetition it may be mentioned that accused have failed to prove that they were not present on the day of incident.
43. In view of my abovesaid discussion, prosecution has been able to prove its case against all the accused persons u/s 307/34 IPC. Seeing the conduct of the accused and the nature of the injury i.e. dangerous and the part of the body where the bullet shots were fired i.e. on the left side of the chest where heart of a person is also situated the only presumption that can be raised by the court is that accused had full intention to cause the death of Maharaj Singh. As such all the accused persons are convicted of the offence u/s 307/34 IPC. So far as the section 326 IPC is concerned, then same is not an alternative charge and for same offence when accused has been convicted u/s 307/34 IPC, now they again cannot be convicted for offence u/s 326 IPC. The prosecution 47 FIR No.: 137/2005 has further been able to prove that accused Jitender used the gun and were found in possession of double barrel gun without any license or permit and thereby committed offfences u/s 25/27 of Arms Act. Accused Jitender is also convicted of the offence u/s 25/27 of Arms Act.
(MADHU JAIN) ASJ03/NORTH/DELHI Announced in the open court today i.e. 25.1.2010. 48 FIR No.: 137/2005