Delhi District Court
State vs . Vijay Kumar Sharma on 1 February, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 82/2011
Unique Case ID No.: 02404R0339002009
State Vs. Vijay Kumar Sharma
S/o Sh. Jomdar Sharma
R/o J213, Shivaji Marg,
Kartar Nagar, Hotel Wali Gali,
New Usmanpur, Delhi
(Acquitted)
FIR No.: 285/07
Police Station: Model Town
Under Section: 307/506 Indian Penal Code
Date of committal to sessions court: 20.2.2010
Date on which orders were reserved: 18.1.2012
Date on which judgment announced: 1.2.2012
JUDGMENT:
As per allegations, on 25.4.2007 at 2:15 PM at A222, CC Colony on an open road the accused Sanjay Kumar fired by his rifle on the person of Rahul Chopra, Ankit Gupta and Jasdharam Singh with intention to cause their death. Further, it is alleged that the accused also criminally intimidated the complainant Rahul Chopra and his friends Ankit Gupta and Jasdharam Singh by threatening them to kill. St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 1 of 24 BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 25.4.2007 DD No. 44B regarding trespassing in the house bearing no. A22, CC Colony, Delhi was received in the Police Station Model Town pursuant to which HC Raj Kumar reached the spot and made inquiries. In the meantime, ASI Ranbir Singh and Addl. SHO also reached there since they were having information regarding firing of shot on a boy vide DD No. 45B. Addl. SHO directed ASI Ranbir Singh to make inquiries after which one student namely Rahuk Chopra met him and informed the police that he was doing his Matriculation through Open Schooling and was appearing in his examination in Sarvodaya Vidalya, CC Colony, Delhi along with his friends Ankit Gupta and Jasdharam Singh. He further informed the police that on 25.4.2007 the paper was of Computers and was to start at 2:30 PM and while they were present outside the school under a tree near boundary wall, one security guard Sanjay Kumar (whose name they came to know later on) came there and asked them to vacate the area and started misbehaving with them. According to Rahul Chopra some hot words were exchanged between them and the security guard on which the accused threatened to kill them and thereafter Vijay Kumar went inside the Kothi No. A22, CC Colony and brought out a rifle and pointed out towards them. He further told the police that he caught the barrel of the rifle and moved it in upward direction and took his rifle and went inside the house and loaded the rifle on which they all ran away St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 2 of 24 from the spot but the accused fired on them. Rahul Chopra also informed the police that they all immediately entered in the school and after finishing their exam they came out from the school and made a call on 100 number.
On the basis of the statement of Rahul Chopra the present case was got registered and the accused Vijay Kumar was arrested. After completion of investigations charge sheet was filed against the accused Vijay Kumar under Section 307/506 IPC.
CHARGE:
The Ld. Predecessor of this Court has settled the charges under Sections 307/506 Indian Penal Code against the accused Vijay Kumar to which he pleaded not guilty and claimed trial. EVIDENCE:
In order to prove its case the prosecution has examined as many as seven witnesses as under:
Complainant/ public witnesses:
PW1 Ankit Gupta is the friend of the complainant Rahul Chopra and is an eye witness to the incident. He has deposed that at the time of incident he was studying in the school in 10th standard and on 28.03.2007, he had gone to his school for his examination and prior to St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 3 of 24 the examination, he was standing outside the school namely Sarvodaya Vidyalaya, C.C. Colony, Rana Pratap Bagh, Delhi. According to the witness, his friends Rahul Chopra and Dharam Singh were also present there under a tree near a boundary wall at about 2:05 PM when a Guard came there and instructed them to leave the place on which they told him that their paper was going to start within ten minutes on which some altercation took place and the Guard pushed Rahul Chopra on which Rahul fell down on him (witness) after which a scuffle took place between Rahul and that Guard. According to him, the guard ran away towards the Kothi No. A22, C.C. Colony, Rana Pratap Bagh and brought a rifle from the Kothi and pointed out on the forehead of Rahul on which Rahul caught the barrel of the gun and pushed it towards the sky. He has further deposed that thereafter the Guard snatched the rifle and again went to the Kothi and loaded it and fired towards their side on which they immediately got down and ran away inside the school. The witness has also deposed that after completing the exam, they left the school at about 5.30 PM when Rahul made a call to the police. He has testified that police reached the spot and took them to Police Station Model Town and recorded their statements. He has correctly identified the accused Vijay Kumar as well as the case property i.e. the rifle which is Ex.P1.
