Delhi District Court
State vs 1.Ashish Kumar @ Ashu on 28 May, 2019
IN THE COURT OF MS. RAJ RANI, ADDL. SESSIONS JUDGE04,
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Case No. 52238/16
FIR No: 526/11
U/s: 307/34 IPC
PS : Sultan Puri
STATE Versus 1.Ashish Kumar @ Ashu
S/o Naresh Kumar
R/o H.No. 384, MCD Flats,
Sector4, Avantika,
Rohini, Delhi
2.Badal @ Kapil
S/o Sh. Vijay Kumar
R/o H.No. 112, MCD Flats,
Avantika, Rohini, Delhi
3.Deepak Kumar
S/o Sh. Raju
R/o H.No. 302, MCD Flats,
Sector4, Avantika,
Rohini, Delhi.
Complainant:
Sh. Ashwani Singh
S/o Sh. Udai Veer Singh
R/o C556, Sector 1,
Rohini, Delhi
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 1/55
Date of receipt of file in Sessions Court : 21.12.2013
Date of reserve for orders : 21.05.2019
Date of judgment : 28.05.2019
J U D G M E N T:
1. In brief, the case of the prosecution is that on 13.11.2011, complainant Ashwani Singh s/o Udaiveer Singh gave a complaint to the effect that he along with his family resides at C 556, Sector1, Rohini, Delhi and used to manufacture photo frames. Two boys namely Ashish and Deepak who resides in the MCD colony near to his house and to whom he already knew by faces had quarreled with his friends Deepak s/o Prem Kumar R/o 778780, Sector1, Avantika and Manish s/o Shankar Narayan R/o C553, Sector1, Avantika, few days back on the issue of playing video game. During the said quarrel, Ashish and Deepak had threatened to teach a lesson to them. On 13.11.2011, he along with his friends Deepak and Manish had deboarded from the RTV bus at the bus stand of Main Kanjhawala Road and was going on foot to take the sister of Deepak from the house of his Mausi at C51, Krishan Vihar, Delhi. At about 10.00pm, when they reached at the street of Rathi Builder, Krishan Vihar then accused Ashish and Deepak along with one other person came on a black color motorcycle bearing No.DL 8SND 2419 from behind. Accused Ashish who was riding the motorcycle stopped the motorcycle near them Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 2/55 and said, "aaj inka kaam kar do". On this, Deepak who was carrying weapon, fired on him and due to fear, he fell down. Thereafter, all the said three boys fled away on the motorcycle towards Krishan Vihar and at some distance, in a pit, on the road, their motorcycle turned over and after leaving their motorcycle, they all ran away from there. He has further stated that due to falling, he received abrasions/scratches on his back and left hand. His associate Deepak called at number 100. PCR and local police arrived at the spot and took the injured at Sanjay Gandhi Memorial hospital. On the basis of said complaint/statement of the complainant, FIR No.526/11 under Section 307/34 IPC and 25/27 Arms Act was registered at PS Sultanpuri against accused Ashish Kumar, Badal and Deepak Kumar.
2. After completion of investigation, charge sheet was prepared and filed in the concerned court of Ld. Metropolitan Magistrate. On taking cognizance of offence and supplying copies to the accused persons under Sec. 207 Cr.PC, Ld. Metropolitan Magistrate had committed the case under Sec. 209 Cr.PC.
3. The case was received in Sessions Court on 21.12.2013 on allocation. After hearing arguments on charge, vide order dated 28.07.2014, charge under Section 307/34 IPC was framed against all accused persons and separate charge u/s 25/27 Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 3/55 Arms Act was framed against accused Deepak Kumar and separate charge u/s 25 Arms Act was also framed against accused Badal @ Kapil by the Ld. Predecessor of this Court to which accused persons pleaded not guilty and claimed trial.
4. In order to bring home the guilt of the accused persons, the prosecution has examined seventeen witnesses.
PUBLIC WITNESSES
5. PW3/Ashwani Singh deposed that accused Ashish and Deepak reside near to their colony at MCD colony, Avantika Delhi. About six months prior to the month of November, 2011, he and his friends Deepak and Manish had hot exchanged of words and a minor scuffle with accused Ashish and Deepak regarding playing of video game and at that time, both the accused Ashish and Deepak had threatened them to see them later. On 13.11.2011, he alongwith his friend Deepak and Manish got down from RTV van at main Kanjhawala road bus stand and were going to the house of Mausi of Deepak at C51, Krishan Vihar, for bringing the sister of Deepak from there and at about 10.00pm, when they reached at Rathi builder wali gali, Krishan Vihar, Delhi, in the meantime, one black colour Apache motorcycle bearing registration No. 2419 came from their back side which was being driven by accused Ashish and accused Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 4/55 Deepak and Badal were the pillion riders. When the motorcycle came parallel to them, one of the pillion rider had shouted "aaj iska kaam bitha do" and then Deepak who was carrying katta had fired upon him and as a result of that he fell down on the ground and then all the three assailants had fled away towards Krishan Vihar and while fleeing accused Badal had also taken out the katta and again fired towards his friend Deepak who was trying to chase them and thereafter all the three accused fell down with their motorcycle as there was a pit on the road and thereafter all the three accused persons after leaving the motorcycle there had fled away from the spot. He received injury on his back and left hand in the said incident. His friend Deepak had informed the PCR. Police from PS Sultan Puri came at the spot and taken them to SGM hospital where he was medically examined and IO recorded his statement Ex.PW3/A. After that, he again came at the spot with the police officials and IO inspected the spot in the torch light. IO prepared the site plan Ex.PW3/B. The motorcycle used by the accused persons was also taken into possession by the police vide seizure memo EX.PW3/C. He changed his clothes and the clothes which he was wearing at the time of incident were handed over to the IO and seized by him vide seizure memo Ex.PW3/D. He has further deposed that on the same day, he alongwith IO and 34 other police officials went in search of the accused persons at Multi Gym park, Avantika, Delhi and at his instance and Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 5/55 identification, police officials had apprehended all the three accused persons. On formal search, one katta was recovered from accused Deepak from the left dub of his wearing pants. On formal search, one katta was also recovered from accused Badal from the left dub of his wearing pants. Nothing incriminating was recovered from accused Ashish. One empty cartridge was found in the katta which was recovered from the possession of accused Badal. IO prepared the sketches Ex.PW3/E and Ex.PW3/F of the kattas recovered from the possession of accused Deepak and Badal and kept both the recovered kattas and cartridge in two separate plastic containers and duly sealed and seized the same vide seizure memo Ex.PW3/G and Ex.PW3/H. All the three accused persons were arrested vide arrest memos Ex.PW3/J (Deepak), Ex.PW3/K (Badal), ExPW3/L (Ashish). They were personally searched vide personal search memos Ex.PW3/M, Ex.PW3/N and Ex.PW3/K.
6. On asking leading question by the Ld.Addl. PP for the State, he has deposed that the empty cartridge was recovered from the katta which was recovered from accused Deepak and live cartridge was recovered from the katta recovered from accused Badal. He has identified the shirt of dark green colour make Sprit Ex.P1, one white half sleeves T Shirt Ex.P2 and vest of Swagat Brand Ex.P3. He has also identified country made pistol Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 6/55 Ex.P4 as the same recovered from the possession of accused Deepak, one live cartridge Ex.P5, Six photographs Ex.PW6/1 to Ex.PW6/6 of motorcycle of black color make TVS Ex.P6.
