Delhi District Court
-1- State vs . Vicky Makan on 15 December, 2009
-1- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 16/3/09
State
Versus
1- Vicky Makan S/o Late Ram Avtar,
R/o House No. B-291,
Sudarshan Park, New Delhi.
2- Madan Lal S/o Hira Nand,
R/o 6/34A, Moti Nagar,
New Delhi.
(i)Case arising out of FIR No. 270/2007
U/S: 302/34 IPC
P.S. Moti Nagar
(ii) Date of FIR 12/04/07
(iii) Date of Institution 16/08/07
(iv) Date of Final Arguments 27/11/09
(v) Judgment reserved on 27/11/09
(iv) Date of judgment 30/11/09
JUDGMENT
On 12.4.07, DD No. 82B was received in the P.S. Moti Nagar. On assignment of said daily diary, SI Ashutosh Kumar alongwith Ct. Ranbir reached at a house 1/28 A Moti Nagar, where SI Ashutosh Kumar came to know that one person was shot his name revealed Jagdish Lal Sachdeva and was already removed to Kalra Hospital. Leaving constable Ranbir there he Contd..........
-2- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar reached at Kalra Hospital where Jagdish Lal Sachdeva found admitted. He recorded statement of Jagdish Lal Sachdeva which is PW7/8 same is attested by him at point X and prepared rukka Ex. PW18/A which bears his signatures at point A. Thereafter SI Ashutosh Kumar alongwith Sachin Sachdeva son of injured came to the spot. He inspected the spot and sent a Rukka through constable Ranbir to PS Moti Nagar for registration of the FIR. He also prepared site plan Ex. PW18/B and at the spot found one empty cartridge which was sealed in a pulanda with the seal of SR and seized vide seizure memo Ex. PW17/A. He again came to the hospital and recorded statement of Sachin, his wife Isha and his uncle Kewal Krishan. The name of two persons namely Vicky Makan and Madan Lal Kabadi were named by injured in his statement Ex. PW7/A and he had also suspected one Anil Kapoor and Raju Karnal. On 13.4.07, he also seized pulanda prepared by the doctor vide seizure memo Ex. PW17/B and deposited in the malkhana. Thereafter he came to know that the injured was expired and investiation was handed over to Insp. J.S. Joon.
According to the statement of Insp. J.S. Joon on 14.04.2007, he received investigation of this case, postmortem of the dead body of deceased was conducted at DDU Hospital. The doctor who conducted the postmortem also given pullanda of the sealed blood gouge alongwith sample seal which was seized vide Memo PW 10/A. The dead body was handed over to the Contd..........
-3- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar relatives of the deceased. He recorded statement of Sachin Sachdeva and Kewal Krishan. During investigation, it was revealed that deceased had a dispute with Vicky Makan and Madan Lal regarding shop which a preventive Kalandra proceedings u/s 107/150 Cr.P.C were done, he obtained the photocopy of the Kalandra and seized vide seizure memo PW5/B. The copies of the Kalandra are Ex. PW4/A and PW14/A. He also seized the photocopy of complaint made by deceased Jagdish Lal vide seizure memo PW11/A. Thereafter on 20.04.2007 Insp. J.S. Joon, arrested accused Vicky Makan and Madan Lal and their personal search was conducted vide memos Ex. PW10/B to Ex. PW10/E. Two days police custody remand of the accused persons was obtained, but no recovery of weapon i.e. revolver could be effected. IO also recorded disclosure statement of accused Madan Lal Ex. PW 13/A. Witness Sachin had produced certified copies of the case filed in the Hon'ble High Court which were consisting 16 pages, same was seized vide seizure memo Ex. PW 7/C. Thereafter Insp. J.S. Joon alongwith SI Ashutosh visited the place of incident and at his instance draftsman took the measurement and the note down for the preparation of scaled site plan, which he collected and placed on file. He also examined the witnesses and after completion of investigation challan was sent to the court for trial.
Contd..........
-4- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar A prima facie view has been taken to frame charge against both the accused persons, namely Vicky Makan and Madan Lal, as such charge u/s 302/34 IPC was framed vide order dated 9.1.2008.