In his cross examination by the Ld. Defence Counsel the witness has deposed that at the time of incident no other person was present except him and his two friends nor there is any shop near the St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 4 of 24 place of incident nor it is a residential area. He has further deposed that they were sitting under a tree on the bike near the wall of about ten feet high and the guard was present at a distance of twenty feet away from them. According to him, at the time of firing he was present by the side of guard and since Rahul and Jasdharam Singh were running and he could not run away from the spot, the guard pointed out towards Rahul and Jasdharam and fired. He has testified that Rahul and Jasdharam were running towards the main gate of the school. According to PW1, one another friend Karan was coming from the opposite direction and if he would not have ducked, the bullet would have hit his head. The witness has stated that he is not sure whether the bullet hit the iron gate or the wall or otherwise. He has further stated that due to his ill health he could not run and became perplexed and hid himself behind the bike. According to him, he came out from the school after finishing his paper at about 5.30 PM and both his friends also completed the exam but their examnation rooms were separate. He has testified that when he came out from the school, he found Jasdharam Singh already present there and then Rahul came out after five to ten minutes and thereafter Rahul called the PCR van in his presence at about 5.40 PM and police reached at the spot within five minutes. The witness has also deposed that when accused brought the loaded rifle, his friends ran away and he hid himself behind the bike and then accused fired towards his friend. He has denied that there was no intention of the accused to fire upon him or his friends St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 5 of 24 and that no incident of firing took place in his presence.
PW3 Rahul Chopra is the complainant who has deposed that on 25.04.2007 he was appearing in the exams of computer paper through open school of 10th class and on that day, his center was C.C. Colony Sarvodaya Vidyalaya School and paper was to be start at 2.30 PM. According to the witness, on that day he along with his friend Ankit Gupta and Jasdharam Singh were present on a bike outside the school and they were revising their course syllabus when in the meantime security guard Vijay whom he identified in the court, came there and asked them to vacate the area and misbehaving with them. The witness has stated that they told Vijay that there paper was to start at 2.30 PM and then they would leave the area but in the meantime, some hot words were exchanged between them and accused Vijay threatened them that he would kill them in case they did not leave. He has testified that thereafter Vijay went in the Kothi No. A22, C.C. Colony and brought a rifle and pointed it towards their side on which he caught hold of the barrel of the rifle and moved it in upward direction. According to PW3, thereafter the accused used force and again took out his rife and went inside the house and loaded the rifle and on seeing him, they all ran away from the spot but the accused fired on them on which they immediately entered in the school. He has deposed that after finishing their exam, they came out from the school and then they made a call on 100 number pursuant to which the police reached the spot and recorded St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 6 of 24 his statement which is Ex.PW3/A. He has proved having shown the place of occurrence to the police on which the police prepared the site plan of the spot. He has further deposed that the bullet shot did not hit any of them but due to scuffle he received some injury on his hands (palm). He has correctly identified the accused Vijay Kumar as well as the case property i.e. the rifle which is Ex.P1.
In cross examination by the Ld. Defence Counsel the witness has deposed that the distance between the gate of the school and the Kothi No. A22, C.C. Colony is about 200250 meters. According to him, the incident occurred at about 2.10 to 2.15 PM and his examination was going to start at 2.30 PM up to 5.00 PM and he called the police at about 3.30 PM. He has admitted that the accused/ guard asked them to leave the place where they were standing and he told him that their examination is going to start at 2.30 PM and would enter in the school within ten to fifteen minutes and would leave. According to the witness, his friends escaped from the accused after scuffle and when the scuffle took place at that time rifle was in the hands of the accused. He has further deposed that accused within one or two minutes went inside the kothi and came out with the loaded rifle. The witness has testified that they remained there and saw that the accused had loaded the rifle and came out from the kothi, after which they ran away. He has admitted that when they started running then accused fired on them but he is unable to tell if the accused fired in the air.