7. He was crossexamined by Ld. Counsels for accused persons and in his crossexamination, he has deposed that all the accused persons were known to him for last about 1011 years. IO recorded his statement between 11.00pm - 12.00 midnight. His statement was recorded after coming back from hospital. Police reached at the spot at about 10.15pm and they came back from hospital at about 11.00pm. At the time of recording his statement Ex.PW3/A, he did not tell the IO that Badal was also one of the assailant. He has voluntarily stated that in his subsequent statement, he had told the name of Badal to the police. He had a quarrel with the accused persons about two years prior to the present incident. On putting a question by Ld. Counsel, he has stated that the quarrel had taken place about six months prior to the present incident. The motorcycle stopped near him for about 10 seconds and moved ahead after the incident. The bullet was fired towards him from the right side and he fell down on his front side. The bullet passed his right side back. He along with IO reached at the PS at about 11.00 11.30pm. IO did not ask anybody to bring any light to search. IO did not see anything in the light of torch. He has further stated that it took about 10 minutes in reaching the hospital and he Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 7/55 remained there for about 20 minutes. He had a very little bleeding which had also come on his clothes. He had told the IO that his clothes torn due to bullet injury and not due to fall on ground. He has further deposed that there were 1012 public persons inside the DDA Multi Gym park from where accused have been arrested and IO did not ask those persons to join the investigation. Accused persons did not try to run away from the spot.
8. PW4/Manish Kumar deposed that he resides at C553, Sec1, Avantika, Rohini alongwith his family and he used to do the job on lathe machine (kharad) with his father at Azad market. On 13.11.2011, he alongwith his friends Ashwani Singh and Deepak was going to Krishan Vihar to take the sister of Deepak from the house of her aunt (mausi). They alighted from the RTV at main bus stand and from there, they moved towards Krishan Vihar and when at about 10.00pm, they reached in the street of Rathi Builder, Krishan Vihar, there one motorcycle of black colour came from their back side which was being driven by accused Ashish and accused Badal was sitting behind accused Ashish and accused Deepak was sitting behind Badal on the said motorcycle. All the three accused were known to him prior to the present incident as they were the residents of MCD Colony, Sector4, Rohini Delhi. Accused Deepak and Badal took out their weapons and fired towards Ashwani out of which Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 8/55 the shot came out of the weapon of Badal but the weapon of accused Deepak was a missed fired. None of the accused uttered anything prior to said firing. After the said firing incident, Ashwani fell down on the ground and accused persons on their said motorcycle moved ahead but at a short distance, their motorcycle slipped and fell down due to a pit on the road. When he and Deepak tried to chase them then one of the accused pointed a pistol towards them as such they discontinued the chase and accused persons ran away from the spot after leaving their motorcycle there on which 'AF' was mentioned on the rear number plate. On the front number plate of said motorcycle, the registration number DL ...2419 was mentioned but he did not remember the complete number.
9. PW4 further deposed that his friend Deepak dialed No. 100. SI Badami Lal alongwith staff reached at the spot. Badami Lal took Ashwani to the hospital after leaving him and Deepak at the spot alongwith one constable. At about 2.00am in the intervening night of 13/14.11.2011, SI Badami Lal alongwith Ashwani Singh came back at the spot. IO did efforts to trace the empty cartridge case at the spot but in vain. IO prepared site plan. At about 2.30am, family members of Ashwani Singh arrived at the spot alongwith some clothes for Ashwani Singh. The clothes which were worn by Ashwani at the time of incident ie one shirt, one half Tshirt and one white vest were seized by Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 9/55 the IO with the seal of BL. The said motorcycle which was used by the accused persons was also seized. Some days prior to the present incident, he and his friend Ashwani and Deepak had an altercation with accused Ashish, Badal and Deepak while playing video games in their neighbourhood and at that time they said, "abhi rehne do inhe baad me dekh lenge". On that night, at about 3.00am, they were discharged by the IO and they went to their respective homes. On 14.11.2011, he had telephonic conversation with his friend Ashwani and he informed him that the accused persons had been apprehended by the police and at that time, Ashwani was already there at the PS. He alongwith his friend Deepak S/o Prem Kumar also reached at PS at about 7.00pm and there he identified accused Ashish, Badal and Deepak while they were sitting in the room of IO being the assailants, as they were also well known to him prior to this incident. He has identified shirt of dark green colour having two holes on the back side, one white half sleeves T shirt and one vest of Swagat brand both having one hole on the right side back. He has also identified motorcycle No.DL 8SND 2419 Ex.P6. On asking leading question by the Ld. Addl. PP for the State, he had deposed that when the motorcycle on which accused persons were riding came parallel to them, accused Ashish after stopping the motorcycle said "inka Kaam kar do".
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 10/55
10. In his crossexamination by Ld. Defence counsels, he has deposed that prior to this incident, he did not had any quarrel with accused persons at any point of time. The quarrel on the issue of video games was between his friend Ashwani and accused persons which had taken place about 12 years prior to the present incident. He has further deposed that between the period of said quarrel and the present incident, he did not meet with the accused persons. He had only seen them passing on the road and they never threatened him during the said period. The mobile number of his friend Deepak with which he had dialled number 100 is 8802419454.
11. PW5/Deepak Kumar deposed that he resides at B778 780, Sector1, Avantika, Rohini Delhi alongwith his family. He used to help his father in running his factory of bonchina utensils. On 13.11.2011, he alongwith his friends Ashwani Singh and Manish were going to the house of his aunty (mausi) situated at C51, Krishan Vihar in a RTV. They alighted from the RTV at Budh Vihar bus stand, main Kanjhawala Road and thereafter moved toward Krishan Vihar on foot. At about 10.00pm, when they reached Rathi Builder wali street, Krishan Vihar there one motorcycle of black colour make Apache came from their backside which was being driven by accused Ashish. Accused Deepak was sitting behind Ashish and accused Badal was sitting behind Deepak. Accused Ashish stopped the bike Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 11/55 near them and said "aaj inka kaam tamam kar do" and thereafter accused Deepak and Badal took out kattas and fired towards them. Bullet came out from the katta of Deepak but no bullet was fired from the weapon of Badal. Just after firing, his friend Ashwani fell down and accused persons tried to flee away from the spot towards Krishan Vihar but at short distance there was a pit on the road due to which they fell down and after leaving their motorcycle at the spot, they ran away from the spot on foot towards Krishan Vihar. He dialed number 100 and informed the police. Ashwani had sustained injury on his back and left hand. On the rear number plate of the said motorcycle, AF was written and on the front number plate, registration no. DL 8S ND 2419 was written. After hearing the sound of firing, public persons gathered there. All the three accused were known to him prior to the incident as they were the residents of MCD colony, which was adjacent to their colony. He has further deposed that about five years prior, his friends Manish and Ashwani had a quarrel with all three accused on the issue of playing video game and his friend Ashwani had told him that all the three accused had threatened him to teach a lesson. After making a call at number 100, IO SI Badami Lal alongwith two constables reached at the spot. He has further stated that SI Badami Lal sent Ashwani to the hospital alongwith one constable and he alongwith Manish and SI Badami Lal remained at the spot.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 12/55
12. PW5 further deposed that SI Badami Lal alongwith one ct. Kailash went to hospital for the treatment of Ashwani Singh after leaving him, Manish and one constable at the spot and after the medical examination of Ashwani, he came back at the spot at about 2.15am. On 14.11.2011, after some time, Ct. Kailash also reached the spot after getting the FIR registered. IO with the help of torch tried to search empty cartridge and bullet led at the spot but in vain. IO prepared site plan at the instance of Ashwani and seized the said motorcycle used by the accused persons vide seizure memo Ex.PW3/C. On the asking of IO, family members of the Ashwani brought his clothes and thereafter, the clothes which Ashwani was wearing at the time of incident ie one algi coloured (kahi rang) shirt, one half sleeves tshirt of white colour and one vest of Swagat brand were seized by the IO after preparing the pullanda and sealing the same with his seal vide seizure memo Ex.PW3/D. They finally left the spot at about 3.00am. He has further deposed that on 14.11.2011 at about 7.00pm, on receiving telephonic information from Ashwani regarding the arrest of accused persons, he alongwith Manish reached at PS Sultanpuri at about 7.00pm and there in the room of SI Badami Lal, he identified accused Ashish @ Kalu, Badal @ Kapil and Deepak Kumar @ Raju. He has further deposed that he had earlier stated that in quarrel on the point of playing video games had Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 13/55 taken place between accused persons and his friends Manish and Ashwani but now he had recollected that he was also present there at the time of said quarrel and they all had also quarreled with him. Accused identified dark green colour shirt of make Sprit Ex.P1, one white half sleeves T shirt Ex.P2, one vest (baniyan) of Swagat brand Ex.P3 and Motorcycle Ex.P6.