In order to brought home the guilt of the accused persons, prosecution cited in the list of witnesses twenty witnesses and almost all of them are examined. On conclusion of the evidence, the statement of accused persons u/s 313 Cr.PC recorded. The accused persons taken the plea of innocence and falsely implication in this case.
PW7 Sachin Sachdeva son of the deceased proved the statement of deceased Jagdish Chand Sachdeva vide Ex. PW7/A while stating that on 11.4.2007 at about 11.30 or 11.45 pm, he was present in his house at second floor alongwith his wife Isha Sachdeva, daughter and sister Puja Sachdeva. His father was in the staircase and he called him loudly by nick name Tinka. On hearing the call of his father, he rushed to first floor in the staircase. His wife was also followed him. His father told him that he received bullet injury. He saw injury on his right hip and blood was coming out. He helped his father and brought him to the ground floor. He took out his car and removed him to Kalra Hospital. His uncle Kewal Krishan and his wife were also with him in the case. Before, he started from his house, he had informed PCR van, which met them on the way and told to come to Kalra Hospital. On the way his father told them that Madan Lal and Vicky shot him. His Contd..........
-5- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar father also told them that when he had climbed fourth or fifth step of staircase the aforesaid persons shot him and ran away. Madan Lal and Vicky Makan had their shops below their house. When they started construction of their house, it was demolished by MCD being unauthorized. Thereafter his father approached Delhi High Court that the shops in possession of Madan Lal and Vicky Makan should also be demolished being unauthorized and after a gap of six seven months the shops in occupation of both Madan Lal and Vicky Makan were also demolished. Police met them at Kalra Hospital and statement of his father which bears his father signatures at point A, was recorded in the hospital in his presence vide Ex. PW7/A. Thereafter police came to his house, saw the place of occurrence i.e. staircase. His father died on 13.4.2007. He identified dead body of his father Jagdish Lal Sachdeva at Mortuary on 14.4.2007 and his statement Ex. PW7/B was recorded to this effect. It is further stated that both the accused alongwith their relatives used to pick up frequent quarrels on the issue of demolition of their shops. He handed over the copy of the complaint to the police filed by his fat her against the accused persons which are mark X and also handed of the correspondence receipts from the concerned authorities collectively as marked Z and also handed over certified copy of PIL N. 4252/06 Mark Z-1. These documents were seized vide seizure memo Ex. PW7/C. Contd..........
-6- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar Apart from statement of PW7 Sachin Sachdeva, statement of PW1 Isha Sachdeva, PW8 Kewal Krishan also recorded. PW8 Kewal Kishan did not support the case of the prosecution while stating that he did not receive any information on the way at Kalra Hospital as to how Jagdish Lal received bullet injury, however, when they reached Kalra Hospital and when Jagdish Lal was being examined by the doctors in the presence of police officers including SHO, Jagdish Lal told that he was shot by Anil Kumar @ Raju. Suggestion made in the cross examination of the APP for State to PW8 Kewal Kishan have been denied.
PW1 Isha Sachdeva stated that on the way to hospital in a car, her father in law told them that when he was climbing stair case he received gun shot injury. He turned back and saw three people running away, two of them were Vicky Makan and Madan Lal Kabari.
PW15 Dr. Uday Nath Sahi proved MLC Ex. PW15/A and exhibited vide report Ex. PW15/B and diagnosed as "gun shot injury"
with multiple small and large bowel perforation, cause of death was recurrent V.T./Cardiac Asystole. The doctor V.J. Anand examined the deceased in the casualty and prepared the report. He handed over the sealed pullanda which was seized vide memo Ex. PW15/C. In cross examination it is admitted that hip of the body is not a vital part which would be veins and major arteries passing from it , it damages can become fatal.
Contd..........
-7- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
PW16 Dr. Anil Shandil conducted the post mortem on
14.10.2007 on the dead body of deceased Jagdish Lal Sachdeva, aged 55 years male who was having alleged history of gun shot injury vide postmortem report Ex. PW16/A and opined the cause of death as is haemerrhogiaic shock from multiple small and large bowel perforations, hemoperitorium, peritonitis with cumulative effect of injury sustained resulting from projectile fire arm weapon.