St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 7 of 24 PW4 Jasdharam Singh is also an eye witness to the alleged incident who has deposed that on 25.04.2007 he was appearing in the exams of computer paper through open school of 10th class. According to him, on that day his center was C.C. Colony Sarvodaya Vidyalaya School and paper was to start at 2.30 PM. He has deposed that he along with his friend Ankit Gupta and Rahul were present on a bike outside the school and they were revising their course syllabus. The witness has further deposed that the accused whom he identified in the court, came there and told them to vacate the area and misbehaved with them. The witness has further deposed that they told the accused that their paper is at 2.30 PM and then they would leave the area but in the meantime, some hot words were exchanged between them and accused Vijay who started scuffling with Rahul Chopra. According to PW4, they tried to intervene in the matter but he threatened them stating that he would kill them in case they do not leave after, which he (accused) went in Kothi No. A22, and brought a rifle and pointed towards Rahul. He has also deposed that Rahul caught hold the barrel of rifle and moved it in upward direction on which the accused used force and again took his rife and went inside the house and loaded the rifle and reached the spot. The witness has further deposed that on seeing the accused, they ran away from the spot but the accused fired on them and the bullet passed from near the ear of his friend Ankit. According to PW3, they immediately entered in the school and after finishing the examination, St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 8 of 24 they made a call at 100 Number pursuant to which police reached there and recorded their statements. He has proved that they showed the police the place of occurrence on which they prepared site plan of the spot. He has deposed that due to scuffle Rahul received some injury on his hand (palm) and was was medically examined. He has correctly identified the accused Vijay Kumar as well as the case property i.e. rifle which is Ex.P1.
In his cross examination the witness has deposed that the incident had taken place in between 2.05 PM to 2.15 PM. He has denied that when the accused asked them to leave the place, Rahul talked to accused/ guard in a loud voice. According to the witness, they could not complete their examination and left the school at about 3.00 to 3.05 PM as they were under fear and frightened. He has testified that after the incident they went inside the school for giving examination and just after the incident, Rahul did not go to the doctor for treatment. The witness has also deposed that he could not see the accused while he was firing on them as they were running at that time.
Police/ official witnesses:
PW2 HC Suresh Chand has deposed that on 25.04.2007 he was working as Duty Officer at Police Station Model Town from 5.00 AM to 1.00 AM (midnight) and about 5.27 PM HC Raj Kumar produced rukka sent by ASI Ranvir Singh for registration of FIR on the basis of St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 9 of 24 which he recorded the FIR No. 285/07 under Section 307/506 IPC through computer operator. He has proved the written copy of FIR which Ex.PW2/A and the computer generated copy of FIR which is Ex.PW2/B and also made an endorsement on the rukka which is Ex.PW2/C. He has not been crossexamined by the accused.
PW5 HC Raj Kumar has deposed that on 25.04.2007 he was on emergency duty from 8.00 AM to 8.00 PM at Police Station Model Town and at about 3.09 PM he received DD No. 44B which is Ex.PW5/A in respect of trespassing in house No. A22, C.C. Colony on which he along with home guard Naresh reached the spot. According to him, when he was making inquiries in the meantime, ASI Ranbir and Addl. SHO also reached there who were having information regarding DD No. 45B about the firing on a boy. He has deposed that student Rahul Chopra also reached and ASI Ranbir Singh recorded statement of Rahul Chopra and prepared rukka and handed over the same for registration of the FIR. The witness has testified that he went to the police station and after registration of the FIR he returned back at the spot and handed over a copy of FIR and rukka to the Investigating Officer. He has proved that that empty cartridge was also taken into possession and were sealed with the seal of RS and seized vide memo Ex.PW5/B; Rifle was also turned into a cloth parcel and sealed with the seal of RS and taken into possession vide memo Ex.PW5/C. He has proved that the Investigating Officer had prepared the site plan of the St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 10 of 24 spot after which the accused was arrested vide memo Ex.PW5/D and his personal search was conducted vide memo Ex.PW5/E. According to him, the accused and the complainant were taken to Hindu Rao Hospital for their medical examination after which the accused was confined to lockup and the case property was deposited by the Investigating Officer with the MHCM. The witness has correctly identified the accused Vijay Kumar in the Court as well as the case property i.e. rifle of .315 bore which is Ex.P1 and the empty cartridge which is Ex.P2.