13. In his crossexamination by Ld. Defence Counsels, he has deposed that the quarrel on the issue of playing video game with accused persons had taken place about 12 years prior to the date of present incident. He was having mobile number 8802419454 at the time of incident. Ashwani and Manish were also having mobile phones. He had dialed number 100 from the phone of some other person who had come at the spot as there was no balance in his phone. Street light was not there in the said street. But the light of houses which were there on both the sides of street was there in the street. Accused persons were not wearing helmets. Accused Deepak and Badal took out their weapons while sitting on the bike. Though public persons had gathered at the spot after the incident, but no one parked the bike in proper manner and it remained lying there. He did not observe any bleeding on the person of Ashwani. Accused persons remained at the spot for about 1 - 1½ minutes. Bullet hit Ashwani.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 14/55 POLICE WITNESSES
14. PW6 W/HC Kiran deposed that on 13.11.2011 her duty was on channel no. 118 to attend the calls made at 100 number from 8.00pm to 8.00am. On that day, at about 22:09:03 hours, she received a call from mobile number 8802419454 and caller informed her, "kishan vihar B20 near Budh Vihar bike sawar shoot karke bhaage hai". She filled the PCR form Ex.PW6/A regarding the said call and thereafter information was passed to Console. The certificate u/s.65B of Indian Evidence Act is Ex.PW6/B.
15. PW7/HC Kailash Chand deposed that in the intervening night of 13/14.11.2011, while working as duty officer from 12 midnight to 8.00am, he received a rukka at about 2.00am, sent by SI Badami Lal through Ct. Kailash. On the basis of said rukka, he got the present FIR recorded on computer through computer operator. Computerized copy of FIR EX.PW7/A. He made his endorsement Ex.PW7/B on the original rukka. After registration of FIR, he handed over copy of FIR and original rukka to Ct.Kailash to further hand over the same to SI Badami Lal.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 15/55
16. PW8/Ct. Naresh Kumar deposed that on 26.06.2012, as per the instructions of IO, he collected two jars in sealed condition and one pullanda in sealed condition vide RC No. 145/21/12 for depositing the same at FSL Rohini alongwith FSL form. After depositing the said exhibits at FSL Rohini, he handed over the receipt of FSL to MHC(M). The said pullandas were not tempered by him during the period said pullandas remained in his custody.
17. PW9/HC Govind Singh deposed that on 14.11.2011, while he was working as MHC(M), SI Badami Lal deposited two plastic jars and one pullada, sealed with the seal of BL and one motorcycle bearing registration no. DL 8S ND 2419 vide entry no. 13190 in register no. 19. On 16.02.2012, SI Badami Lal again deposited one pullanda sealed with the seal of BL stated to be containing six live cartridge of 8mm. The said pullanda was also deposited in malkhana vide entry no. 11454 Ex.PW9/A in register no. 19. On 26.06.2012, as per the instruction of SI Badami Lal, he handed over said two jars and one pullanda sealed with the seal of BL to Ct. Naresh vide RC no. 145/21/12 for depositing the same at FSL Rohini. After depositing the said exhibits, Ct. Naresh returned the acknowledgement of FSL to him. Copy of RC is EX.PW9/B and copy of acknowledgement of FSL is EX.PW9/C. Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 16/55
18. PW10/Ct. Gunender Singh deposed that on 13.11.2011, while working as DD writer from 4.00pm to 12.00midnight, at about 10.12pm, wireless operator of the police station Sultan Puri informed him through intercom that, 'Krishan Vihar B20 near Budh Vihar bike sawar shoot karke bhaage hai'. On the basis of said information, he recorded DD no. 63B Ex.PW10/A and SI Badami Lal was telephonically informed to take necessary action.
19. PW11/Ct. Vijender Kumar deposed that on 14.11.2011, one secret informer had met IO/SI Badami Lal at about 4.00pm and informed him that culprits wanted in the present case were sitting in Avantika Park. Thereafter, he alongwith IO, Ct. Rajbir and Ct. Kailash reached at Avantika Park where complainant Ashwani Singh met them. Complainant signaled towards three persons who were standing near a Gym stating that they were the accused persons wanted in the present case. Thereafter, they apprehended accused Deepak, Badal @ Kapil and Ashish @ Ashu. He had conducted the search of accused Deepak and on search one country made pistol was recovered from the left side dub of his pant. Search of accused Kapil @ Badal was conducted by Ct. Rajbir and during search one country made pistol was recovered from the left dub of his pant. Nothing incriminating was recovered from the search of accused Ashish. The country made pistols recovered from the accused Kapil and Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 17/55 Deepak were handed over to the IO. On checking, one empty cartridge shell was recovered from the country made pistol recovered from the possession of accused Deepak. The country made pistol recovered from the possession of accused Kapil @ Badal was found loaded with one live cartridge. IO prepared the sketch Ex.PW3/E of pistol and cartridge shell recovered from the possession of accused Deepak and sketch Ex.PW3/F of the pistol and cartridge recovered from the possession of accused Kapil @ Badal. The pistols, cartridge and cartridge shell were seized vide seizure memo Ex.PW3/F and Ex.PW3/G. Thereafter all the three accused persons were arrested and their personal search were conducted and their disclosure statements were recorded. The arrest memo and personal search memo of accused Deepak are Ex.PW3/J and Ex.PW3/M. The disclosure statement of accused Deepak is Ex.PW11/A. Thereafter they returned to the PS alongwith the accused persons. Complainant had also accompanied them to the PS. Thereafter accused persons led them to the place of occurrence and pointed out the place of occurrence vide pointing out memo Ex.PW11/B. Thereafter all the three accused persons were got medically examined and after medical examination accused persons were brought back to the PS. The case property were deposited in the Malkhana. He has identified country made pistol Ex.P4.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 18/55
20. In his cross examination by the ld.Addl. PP, he has deposed that only two plastic jar pullandas wrapped up with white cloth were prepared not four pullandas as stated by him in his examinationinchief, the articles (pistol and cartridge shell) recovered from accused Deepak were sealed in one pullanda and the articles (pistol and live cartridge) recovered from accused Kapil were sealed in second pullanda. He has further deposed that when accused persons were brought to the PS for the first time after their arrest, two public persons namely Deepak S/o Prem Kumar and Manish had come at the PS and had identified the accused persons as culprits of the present case.