The other witness are police witnesses who testified regarding the investigation, recording of statement witness and preparation of the documents. After completion of the prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded and when all the incriminating evidence come on record put to both the accused, they denied the same with the submission that they are innocent and falsely implicated in this case. Accused Vicky Makan wanted to lead defence evidence.
In defence accused Vickey Makan examined himself and tender the copies of the record of seven FIRs against deceased Jagdish Lal Sachdeva and in the cross examination by Ld. APP it is admitted that the copies of the FIR are not the certified copies of the record and original FIR is not produced. The record of the FIR has been obtained by his brother as supplied information officer vide letter NO. 5541 dated 13.8.09.
Contd..........
-8- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar Having regard to the submission made by Ld. APP for State, counsel for accused persons and material on record as well as the authorities cited by them.
Ld. APP for State argued that the prosecution proved its case against the accused persons beyond all reasonable doubts and testimony of PW7 Sachin Sachdeva is being corroborated with the testimony of PW1 Isha Sachdeva. Both the witnesses have testified that the deceased while taking to the Kalra Hospital have give the name of both the accused persons, apart from two other suspects names. The statement of the injured was recorded by SI Ashutosh Kumar in the hospital vide Ex. PW7/A. The deceased Jagdish Lal stated vide Ex. PW7/A as under:
" -------Mai Apne Makan Ki Uppar Ki Sedio Se Chad Raha Tha To Char Sidi Chadne Ke Bad Mujhe Peechhe Se Dahine Kulhe par Goli Mari, Ye Bat Samay Karib 11.15 Baje Rat Ki Hai, Jo Maini Bhagte Huye Pechhe Se Teen Admiyo Ko Dekha Jinko Mai Pehchanta Hun Jisme Ek Vicky Makan, Madan Lal Kabari Ewam Tisere Ko Samne Aane Par Pehchan Sakta Hun. Ho Sakta Hai ki wah Anil Kapoor Ho, Jo Raju Karnal Wa Anil Kapoor Ne Pahle Bhi Jan Se Marne Ki Dhamki Dee Thee......." The statement of deceased have been corroborated by the testimony of PW1 Isha Sachdeva and PW7 Sachin Sachdeva. The injuries as Contd..........
-9- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar sustained has been corroborated by PW15 Dr. Udai Nath Sahi who proved the MLC and PW16 Dr. Anil Shandil who conducted the postmortem, opined the cause of death due to "Haemerrhogaic shock from multiple small and large bowel perforations, hemoperitorium, peritionities with cumulative effect of injury sustained resulting from projectile fire arm weapon." PW18 SI Ashutosh Kumar and PW19 Insp. J.S. Joon have conducted the investigation and having deposed regarding the investigation as carried on by them and prepared the document during the course of investigation which has been duly proved by exhibiting the same. There is no inherent defect in the investigation except the minor error here and there. The previous conducted of the deceased and having any criminal background does not effect the merit of the case. It is a mater of record that deceased having apprehension of threats of his life and found eminent danger from the hands of the accused persons including Anil Kapoor and Raju Karnail. He made several complaint to the police to this effect and also a Kalandra u/s 107/150 Cr.PC was prepared against the accused persons. Deceased filed a writ petition in High Court for demolishing the unauthorized construction which has been done by the accused persons adjoining to the premises of the deceased by encroaching upon the Government land and by the order of Hon'ble High court, the shop Contd..........
-10- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar in question were demolished by Municipal Corporation resulted which inimical terms germane between the deceased and assailants and the accused persons have also bearing grudge against the deceased. Therefore, motive to hurt and cause serious injuries on the persons of deceased cannot be ruled out. It is matter of record that there are certain contradiction and inconsistency but it is also matter of fact that deceased was died due to the bullet injuries. Empty cartridge was also found at the spot. PW Sachin and Isha have denied the suggestion made in their cross examination. It is denied that deceased has not named any person whom he had seen running and because of past history of the demolishing and on imagination the name of the Madan Lal and Vicky Makan has been mentioned by them in their later statement. It is also denied that Sachin Sachdeva knows the accused persons as assailants of his father assassination and the said information was attributed to the deceased too. It is also denied that his father did not give statement in his presence to the police. It is further submitted by Ld. APP that the evidence led by prosecution are inspire confidence, they are believable, trustworthy and corroborative. Therefore, the accused persons are liable to be convicted as per the charges framed against them.