In his cross examination the witness has deposed that he along with Ct. Naresh of Delhi Home Guard reached the spot of incident at about 3.15 PM. He has further deposed that he had told the Investigating Officer in his statement that student Rahul Chopra had also reached the spot and the Addl. SHO/ASI Ranbir recorded the statement in his statement recorded under Section 161Cr.P.C. which is Ex.PW5/X1. He has further deposed that he did not record the statement of any person of his own and only joined the investigation conducted by the ASI Ranbir. He is unable to tell the contents of No. 45B and has stated that he had not carried out any inquiry at the spot since in the meanwhile the senior officers had reached at the spot within five to seven minutes. He has denied the suggestion that accused Vijay Kumar sustained any injuries in the incident and for this reason he was taken to hospital by him and has voluntarily added that accused had not sustained any injuries. He has also denied that no proceedings had taken St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 11 of 24 place in his presence at the spot or that no pulanda of rifle was seized in his presence. He has admitted that site plan does not bear his signature but has denied that he was not present at the spot when the site plan was prepared. The witness has also admitted that the complainant had not sustained any injuries in the incident. According to him, the Investigating Officer prepared the memos and recorded the statement of witnesses in his own handwriting. He has testified that he remained the spot till 8.00 PM along with the accused, complainant Rahul Chopra and ASI Ranbir Singh.
PW6 SI B.D. Pandey has deposed that on 16.03.2008, he was posted at Police Station Model Town and on that day investigation of this case was marked to him. He has proved having collected the file from MHC(R) and having collected the CFSL result from Chandigarh. He has also proved having prepared the challan and filed the same in the court through SHO. He has not been crossexamined by the accused despite opportunity.
PW7 Retired ASI Ranbir is the Investigating Officer of this Court and has deposed that on 25.4.07 he was posted at Police Station Model Town. According to him, on that day he was present in Division No.1 CC Colony and during the patrolling he received information that fire shot incident had taken place in front of A22 CC Colony on which he reached the spot and found HC Raj Kumar and Addl. SHO already present there. He has deposed that on the directions St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 12 of 24 of the SHO, he made inquiries of this case during which complainant Rahul Chopra met him and he recorded his statement which is Ex.PW3/A and prepared a Rukka Ex.PW7/A and handed over the same to HC Raj Kumar who took the same to the police station and got the case registered. The witness has also deposed that he prepared the site plan Ex.PW7/B at the instance of PW3 Rahul Chopra and in the meantime, HC Raj Kumar brought the copy of FIR to the spot. According to him, the accused Vijay Kumar had produced one riffle of .315 bore and one empty cartridge of .315 bore which he sealed and seized after converting the same into pullandas vide seizure memo Ex.PW5/B and Ex.PW5/C. He has proved having interrogated the accused and arrested in this case vide memo Ex.PW5/D and his personal search was also conducted vide memo Ex.PW5/E. He has also proved having recorded the statement of Ankit Gupta and Jasdharam who were also present with Rahul after which the medical examination of Rahul (vide MLC Ex.PW7/C) and medical examination of accused Vijay Kr. Sharma (vide MLC Ex.PW7/D) got conducted. According to the witness the case property was deposited with Malkhana and during the investigation it has transpired that this is a case of attempt to murder due to which reason he added Section 307 IPC in this case. The witness has also deposed that on 19.10.07 after obtaining the permission from DCP Licensing, he purchased five live cartridges for the purpose of St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 13 of 24 sending the same to FSL Chandigarh which were converted into parcel and took into possession vide seizure memo Ex.PW7/E. He has proved that on 25.10.07 he took the exhibits to FSL Chandigarh and the result collected by some other Investigating Officer is Ex.PW7/F. He has correctly identified the accused Vijay Kumar and the case property i.e. rifle which is Ex.P1 and the empty cartridge which is Ex.P2.