21. PW12/Ct. Ramakant deposed that on 13.11.2011, from 8.00pm to 8.00am of 14.11.2011, he was working as computer operator. At about 2.00am, HC Kailash Chand duty officer arrived at CIPA room and handed over him one tehrir Ex.PW3/A and on the basis of said tehrir, he recorded the present FIR Ex.PW7/A on computer and it took about 1520 minutes in recording the FIR. After registration, the said FIR was freezed by him so that no tempering could be done by anyone. He handed over one copy of FIR alongwith original tehrir to the duty officer.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 19/55
22. PW13 Ct.Rajbir has deposed that on receiving information regarding presence of accused persons, he along with Ct. Vijender, Ct. Kailash and IO SI Badami Lal reached at the spot ie DDA Park, near Rohini Sector1, where three persons were seen sitting in the park and only boy pointed out towards those three persons. Accused Deepak, Badal and Ashish were apprehended. Deepak was found in possession of a katta which was empty and Badal was found in possession of one loaded katta having live cartridge. The sketches Ex.PW3/E and Ex.PW3/F of both the weapons were prepared by the IO. Both the kattas were kept in separate plastic jars and sealed. All the accused were arrested vide arrest memos Ex.PW3/J, Ex.PW3/K and Ex.PW3/L. He did not remember the name of person who met them and identified the accused persons.
23. He was crossexamined by Ld. Addl. PP for the state wherein he has deposed that there was a fired cartridge in the barrel of katta found in the possession of Deepak. It was complainant Ashwani who met in park and identified the accused persons. Deepak and Manish also reached in PS and identified the accused persons. He has identified the county made pistol along with empty cartridge Ex.P4 and the country made pistol along with one live cartridge Ex.P5.
24. PW14 Ct. Kailash has deposed on the same line as deposed by PW11/Ct. Vijender. Besides this, he has proved the Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 20/55 disclosure statements Ex.PW14/A of accused Ashish and Ex.PW14/B of accused Badal. He has also identified the green color shirt Ex.P1, Tshirt Ex.P2, Vest Ex.P3, county made pistol along with empty cartridge Ex.P4, country made pistol along with one live cartridge Ex.P5 and motorcycle Ex.P6.
25. PW15/DCP M.A. Rizvi deposed that on 21.02.2013, he was posted as Addl. DCPI, Outer District, Delhi. On that day, after perusal of the photocopies of case file of FIR No. 526/11 including charge sheet, statements of the witnesses recorded u/s 161 Cr.P.C and other documents including seizure memos, sketches of weapons etc and also after perusing the FSL result of ballistics, he was of the opinion that during the investigation of the present case, accused Deepak Kumar was found in possession of one country made pistol of .315" bore and one 8mm/.315" cartridge and accused Badal @ Kapil was also found in possession of one country made pistol of .315 bore and one 8mm/.315" cartridge without any license. As such, he accorded sanction for their prosecution u/s 39 Arms act. The sanction qua accused Deepak Kumar is Ex.PW15/A and sanction qua accused Badal @ Kapil is EX.PW15/B.
26. PW16/SI Badami Lal, Investigating officer of the case has deposed that in the intervening night of 13/14.11.2011, he was on emergency night duty from 8.00pm to 8.00am. On that night, Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 21/55 at about 10.15 pm, he alongwith Ct. Kailash was already in the area of PS in connection with some other call. There duty officer informed him regarding the contents of DD No. 63B ie "Krishan Vihar B20, near Budh Vihar, bike sawaar shoot karke bhaage hain". After receiving this information, he alongwith Ct. Kailash reached at the spot ie street of Rathi Builder, Krishan Vihar. There complainant Ashwani Singh alongwith his friends Deepak and Manish met them. Meanwhile, beat Constable Sandeep also reached there. He left Ct. Sandeep at the spot and thereafter, he alongwith Ct. Kailash took injured Ashwani to SGM hospital, Mangolpuri and got him medically examined vide MLC no. 19919/11. He recorded statement of complainant Ex.PW3/A and prepared tehrir Ex.PW16/A and handed over the same to Ct. Kailash who went to PS for registration of FIR. He alongwith Ashwani came back at the spot and prepared site plan of the spot Ex.PW3/B at the instance of Ashwani. One motorcycle of black colour make Apache of which front number plate was bearing registration no. DL 8SND 2419 and on the rear number plate AF was found written was also found parked at the spot, regarding which he came to know that same was lying in a pit which was later on parked properly by someone prior to his reaching there for the first time. Meanwhile, Ct Kailash arrived at the spot and handed over copy of FIR and original tehrir to him. He seized the said motorcycle vide seizure memo Ex.PW3/C. Thereafter, he seized the clothes which were Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 22/55 worn by complainant Ashwani Singh at the time of incident ie one kai colour (greenish) shirt having one hole of 6x4cm on upper back side and another hole on lower back, one white half sleeves Tshirt and one vest of Swagat brand having blood stain on its back and a hole of 7x4cm, were seized vide seizure memo Ex.PW3/D. Thereafter, he alongwith Ct .Kailash, Ashwani, Deepak and Manish reached PS Sultan Puri and he recorded supplementary statement of Ashwani and statements of Deepak and Manish. Thereafter, they were discharged. He deposited the case property in the malkhana.
27. PW16 further deposed that on 14.11.2011, when he was present at PS Sultanpuri, there at about 04:00pm, he received a secret information that the accused persons involved in the present case, were sitting near a Gym inside Avantika Park. Thereafter, he along with Ct. Rajbir, Ct. Kailash and one more constable left the Police Station to reach Avantika Park. Prior to leaving the Police Station, he telephonically informed complainant Sh. Ashwani to reach on the road outside the Avantika Park. They reached near Avantika Park and there on the road complainant also met them. All the three constables accompanying him were in civil dress and he was in uniform. He asked three or four passersby to join the raiding party but all of them refused and left the place without telling their names and addresses. Thereafter, without wasting time, all the three Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 23/55 accused persons namely Ashish, Badal and Deepak were apprehended, from inside the said park, on the identification of complainant. On conducting general search of accused Deepak, one country made pistol was recovered from his left dub and on opening its barrel, one empty cartridge was found inside its barrel. He prepared sketch Ex.PW3/E of country made pistol and cartridge. On conducting general search of accused Badal @ Kapil, one country made pistol was recovered from the left dub of his pant and on opening the same, one live cartridge was found in the barrel. He prepared sketch Ex.PW3/F of country made pistol and cartridge. Both the said country made pistols along with cartridges recovered from accused Deepak and Badal were seized vide seizure memos Ex.PW3/G and Ex.PW3/F, after keeping them in two separated plastics containers and sealing the same with the seal of "BL". He recorded disclosure statements Ex.PW11/A, Ex.PW14/A and Ex.PW14/B of accused Deepak, Badal, and Ashish and they were arrested vide arrest memo Ex.PW 3/J, Ex.PW3/K & Ex.PW3/L and their personal search was conducted Ex.PW3/M, Ex.PW3/K & Ex.PW3/L. He telephonically asked Duty Officer to send a Gypsy there at Park and in the said Gypsy, accused persons were taken to Police Station. Witnesses Deepak and Manish also reached at Police Station and they identified all the three accused persons. He recorded their supplementary statements. Case property was deposited in Malkhana.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 24/55 Thereafter all the three accused persons led the Police Party to the spot ie Rathi Builder Wali Gali, Krishan Vihar and pointed out the spot vide pointing out memo Ex.PW11/B. Thereafter, they came back to PS and accused after their medical examination put into the lockup. He has further deposed that on 15.11.2011, accused were produced before the court and remanded to JC. Owner of the motorcycle bearing registration no. DL 8S ND 2419 namely Naresh produced the original RC of the said motorcycle and same was seized by him vide Ex.PW16/B. He requisitioned six live cartridges of 8mm from old Police Line for comparison in FSL and same were seized by him vide seizure memo Ex.PW16/C. He collected the PCR form and the same was made part of record. On 26.06.2012, he got the exhibits of the present case, deposited in FSL through Ct. Narender Singh. Thereafter he prepared the charge sheet and filed in the court. He has identified Shirt Ex P1, Tshirt Ex P2, Vest (Baniyan) Ex.P3, country made pistol and empty cartridge case Ex P4 (collectively) recovered from the possession of accused Deepak, country made pistol with one live cartridge Ex.P5 recovered from accused Badal and motorcycle Ex P6.