Ld. Counsel for the accused Vicky Makan submitted that the deceased was Bed Character of the area and have number of enemies, it may Contd..........
-11- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar be possible that anyone of them committed his murder, it cannot taken as a relevant fact in the absence of any other corroborative piece of evidence. The dying declaration must be read over and explained and this fact must be clearly mentioned in the dying declaration. SI did not obtain the certificate of fitness from doctor concerned who examined the deceased. The next contention is that there are contradiction, omissions, inconsistencies, exaggeration or embellishments among the statements of prosecution witnesses. The investigation carried out is a tardy investigation which fatal the case of the prosecution . It is also contended that the secret information is inadmissible unless and until and provider of such is examined in the court. The next contention of Ld. Counsel that the injuries of bullet was on the hip of the deceased which is not a vital part and the deceased was died next day and if not died soon after giving the statement there was sufficient opportunity with the Investigating Officer to get recorded another statement of the deceased from the SDM , Gazetted Officer or from the doctor therefore, the lessor weight be given to the statement Ex. PW7/A. The statement given by deceased is not in the question answer form. The statement was completed when it was read over and admitted as correct i.e. RO&AC. The incident was taken place at 11.15 am and the statement recorded much later on as such there was sufficient time to be tutted to the deceased or every likelihood of tampering of the statement Ex. PW7/A. The Contd..........
-12- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar statement of Jagdish Lal Sachdeva Ex. PW7/A deposed that he had seen from the backside of three persons and the portion A to A last line is alleged to be inserted. The weapon of offence was not recovered from the place of incident nor at the instance of the accused persons. The bullet as recovered from the body of the deceased and the empty cartridge recovered from the spot was also not sent to the FSL for a chemical examination or for expert opinion. Neither the said bullet were sent to doctor who examined the patient for his expert opinion as to corroborate with the the nature of injures. Ms. Puja, the daughter of the deceased admitted the injured/deceased in the hospital but she was neither cited as witness nor examined or joined in the investigation despite the fact that the name of the Pooja was mentioned in the death summery Ex. PW15/A and MLC Ex. PW15/B. The deceased might have killed by his son Sachin Sachdeva as there is intersee rivalry between them with respect to the property dispute. The Kalandra also pending before the Executive Magistrate (ACP) between deceased and his son Sachin Sachdeva. This fact is also being corroborated by PW5 and the Insp. J.S. Joon (PW19). The accused Vicky Mohan was arrested on 20.4.2007 after eight days of the incident but there is no judicial TIP was conducted from the Isha Sachdeva and Sachin Sachdeva. The identify of the accused Vicky Mohan is not being established. PW8 Kewal Kishan, real brother of the deceased Jagdish Lal did not support the case of the Contd..........
-13- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
prosecution , he was declared hostile by APP for State and in cross
examination by APP, this fact is denied that Jagdish Lal told him that he was shot by Vicky Makan and Madan Lal. As such the accused Vicky Makan is liable to be acquitted from the charge levelled against him. Ld. Counsel has also relied upon certain case i.e. 2001(92) DLT641, 2007(2)JCC 1636, 2007(11)SCC269 , 2008 (3) SCC 691, 2008(4) SCC 265 , 1973 SCC(CRI) 366, 2009 (2) JCC 1501, (12)SCC 758, 2007 (9) SCC513 2006(2) JCC 83, and 1883 CRI. L.J. 1276.
Ld. Counsel for accused Madan Lal submitted that there are contradiction between the statement of PW1 Isha Sachdeva and PW7 Sachin Sachdeva and PW7/A. The shop of the accused persons were demolish by the MCD three years prior to this incident. The incident took place at about 11.15 pm and deceased was shifted to hospital at about 11.45 pm by his son. At the time of admission the deceased Jagdish Lal Sachdeva was fully conscious and well oriented . PW1 Isha Sachdeva told that his father in law himself told his name after name , address and age as she also accompanied with her father in law and deceased also told as to how he received the injury by gun shot on hip. PW7 Sachin Sachdeva who got recorded statement to the police as his father told him that he shot by Madan Lal Kabari and Vicky Makan which is not being corroborated in Ex.
Contd..........