In his cross examination by the Ld. Defence Counsel the witness has deposed that he reached the spot at about 3.15 to 3.30 PM on 25.4.2007. According to him, he did not receive any DD regarding the incident from the police station and the only DD was shown to him by HC Raj Kumar at the spot when he reached. He has testified that the second DD was sent to HC Raj Kumar from Police Station by some police person but he does not remember who brought the same because it was directly handed over to HC Raj Kumar and not to him. He also does not recollect the contents of both the DDs and has voluntarily added that in the said DD there was information of firing bullet but he did not remember about the other DD. He has deposed that when he reached at the spot some public persons were present there and HC Raj Kumar, Addl. SHO and accused were also present there and nobody except the above said persons was present there and has voluntarily added that one Constable from Home Guard was also present but he is not aware of his his name. According to the witness, he prepared the site plan at about 4.45 to 5:00 PM on the pointing out of complainant Rahul St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 14 of 24 Chopra after sending the rukka. He has denied the suggestion that no investigation was done by him about the complainant and his friends whether they were students or not and has stated that he had taken the Roll No. of all the three persons i.e. Rahul Chopra, Ankit Gupta and Jasdharam. He has admitted that he did not prepare the seizure memo of taking roll nos. of above three persons. He has denied that he had not put any document/ roll no. on record to prove the fact that complainant Rahul Chopra, Ankit Gupta and Jasdharam were students and after going through the court file the witness stated that there is no such document.
The witness has also admitted that he had not recorded the statement of the Principal of the said school in which the complainant claims to be giving exam but has denied that he had not placed any document on record to prove that Rahul Chopra, Ankit Gupta and Jasdharam were appearing for examination on 25.4.07 in the nearby school i.e. Sarvodaya Vidhyalya CC Colony. The Investigating Officer has also admitted that he had not recorded the statement of the neighbours on the residence of A22, CC Colony but has denied that he prepared the case at the instance of SHO and Addl. SHO in connivance with complainant Rahul, Ankit Gupta and Jasdharam, with intention to implicate the accused falsely. PW7 has also denied that Rahul Chopra, Ankit Gupta and Jasdharam were trying to enter the house i.e. A22, C.C. Colony where the accused was working as security guard or that the accused had prevented the happenings of a crime of dacoity and extortion by the complainant and St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 15 of 24 his friends. According to the witness when he reached at the spot, the complainant and his friends were not present at the spot and they had gone to give their exam and he was informed by HC Raj Kumar that the complainant and his friends have gone to appear in exam in Sarvodaya Vidhyalya. The witness has further stated that he remained at the spot till 8:00 PM and prepared all the documents in the present case in his hand writing till the second Investigating Officer had come. He has admitted that in DD no. 45B it is written that the guard of Sarvodaya Vidhyalaya CC Colony, Gurmandi, RP Bagh had fired on a boy through phone no. 9999052103 and "we are standing at the same place" but he has not investigated or done any other inquiry etc. on DD no. 44B and DD no. 45D. He has admitted that he had not recorded any statement of the accused and has voluntarily stated that he made inquires from the accused but he had not placed any document regarding making inquiries from accused nor he had recorded any disclosure statement of the accused. He has denied that Rahul Chopra had some criminal record or that the grand father of Rahul Chopra was having involvement in the criminal activities of the area. He has admitted that in his statement U/s 161 Cr.P.C. exhibited as Ex.PW7/DA Ankit Gupta stated that in front of the house A22 CC Colony the accused was standing in the booth who asked Jitender Chopra, Ankit Gupta and Jasdharam to go from there and quarrel took place. He has also admitted that in his statement U/s 161 Cr.P.C. exhibited as Ex.PW7/DB, Jasdharam stated that the accused was St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 16 of 24 standing in the booth at A22 CC Colony and asked them to go and on the same the quarrel took place (hathapai). He has also admitted that he had not prepared the sketch of riffle or the cartridge. The witness has deposed that he is not aware of the application