MEDICAL WITNESSES
28. PW1/Dr. Munish Wadhawan deposed that on 14.11.2011, he had seen the MLC no. 19919 Ex.PW1/A of Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 25/55 patient Ashwani S/o Sh Udaiveer and he opined the nature of injury as simple which was possible by friction against rough hard surface.
In his crossexamination by Ld. Counsel for accused persons, he has deposed that in his opinion, there was no burn injury.
29. PW2/Dr. Mahipal Singh deposed that on 14.11.2001, he was posted at SGM hospital as casualty medical Officer. On that day, Dr. Kamal, JR was also on duty with him. On that night, at about 12.45am, one Ashwani S/o Udaiveer, 22 years old, male brought by Ct. Kailash was medically examined by Dr. Kamal in his presence and prepared the MLC Ex.PW1/A. The MLC is in the handwriting of Dr. Kamal. Dr. Kamal has left the hospital and his present whereabouts were not known to him.
FORENSIC WITNESS
30. PW17 Shri V.R Anand deposed that on 26.06.2012, three sealed parcels, sealed with the seal of BL were received in the office of FSL. The seals were tallying with the specimen seal provided on forwarding letter. The same were marked to him for examination. On opening the parcel no.1, one country made pistol .315 inch bore and one 8 mm/.315 inch cartridge were taken out and marked as F1 and A1 respectively. On opening Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 26/55 the parcel no.2, one country made pistol .315 inch bore and one 8 mm/.315 inch cartridge case were taken out and marked as F 2 and EC1 respectively. On opening the parcel no. 3, six 8mm/.315 inch cartridges were received for test firing. He examined the said exhibits and found that the country made pistols mark Ex F1 and F2 were in working order and test fire conducted successfully. The cartridge marked Ex.A1 was a missed fired cartridge. The cartridge case marked Ex. EC1 was fired empty cartridge. The three 8mm/.315 inch cartridges taken from cartridge sent for test firing were test fired through the country made pistols marked Ex F1 and test fired cartridges were marked as TC1 to TC3. The two 8 mm/.315 inch cartridges taken from cartridges sent for test firing were test fired through the country made pistols marked Ex F2 and test fired cartridges were marked as TC4 and TC5. The individual characteristic of firing pin marks present on cartridge mark Ex.A1 were insufficient for comparison and opinion, whether it had been fired through the country made pistols mark Ex F1 and F2 or not. The individual characteristics of firing pin marks present on cartridge case mark Ex EC1 and on TC4 and TC5 were examined under comparison microscope and were found identical, hence the cartridge case EC1 had been fired through the country made pistol mark Ex F2. The exhibits F1 and F 2/EC1 and A1 were firearm/ ammunition as defined under Arms Act 1959. All the exhibits were released with the seal of Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 27/55 VRA, FSL Delhi after examination. His detailed report dated 30.10.2012 is Ex PW 17/A.
31. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and defence and the documents proved by them are hereby put in a tabulated form as under: Sr. PW Name of the witnesses Details of witnesses No. No.
1. PW1 Dr. Munish Wadhawan Opined the nature of injury
2. PW2 Dr. Mahipal Singh Proved the MLC
3. PW3 Ashwani Singh Complainant
4. PW4 Manish Eye witness
5. PW5 Deepak Kumar Eye witness
6. PW6 W/HC Kiran PCR official
7. PW7 HC Kailash Chand Duty officer
8. PW8 Ct. Naresh Kumar Deposited the exhibits at FSL
9. PW9 HC Govind Singh MHC(M)
10. PW10 Ct. Gunender Singh DD writer
11. PW11 Ct. Vijender Kumar Police witness
12. PW 12 Ct. Ramakant Computer operator Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 28/55
13. PW13 Ct. Rajbir Police witness
14. PW14 Ct. Kailash Police witness
15. PW15 DCP Shri M.A. Rizvi Accorded Sanction u/s.39 Arms Act
16. PW16 SI Badami Lal Investigating Officer
17. PW17 V.R. Anand Forensic Witness LIST OF DEFENCE WITNESSES Sr. DW Name of the witnesses Details of witnesses No. No.
1. DW1 Shri Naresh Defence witness
2. DW2 Smt. Bina cousin of accused Ashish
3. DW3 Ashish Accused Ashish appeared as DW
4. DW4 Rakesh Cousin of accused Deepak List of documents S.No Exhibit No. Details of documents Name of witness
1. Ex.PW1/A MLC Dr.Munish Wadhawan 2 Ex.PW3/A Statement Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 29/55 3 Ex.PW3/B Site plan 4 Ex.PW3/C Seizure memo of motor cycle 5 Ex.PW3/D Seizure memo of clothes 6 Ex.PW3/E Sketch of katta recovered from Deepak 7 Ex.PW3/F Sketch of katta recovered from Badal Ashwani Singh 8 Ex.PW3/G Seizure memo of kattas and recovered from accused Ex.PW3/H Deepak and Badal 9 Ex.PW3/J Arrest memo of accused Deepak 10 Ex.PW3/K Arrest memo of accused Badal 11 Ex.PW3/L Arrest memo of accused Ashish 12 Ex.PW3/M, Personal search memos Ex.PW3/N of accused persons and Ex.PW3/K 13 Ex.P1 Shirt 14 Ex.P2 Tshirt 15 Ex.P3 Vest 16 Ex.P4 Country made pistol Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 30/55 alongwith empty cartridge 17 Ex.P5 Country made pistol alongwith one live cartridge.
18. Ex.P6 Motorcycle
19. Ex.PW6/1 Six photographs of to motorcycle.
Ex.PW6/620. Ex.PW6/A PCR form W/HC Kiran 20 Ex.PW6/B Certificate under section 65B of Indian Evidence Act 21 Ex.PW7/A Copy of FIR HC Kailash Chand 22 Ex.PW7/B Original rukka 23 Ex.PW9/A Copy of relevant entry in HC Govind Singh register no.19 24 Ex.PW9/B Copy of RC 25 Ex.PW9/C Acknowledgement of FSL 26 Ex.PW10/A Copy of DD no. 63B. Ct. Gunender Singh 27 Ex.PW11/A Disclosure statement of Ct. Vijender Kumar accused Deepak 28 Ex.PW11/B Pointing out memo 29 Ex.PW14/A Disclosure statement of Ct. Kailash Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 31/55 and accused Ashish and Ex.PW14/B Badal 30 Ex.PW15/A Sanction u/s 39 Arms Shri M.A. Rizvi, Act qua accused Deepak DCP Kumar 31 Ex.PW15/B Sanction u/s 39 arms act qua accused Badal 32 Ex.PW16/A tehrir SI Badami Lal 33 Ex.PW17/A FSL report. Shri V.R. Anand LIST OF DOCUMENTS PROVED BY DEFENCE WITNESSES.
S.No Exhibit No. Details of documents Name of witness
1. Ex.DW1/A Certified copy of charge Shri Naresh sheet 2 Ex.DW1/B Bail bond
3. Ex.DW2/A Copy of voter I card Smt. Bina
32. After completion of the prosecution evidence, statements of accused under Section 313 Cr.P.C has been recorded, wherein, they have denied the incriminating evidence put to them and alleged that this is a false and frivolous case against them. They have been falsely implicated in this case by the complainant and his friends in connivance with the police officials. Nothing incriminating was recovered from them or at their instance. The alleged recovery has been planted on them Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 32/55 by IO. In order to prove their defence, accused Ashish and Deepak have examined four witnesses.