-14- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar PW7/DA. It is also not recorded in statement dated 12.5.2007 that the accused persons have caused assaulted bullet injuries to his father. DD No. 32B Dated 11.4.2007 received information from the PCR in P.S. Moti Nagar that ......... Ek Admi Ko Goli Lagi Hai..." The name of accused persons name of the injured, place and time of the incident is not given. The DD No. 64B dated 13.4.2007 received at 4.30 pm in P.S. Moti Nagar that the Jagdish Lal Sachdeva expired. As per Ex. PW15/B MLC of the deceased, he was admitted in Kalra Hospital on 11.4.2007 at 11.55 pm and was expired on 13.4.2007 at 3.30 pm. There was delay to inform to the concerned PS about the admission and death of the deceased and there is no explanation to this effect. As per the story of prosecution the two persons have fired upon the deceased and Ex. PW7/A have mentioned the name of the three persons. Thereafter the name of the fourth person was also inserted in Ex. PW7/A same is manipulation and interpolitin made by the IO in connivance with the family members of the deceased. It is relied upon a case titled as Vinod Samuel vs. Delhi Administration AIR 1992 Supreme Court 465, wherein it has been observed that ".... theft... woman traveling in bus--- snatching of her gold chain-- On her shouts accused chased and caught--
- However no gold chain was recovered from accused-- None of prosecution witnesses had seen a person who snatched Contd..........
-15- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar chain--- Accused entitled to acquittal-- Merely because for some reason, the accused was seen running or walking briskly after incident it does not follow that he was the culprit although a strong suspicion may arise against him.." . Therefore, it is submitted that the accused Madan Lal is liable to be acquitted too also.
In view of the submission of Ld. APP for the State and counsel for the accused persons and the authority cited. The charges levelled against the accused persons u/s 302/34 IPC with the allegation that on 11.4.2007 at about 11.40 pm at a place near H.No. 1/28, Moti Nagar within the jurisdiction of PS Moti Nagar, accused Vicky Makan and Madan Lal in furtherance of their common intention committed murder of Jagdish Lal Sachdeva.
The word Common Intention is a state of mind of an accused which can be inferred objectively from h is conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co accused, it was observed in a case Contd..........
-16- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar titled as Harjit Singh Vs. State of Punjab 2002 SCC (Cri) 1518 and in another case titled as Gupteshwar Nath Vs. State of Bihar AIR 1986 SC 1649: 1986 Cr.LJ 1242 it was observed that "when several persona surrounded the deceased and beat him to death, common intention of all of them for murder can be inferred.". In another case titled Bhola Singh Vs. State of Punjab 1995 CrLJ 1830 (P&H) (DB) it has been observed that "
The fact that both the accused came to the spot together and after committing the murder left the place together would be sufficient to hold that both of them shared the common intention to commit the murder.
First and last dying declaration i.e. statement of deceased Jagdish Lal Sachdeva clearly without any dent , disclosed the name of both the accused persons. Before recording the statement Ex. PW7/A fitness certificate Ex. PW15/B was obtained at 12.05 am on 12.4.2007 and statement of deceased and his signatures was duly attested by SI Ashutosh Kumar.
In the present case the combine act of both the accused are that they came together and left the spot together. In the light of the above observation of the Apex Court ( Supra), PW1 Isha Sachdeva deposed that "
on the way to hospital in car her father in law told them when he was climbing stair case he received gun shot injury. He turned back and saw three people running away, two of them were Vicky Makan and Madan Contd..........
-17- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar Lal Kabari. She knows both of them as both were having shops on the ground floor of their house which were demolished two years back....' and in the cross examination by Defence Counsel, it is further denied that ".... It is wrong to suggest that my father in law had not named any person whom he had seen running and because of the past history of demolition on imagination and impression that the names of Madan Lal and Vicky Maken have been mentioned by us ........".
PW7 Sachin Sachdeva also corroborated the statement of PW1 while stating in his deposition that "........ On the way my father told us that Madan Lal and Vicky shot him. Again said Madan Lal Kabari...." and in the cross examination it is stated that " ....It is wrong to suggest that my father did not disclose any name to us. It is also incorrect to suggest that I had of my own have named the accused as assailant of my father, attributing the said information to my father. There is no cross examination to this witness on behalf of the accused Vicky. PW7 has also proved the statement Ex.PW7/A which has been recorded by the police in his present at Kalra Hospital and in the statement Ex. PW7/A name of the assailant was also mention who are Vicky Makan and Madan Lal Kabari apart from the other suspicious.