submitted by Sh. Sunil Jain the owner of H.No. A 22, CC Colony dated 5.12.06 vide DD No. 37B regarding threatening calls for kidnapping and extortion on phone no. 9811662320 which application is Ex. PW7/DC. He is also not aware of the complaint against Rahul Chopra, Jasdharam and Ankit Gupta for causing intimidation, threat, attempted to cause robbery by snatching riffle and causing injuries to the complainant copy of which complaint is marked as PW7/A and has voluntarily added that it was marked to him. According to the witness, he did not conduct any investigations as regards the complaint marked PW7/A. He has denied that he had not investigated against the complaint marked PW7/A for the purpose to save Rahul Chopra, Ankit Gupta and Jasdharam in connivance and on the instance of above said persons, SHO and Addl. SHO. According to PW7, he has placed the copy of the road certificate on record and has voluntarily added that the copy of the RC remained in Malkhana. He has denied that he had not sent five (round) fired cartridges .315 bore riffle to Chandigarh CFSL but has stated that he himself had gone himself to deposit them at Chandigarh on 25.10.2011. He has denied that the accused is innocent and has been falsely implicated on instance of complainant and SHO. He has also denied that all the documents in the St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 17 of 24 present case have been prepared while sitting in police station and investigation had not been conducted properly and fairly. Statement of the accused/ defence evidence:
After completion of the prosecution evidence, statement of the accused Vijay Kumar has been recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. According to him, he is innocent and has been falsely implicated in this case. He has stated that Rahul Chopra, Jasdharam and Ankit Gupta tried to snatch his rifle due which there was a scuffle and the rifle was fired by them in the said scuffle and they also beaten him. The accused has further stated that he immediately called his employer Mr. Sunil Jain who informed the police vide DD No. 44B dated 25.4.2007 which is Ex.PW5/A and thereafter police came to the spot. He has further deposed that police made inquiries from him for about 45 minutes and later on implicated him in this false case. According to the accused previously also his employer made a complaint to SHO Police Station Model Town since he was received threatening calls of killing him vide DD No. 37B dated 5.12.2006 which is already Ex.PW7/DC. He has stated that he also made complaint vide DD No. 21A dated 4.5.07 against Rahul Chopra, Ankit Gupta and Jasdharam Singh for attempting to commit robbery by snatching rifle and causing injuries to him which complaint is already mark PW7/A. He has stated that he had also filed a St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 18 of 24 complaint case bearing No.483/07 against the above said person which is pending in the court of Sh. Neeraj Gaur, MM, Rohini and is listed for 23.1.2012. He has also stated that he is innocent and had done his duty in trying his best efforts to stop the attempt of robbery and kidnapping by the aforesaid persons and that is why he has been falsely implicated by them.
The accused has examined one witness in his defence i.e. DW1 ASI (Retd.) Ranbir Singh who has proved the DD No. 21A dated 4.56.2007 which is Ex.DW1/A and the copy of the complaint which is Ex.DW1/B. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed on behalf of the accused and the testimonies of the various witnesses examined by the prosecution. My findings are as under:
Firstly it is an admitted case that the accused Vijay Kumar was working as a Security Guard at Kothi No. A22, CC colony, Rana Pratp Bagh, Delhi belonging to one Sunil Jain.
Secondly in so far as the identity of the accused Vijay Kumar is concerned, the complainant Rahul Chopra (PW3) and his friends Ankit Gupta (PW1) and Jasdharam Singh (PW4) have all St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 19 of 24 identified the accused Vijay Kumar in the court as the security guard with whom Rahul Chopra (PW3) had a scuffle.
Thirdly it stands established from DD No. 21A dated 4.5.2007 which is Ex.DW1/A and copy of the complaint which dated 5.12.2006 which is Ex.PW7/D that Sunil Jain had made a complaint to the Joint Commissioner of Police, Dy. Commissioner of Police (North West) and Station House Officer Police Station Model Town to the effect that on 4.12.2006 his wife received threatening call from some gangster of Uttar Pradesh who demanded huge money failing which he would kidnap his daughter. It is pursuant to the same that the accused Vijay Kumar a guard by profession was on duty in the house of Sunil Jain at his house bearing No. A22, CC Colony, Delhi.