33. DW1 Naresh Kumar deposed that on 13.11.2011, there was a ring ceremony of his niece who resides in Flat No.16/15, MCD Colony, Model TownIII, Delhi. He alongwith his wife and his son Ashish went to attend the ring ceremony in the evening. He alongwith his wife left the said place at around 11.00pm on his bike bearing registration no. DL 8S ND 2419. His son Ashish remained at the place of his sisterinlaw for work purpose. On 14.11.2011 at around 10.00am, one police official came from PS Sultanpuri to his residence and told him to bring Ashish in the police station. His son Ashish came back to home at around 11.00am and he asked him whether there is anything happened but he refused thereafter he alongwith his son went to the PS Sultanpuri. When they reached at the police station, the police official asked him to bring his motorcycle bearing registration no. DL 8SND 2419 and brought the same from his home. Thereafter, the police official arrested his son Ashish and also seized the motorcycle. He came back to his home at about 4.00pm. He was asked to get the motorcycle from the court on superdari by the police official. Thereafter, he consulted with his lawyer about the arrest of his son and seizing of his vehicle illegally by the police official who guided him to get the vehicle released on supardari and whatever he had to say/grievances, Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 33/55 he may tell in the court. Thereafter, he moved an application for releasing the vehicle on supardari in the court and got the motorcycle released on furnishing supardarinama. Ashwani in conspiracy with the police official has made this false case against his son as he had given the surety of Ashwani in the case FIR No. 126/09 u/s 394/397/34/411 IPC, PS Mayapuri and the conduct of Ashwani was not good and he told him to leave the bad company but he refused and he threatened him that if he will not leave the bad company, he will withdraw the surety. At that time, Ashwani threatened him that he will implicate him or his family in false case.
34. DW2/Bina deposed that accused Ashish is the son of his real sister. On 13.11.2011 there was a ring ceremony of her daughter Savita at her residence. At about 6.00pm, accused Ashish, his father and his mother came to her residence to attend the ring ceremony of her daughter. Accused Ashish stayed at her home in the night as he was working after function till 1:00am and he went to his home at about 10:00am on 14.11.2011. The parents of accused Ashish had left her house at about 11:00pm on 13.11.2011. She has proved the copy of her voter ID card Ex.DW2/A.
35. DW3 Ashish (accused himself) deposed that on 13.11.2011, there was a ring ceremony of his cousin, who Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 34/55 resides in flat No. 16/15, MCD colony, Model TownII, Delhi. He alongwith his parents went to attend the ring ceremony in the evening. His parents left the said place at around 11:00pm on bike bearing registration no, DL 8SND 2419. He remained at the place of his aunt (Mausi) for work purpose. He left the house of his mausi on next day ie on 14.11.2011 at about 10:00am and reached his house at about 11:00am. When he reached at his house, his father informed him that at around 10:00am, one police official came from PS Sultanpuri to his residence and told to bring him in the police station. Thereafter, he alongwith his father went to the PS Sultanpuri. When they reached at the police station, the police official asked his father to bring motor cycle bearing registration no. DL 8SND 2419 and he brought the same from his house. Thereafter, the police official arrested him and also seized the motorcycle and also obtained his signature on some blank papers. He has been falsely implicated by Ashwani in conspiracy with his friends and police official in the present case.
36. PW4/Rakesh deposed that accused Deepak is the son of his aunt(mausi). On 13.11.2011, accused Deepak came at his residence at E28, DBlock, Nand Nagri, Delhi and stayed with them in the intervening night of 13/14.11.2011 and had left their residence after taking breakfast at about 10:3011.00am on 14.11.2011. He had arrived at their home at 2.00pm on Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 35/55 13.11.2011.
37. I have heard the arguments of Shri Virender Kharta, Ld.Addl. PP for the State and Shri Virender Chaudhary, Ld. Counsel for accused Deepak and Shri Mohit Batra, Ld. Counsel for accused Ashish and Badal and have carefully perused the record.
38. Ld. Addl. PP for the State has mainly argued that the prosecution has proved its case beyond all shadow of reasonable doubts by leading cogent and convincing evidence. The prosecution has been able to prove that accused persons had fired upon the complainant and his friends with the intention to kill them. It has been argued that the testimonies of PWs are reliable, cogent and convincing and there is no material discrepancy or inconsistency in their deposition and hence all the accused are liable to be convicted for commission of offences with which they have been charged with. Ld. Addl. PP has further argued that PW3 Ashwani, PW4 Manish and PW5 Deepak have fully supported the case of prosecution and correctly identified the accused persons. A perusal of testimony of these witnesses would show that accused persons had intentionally fired upon them which is clearly reflected from the words uttered by them prior to the attack and the act of the accused persons was of such a nature so as to invoke Section Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 36/55 307 IPC. It is submitted that PW4 and PW5 corroborate the testimony of PW3 qua the time and place of incident and fully corroborated the incident. PW1 Dr. Munish Wadhawan and PW2 Dr.Mahipal Singh also corroborated the prosecution case and proved MLCs of complainant Ashwani. As such, all the accused persons are liable to be convicted for the offences punishable under Section 307/34 IPC and accused Deepak is also liable to be convicted for the offences punishable under Sections 25/27 of Arms Act. Accused Badal is liable to be convicted u/s.25 of the Arms Act.
39. Ld. Counsels for accused persons argued that accused persons have been falsely implicated in the present case. In the present case no incriminating corroborative evidence is brought on record by the prosecution. The case property has been planted upon the accused persons. Ld. Defence counsels have pointed out that there are material contradictions and discrepancies in the testimonies of three eye witnesses, arrest witnesses and recovery witnesses. Ld. Defence counsels requested for acquittal of the accused. Ld. Defence counsels have also filed written submissions and argued in length almost on the same lines which will be discussed in the later part of the judgment.
40. In order to prove its case, prosecution has mainly relied upon the testimony of PW3 Ashwani Singh, PW4 Manish Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 37/55 Kumar and PW5 Deepak Kumar who are the most material witnesses of this case. PW3 is the injured who has deposed that on 13.11.2011 he alongwith his friend Deepak and Manish had got down from RTV van at main Kanjhawala road bus stand and were going to Deepak's aunty house at C51, Krishan Vihar, to bring sister of Deepak from there and at about 10.00pm, when they reached at Rathi builder wali gali, Krishan Vihar, Delhi, in the meantime, one black colour Apachi motorcycle bearing registration no. 2419 came from their back side which was being driven by accused Ashish and accused Deepak and Badal were the pillion riders. When the motorcycle came parallel to them, one of the pillion rider had shouted "aaj iska kaam bitha do" and then Deepak who was carrying katta had fired upon him and as a result of that he fell down on the ground and then all the three assailants had fled away towards Krishan Vihar and while fleeing accused Badal had also taken out the katta and again fired towards his friend Deepak who was trying to chase them and thereafter all the three accused fell down along with the motorcycle due to pit on the road and thereafter all the three accused persons after leaving the motorcycle there had fled away from the spot.
41. PW4 who is an eye witness to the incident corroborates the testimony of PW3 qua the incident and deposed on the lines of PW3. The testimony of PW3 further finds corroboration Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 38/55 from the testimony of PW5 Deepak Kumar who is also an eye witness to the incident.
42. The testimony of PW3 further stands corroborated by PW1 Dr Munish Wadhawan and PW2 Dr. Mahipal Singh who proved the MLC Ex.PW1/A of injured Ashwani. The testimony of PW3 that when Deepak had fired upon him, he fell down on the road is also corroborated by Dr. Munish Wadhawan/PW1 who opined the nature of injury as simple which was possible by friction against rough hard surface.
43. The case of the prosecution is further strengthened by the recovery of motorcycle Ex.P6 from the spot which is proved by PW3, PW4, PW5, PW14 and PW16.
44. It has been argued by Ld. Counsels for accused persons that the prosecution has failed to prove its case beyond reasonable doubt and accused persons have been falsely implicated in the present case. This contention of Ld. Counsels is not tenable as injured PW3 has fully supported the case of prosecution and correctly identified all the accused persons. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scotfree and would falsely implicate any other person. As already discussed, the testimony of PW3 is also corroborated by Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 39/55 PW4 and PW5.
45. The reliance can be placed in judgment Abdul Sayeed V. State of M.P. (2010) 10 SCC, 259, wherein from para 28 to 30, it has been observed as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
29. While deciding this issue, a similar view was taken in, Jarnail Singh V. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:
28."Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 40/55 tubewell. In Shivalingappa Kallayanappa V. State of Karnataka,1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident."
29. In State of UP V. Kishan Chand (2004) 7 SCC 629, wherein, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 41/55 for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
46. Ld. Counsels for accused have argued that the sister of PW5 Deepak who was present at the spot when the police arrived, has not been examined by the prosecution. As a matter of record, sister of Deepak has not been cited as a witness. But failure on the part of investigating agency not to cite the sister of Deepak as witness does not in any way lead to the inference that the case of the complainant is false. This contention of Ld. Counsels for accused is not tenable as nonexamination of sister of PW5 Deepak does not materially affect the prosecution case. The three public witnesses namely PW3 Ashwani, PW4 Manish and PW5 Deepak have supported the case of the prosecution and it is settled law that no particular number of witnesses shall in any case be required for proof of any fact. The provisions contained in Section 134 of the Indian Evidence Act are founded on the principle that evidence has to be weighed and not counted. It should be remembered that plurality of evidence is only a rule of prudence and not an inflexible requirement of law. The necessity of plurality crops up in those cases where evidence of a solitary witness is not wholly reliable and where it is then in view of the provisions contained Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 42/55 in Section 134 of the Indian Evidence Act, the testimony of a solitary witness is sufficient to convict an accused.
47. Ld. Defence counsels have further argued that as per prosecution, the three accused persons stopped for fraction of seconds and the complainant and other witnesses identified them, when there was no sufficient light. No electric pole/ street light has been shown in the site plan also. This contention of the Ld. Counsels is liable to be rejected as it has come on record through the testimony of PW3 and PW5 that there was sufficient light on the spot. PW3 has deposed in his cross examination that street light was there and the light of houses was also there on the road and as such, there was sufficient visibility. There was street light pole about 20 feet ahead of the place of incident. PW5 has also deposed in his cross examination that light of the houses which were there on both the sides of the street was there in the street.
48. It has been argued by Ld. Counsels for accused persons that no empty cartridges have been recovered from the spot which itself falsifies the case of the prosecution and shows that accused persons have been falsely implicated in the present case. This contention of Ld. Counsels is not tenable. Merely, on the basis of nonrecovery of empty cartridges, accused are not entitled to be acquitted as prosecution has been able to prove its case beyond reasonable doubt.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 43/55
49. Ld. Counsels have further argued that as per prosecution, accused persons were arrested from Multi gym Park Avantika on 14.11.2011, while they were sitting and carrying arms. It is highly unbelievable that the person who fired last night at some person and missed the fire and who left their bike at the spot will sit in the park near their house, when the accused persons and complainant and other public witnesses are neighborers and knew each other since their childhood. A normal person will firstly hide the weapon and fled away to some other place. It has been further argued that as per prosecution, the shot was hit from a very short distance and as per complainant, the bullet hit him but no mark or gun powder was noticed by the doctor and no explanation has been given by the doctor in this regard, which creates doubt to the prosecution story. Ld. Counsels have relied upon judgment in case State of Uttrakhand V. Jarnail Singh in SLP (Crl.) No.1651 of 2015, DOD 13.11.2017.
50. This argument of Ld. Counsels does not hold water. The three public witnesses i.e. PW3, PW4 and PW5 have corroborated the case of the prosecution and there is no reason to discard their testimonies. Even if it is admitted that accused persons were not arrested from the place and manner as shown by the prosecution, even then, merely any illegality in arrest of accused does not affect the prosecution case. The judgment Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 44/55 relied upon by Ld. Counsels for accused is not applicable to the facts of present case and the defence taken by accused persons qua their arrest is liable to be rejected as it is settled law that any illegality in arrest of accused persons does not vitiate the proceedings. Reliance can be placed on judgment Mobarik Ali Ahmed Vs The State of Bombay, 1957 AIR SC
857.
51. It has been argued by Ld. Counsels for accused persons that the identity of bike was not proved properly as the photographs of its engine number and chassis number were not taken by the IO at the spot which shows that the bike was not recovered from the spot. This contention of the Ld. Defence counsels is also not tenable as the recovery of bike from the spot has been fully proved by the prosecution witnesses. It has been proved on record through the testimonies of PW4, PW5, PW14 and PW16 that on the rear number plate of the said bike 'AF' was written which itself is reflecting in the photographs Ex.PW6/2 and Ex.PW6/4 of the said motorcycle. As such, identity of the motorcycle Ex.P6 has been duly proved on record. All the recovery witnesses have deposed on the lines of prosecution case and have corroborated each other in this regard.
52. Ld. Counsel for accused Badal has contended that as per Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 45/55 complaint Ex.PW1/A, the third person was unknown person and accused Badal has not been named in the complaint, on the basis of which present FIR has been registered. The complainant has named only two persons but he has not named accused Badal in his first statement whereas he has admitted during his testimony that he knew all the accused persons for the last 12 years prior to the incident, which also creates doubt to the prosecution case. Ld. Counsels have relied upon judgment in case Amrish Rana V. State of Himachal Pradesh, Crimial Appeal No. 1232 of 2018, DOD 28.09.2018.
53. This contention of the Ld. Defence Counsel is also not tenable as it is not a case where prosecution has solely relied upon the testimony of complainant/PW3 Ashwani but the case of prosecution is also based upon the testimony of two eye witnesses PW4 Manish and PW5 Deepak who have also identified accused Badal as one of the assailants. PW3 Ashwani could have given some explanation to the effect that the third unknown person was accused Badal but he was not confronted with his statement recorded u/s.161 CrPC. Since, accused Badal has been arrested at the instance and on the identification of PW3 and PW3 has also correctly identified him in the court, so the said portion of the complaint that the third person was an unknown person cannot be read in evidence until and unless it is confronted. Moreover, IO has not Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 46/55 been crossexamined on the aspect as to how PW3 Ashwani identified accused Badal as he had mentioned in the complaint that the third person was an unknown person. Since, the identity of accused Badal has been duly established by all the three witnesses, his presence and involvement has also been duly proved by the prosecution beyond reasonable doubt. Moreover, as per statement of PW3, PW4 and PW5, accused Badal was having katta in his possession which was later on recovered from him which further corroborates the prosecution story. Accused Badal has not given any explanation with respect to katta recovered from his possession as burden u/s.106 Evidence Act lies upon him as it was within his specific knowledge. Nonexplanation regarding recovery of katta further strengthens the case of prosecution. The judgment relied upon by Ld. Counsels is not applicable to the facts of the present case.