Fourthly it is evident that the oral testimonies of Ankit Gupta (PW1), Rahul Chopra (PW3) and Jasdharam Singh (PW4) do not find corroboration from any other source since none of the witnesses including the victim had received any injuries in the said incident. In fact the MLC of Rahul Chopra (PW3) which is Ex.PW7/C shows that there was no external injuries and his body and had been brought to the hospital for custodial checkup. Rather the MLC of the accused Vijay Kumar Sharma which is Ex.PW7/D shows that he had received three injuries over his body i.e. tenderness over right hypothermia; tenderness over left thumb and tenderness over right arm and the nature of the injures has been reported to be simple. Therefore, the aspect of a scuffle St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 20 of 24 between the accused and Rahul Chopra and his friends stands established in which it was the accused who had received injuries.
Fifthly the injuries present on the body of the accused Vijay Kumar speaks for themselves. It is not possible that he could have single handed inflicted any kind of injuries on the complainant and his friends who are all young boys of the age group of 25 years. Rather, the defence of the accused that while he was performing his duty as Security Guard at the residence of Sunil Jain who was already under threat from certain gangsters of Uttar Pradesh, the complainant and his friends were found loitering around the house of Sunil Jain and when he raised an objection they manhandled him, appears to be genuine and plausible more so since Rahul Chopra and Jasdharam Singh have in their testimonies specifically admitted that they did not see the accused firing whereas the version given by Ankit Gupta of the accused firing two shots, one in the air and other at them, is neither alleged nor borne out from record and is a new improved/ version put forward by him for the first time in the Court.
Sixthly the case of the prosecution is that the complainant Rahul Chopra (PW3) and his friends i.e. Ankit Gupta (PW1) and Jasdharam Singh (PW4) had gone to attend their examination of 10th class. However, no document in the form of Hall Ticket/ Roll No. Slip has been placed on record to show that they were present in the area because they had to set for class 10th examination. Moreover, as per DD No. 44B which is Ex.PW5/A the first information received at Police St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 21 of 24 Station was at 3:09 PM with regard to the trespass in house No. A22, CC Colony, Model Town, Delhi. A judicial note can be taken to the effect that the Board examination starts at 2:00 PM or 2:30 PM with the permission to enter the Examination Hall about half an hour before starting of the examination and therefore, the possibility of the complainant and his two friends being trespassers cannot be ruled out.
Lastly no independent witnesses of the area have been joined at the time of the investigations. The incident having taken place in front of House No. A22, CC Colony, Model Town and it was therefore easy to join the owner of the said premises who it appears has been deliberately not joined in an attempt to conceal the actual incident which might have occurred. Had the owners or the residents of the area been joined they were the best witnesses who could have proved what actually transpired at the spot for which an adverse inference is liable to be drawn, also because the version/ crosscomplaint given by the accused has not been inquired into at all.
FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 22 of 24 The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case it is evident that the identity of the accused Vijay Kumar stands established. It stands established that on 25.4.2007 the accused Vijay Kumar was working as a Security Guard at the house of Sunil Jain at A22, CC Colony, Model Town, Delhi. It also stands established that a scuffle had taken place between the accused Vijay Kumar and complainant Rahul Chopra. It has been established that the complainant Rahul Chopra and his friends Ankit Gupta and Jasdharam Singh had not received any injuries and it was in fact the accused Vijay Kumar who received three injuries.
St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 23 of 24 However, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The material brought on record by the prosecution are insufficient to hold that the accused Vijay Kumar was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Vijay Kumar Sharma. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Vijay Kumar, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 307/506 Indian Penal Code. His surety stands discharged as per rules.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 1.2.2012 ASJII(NW)/ ROHINI St. Vs. Vijay Kumar, FIR no. 285/07, PS Model Town Page No. 24 of 24