54. In view of above discussion, it has come on record that it was accused Deepak who had fired upon PW3 as a result of which, he fell down on the road and sustained injuries on his back and left hand. He has given graphic description of the entire incident. His presence on the spot cannot be doubted as he got injured in the incident. His deposition must be given due weightage. His deposition also stood corroborated by the evidence of PW4 and PW5 who deposed on the lines of the Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 47/55 prosecution case. PW3, PW4 and PW5 have been extensively crossexamined by the accused persons but nothing could be extracted from their crossexamination to discredit their testimony. The contradictions and discrepancies pointed out by ld. Defence counsels in their written submissions are minor in nature and do not affect the prosecution case. The deposition so made cannot be brushed aside merely because there have been some trivial contradictions or discrepancies. It is settled law that minor contradictions and inconsistencies on trivial matter which do not affect the core of the prosecution case, should not remain a ground on which prosecution evidence can be rejected in its entirety.
55. It has been held by Hon'ble Supreme Court in judgment titled as Bharwada Bhoginbhai Hirjibhai V. State of Gujarat, 1983 AIR 753 DOJ 24.05.1983 that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses.
56. Coming to the defence of accused persons, accused Ashish and Deepak have taken the plea of alibi and to prove their defence, accused Ashish has examined DW1 Naresh, DW2 Bina and he himself appeared as DW3 and accused Deepak has examined PW4 Rakesh. The defence of accused Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 48/55 Deepak and Ashish that they have been falsely implicated by police does not appear to be true and convincing. The accused persons have not proved on record any application moved before any senior officer about their false implication in the present case. Therefore, there is no force in the contention of Ld. Counsels for accused that accused have been falsely implicated in this case. Nothing has come on record to discredit the testimony of PW3, PW4 and PW5 so as to make them unreliable. The contention of Ld. Counsel regarding false implication of accused persons is liable to be rejected as the testimony of PW3 is corroborated by other material evidence on record including medical evidence.
57. Therefore, in view of above discussion, it has been established on record that accused persons came on motorcycle and accused Deepak had fired upon the complainant/PW3 and Badal had fired upon PW5 Deepak.
58. Now it is to be seen whether the offence under Section 307 IPC is made out or not against the accused persons.
59. Section 307 IPC relates to attempt to murder which reads as under :
" Whoever does any act with such intention or knowledge Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 49/55 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 yeas, 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 herein before mentioned."
60. Before the court can hold that the act committed by accused persons amounts to attempt to murder or attempt to commit culpable homicide, it should be satisfied that the act was committed with such intention or knowledge under such circumstances that if it had caused death, it would have amounted, in one case, to murder and in another case, to culpable homicide not amounting to murder.
61. The question of intention to kill or the knowledge of the death in terms of section 307 IPC is a question of fact and not of law and it would depend on the facts of the given case. As such, the intention and knowledge are the matters of inference from totality of facts and circumstances of a case. The nature of the weapon used, the manner in which it is used, motive behind the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 50/55
62. It is settled law that an intention coupled with some overt act is sufficient to justify a conviction under Section 307 IPC. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.
63. In view of the law laid down in Sarju Prasad Vs State of Bihar, AIR 1965 SC 843, the burden is upon the prosecution to establish that the intention of the accused in causing injury is of any of the three kinds referred to in section 300 IPC. For, unless the prosecution discharges the burden, the offence u/s 307 IPC cannot possibly be brought home to the accused. The state of the accused's mind has to be deduced from the surrounding circumstances.
64. In the judgment titled as State of MP V. Kashi Ram & Ors., 2009 AIR (SC) 1642, the Hon'ble Supreme Court has observed that whether there was intention to kill or knowledge that death will be caused, is a question of fact and would depend on the facts of a given case. The determinative question is intention or knowledge, as the case may be and not the nature of injury.
65. The onus was on the prosecution to prove that either the Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 51/55 accused persons had the intention to kill PW3, PW4 and PW5 or they had the knowledge that their act was so imminently dangerous that it could result in the death of these three witnesses. Now it is to be seen whether accused persons had the intention to cause death of PW3, PW4 and PW5 or whether the evidence on record and the circumstances of this case attribute the "knowledge" of the accused persons that they have committed an act which was so imminently dangerous which could have been resulted in the death of these three witnesses.
66. It has come on record that accused Ashish told other accused persons that "Aaj inka kaam kar do". It shows that the accused persons had intention to kill PW3, PW4 and PW5 which is clearly reflected from the above said words uttered by accused Ashish prior to the attack and the act of the accused persons was of such nature so as to invoke Section 307 IPC. As per the testimony of PW3, accused Deepak and Badal had fired upon him and his friend Deepak. Keeping in view the nature of weapon used in the commission of offence, the manner in which, it was used, I hold that the prosecution has been able to prove the requisite intent and knowledge of the accused persons and they are held guilty of the offence punishable u/s 307 IPC.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 52/55
67. As far as charge u/s 25 of Arms Act against accused Deepak and accused Badal is concerned, as discussed above, the recovery of country made pistol and empty cartridge (Ex.P4 Collectively) and another country made pistol and one live cartridge (Ex.P5) have been duly proved by the prosecution witnesses in accordance with law. PW3, PW11, PW13, PW14 and PW16 have stated in their testimonies that one country made pistol along with empty cartridge was recovered from the possession of accused Deepak and one country made pistol along with one live cartridge was recovered from accused Badal in their presence. PW16, after measuring the weapons, prepared the sketch of pistols along with cartridges as Ex.PW3/E and Ex.PW3/F and seized the same vide seizure memo Ex.PW3/G and Ex.PW3/H. The contention of Ld. Defence Counsels with regard to recovery of pistols being doubtful, is liable to be rejected, as apart from minor contradictions, there is no discrepancy in the evidence of recovery witnesses. All the relevant witnesses have deposed on the lines of prosecution case that the pistols Ex.P4 and Ex.P5 were recovered from accused Deepak and Badal. Hence, accused Deepak and Badal are convicted for the offence punishable u/s 25 of the Arms Act.
68. As far as charge under section 27 of Arms Act qua accused Deepak is concerned, PW3, PW4 and PW5 have Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 53/55 clearly stated in their testimonies that accused Deepak was having katta in his hand and he had fired on PW3 Ashwani due to which he fell on the ground and received injuries on his back and left shoulder. Ld. Counsel for accused persons have argued that the alleged weapon was not used by accused Deepak as no cartridge has been recovered from the spot. The contention of Ld. Defence Counsels with regard to use of pistol being doubtful is liable to be rejected, as the perusal of testimony of material witnesses shows that there are no contradictions in the statements regarding use of pistol by accused Deepak. All the relevant witnesses have deposed on the lines of prosecution case. Hence, accused Deepak is convicted for the offence punishable u/s 27 of the Arms Act. It is pertinent to mention herein that accused Badal has not been charged under Section 27 of the Arms Act, so he is not convicted under the said section.
69. Considering the role played by accused persons, the manner and circumstances under which the offence has been committed, there is no scope of doubt that accused persons were sharing common intention to commit the death of PW3, PW4 and PW5.
70. In view of the above discussion, all the accused persons are convicted for the offence under Section 307/34 IPC and Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 54/55 accused Deepak and Badal are also convicted for the offence punishable under Section 25 of Arms Act and accused Deepak is convicted under Section 27 Arms Act.
71. Let the convicts be heard on the quantum of sentence.
RAJ Digitally signed
by RAJ RANI
Date:
RANI 2019.06.10
14:53:49 +0530
Announced in the open court (Raj Rani)
th
on 28 May 2019 Addl. Sessions Judge04(NorthWest)
Rohini Courts, Delhi.
Sate Vs Ashish Kumar and ors. FIR No.526/11 PS Sultan Puri page no. 55/55