Contd..........
-18- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar PW18 SI Ashutosh also stated in his deposition while corroborating the statement of PW7 that the name of Vicky Makan and Madan Lal Kabari was told by the injured and he had also suspected one Anil Kapoor and Raju Karnal. He also recorded the statement of PW1 Isha Sachdeva, PW7 Sachin Sachdeva and PW8 Kewal Kishan. During cross examination of PW18 denied that "... on suspicion and in consultation with the family members of the injured Jagdish Sachdeva names of four suspects were mentioned..... Statement Ex. PW7/a is in my handwriting...... and I wanted to implicate the accused as per dictates of Sachin Sachdeva...". This part of the evidence shows that there was common intention in committing the murder of the deceased Jagdish Lal Sachdeva and this state of affairs clearly constitutes the artifacts of the case in clear terms.
The contention of the defence counsel as regarding that the deceased was a BC of the area and may have number of enemies and possibly that anyone of enemies other than the accused persons might be committed his murder. This contention does not carry any weight in comparison of the substantial corroborative ocular evidence on record as the deceased himself have apprehension of threat of his life and property as he himself filed a writ petition in the High Court for demolition of Contd..........
-19- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar unauthorized shops of the accused persons and also written complaint to the several authorities to this effect PW11 HC Babu Lal in his deposition stated that on 15.7.2007 he was posted as a Reader to SHO Moti Nagar. On that day he handed over the photocopy of six pages of complaint which were the copies of the reports received from the office of the Chief Minister and other agencies which were purported to be sent by Jagdish Lal Sachdeva to those offices. PW4 WSI Kamelsh proved the Kalandra proceeding between Jagdish Lal Sachdeva of one side and Madan Lal, Vicky Makan and Jagdish on other side, these proceeding are collectively Ex. PW4/A. On the enquiry on the complaint, it was revealed that house NO. 28A was belonging to Jagdish Lal Sachdeva, unauthorized construction of the shop was removed by MCD. This construction was comprising the shops which were in the possession of Vicky Makan, Madan Lal and Jagdish. The deceased lodged the complaint against all the three persons since they have a doubt that these shops were got demolished by Jagdish Lal Sachdeva.
Presumption of innocence, one of the cardinal principles which has always to be kept in mind in the administration of criminal justice is that a person arraigned as an accused is presumed to be innocent till he is proved guilty. The burden of proving the accused to be guilty is on the prosecution and unless it relieves of that burden, the court cannot record a finding that the Contd..........
-20- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar accused is guilty. At same time, however, the presumption of innocence should not be carried too far. The dangers of exaggerated devotion to the rule should not be forgotten particularly in the light of escalating crime and escape of criminals. The Eminent Jurist Viscount Simon says that " a miscarriage of justice may arise from the acquittal of the guilty no less from the conviction of the innocent.".
It is matter of fact that both the assailants were having shops in the tenanted premises which belonging to the deceased and deceased filed a writ petition in the Hon'ble High court for demolition of unauthorized construction which was ordered to be demolished by the MCD. Therefore, the accused persons bearing grudge against the deceased. The deceased Jagdish Lal Sachdeva also made complaints for receiving threats of his life from the assailants apart from two other persons. The deceased has also lodged Kalandras proceeding against the accused persons which has been proved by ocular evidence by examining PW4 WSI Kamlesh.
It is well settled that merely because motive is neither alleged nor proved the same would ipso facto not affect the prosecution case but in case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material. When the evidence of eye witness and other circumstances evidence are of unimpeachable variety and Contd..........
-21- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar inspire confidence, absence of motive for murder is immaterial. Even though existence of motive loses significance, where there is reliable ocular testimony. In a case where the ocular testimony appears to be suspect, the existence or absence of motive acquits some significance regarding the probability of the prosecution case. This view is taken in a case titled as Badam Singh V State of Madhya Pradesh AIR 2004 SC 26.
When direct evidence is available motive loses its significance but where motive is established, it provides evidential material to add to the chain of circumstances. Therefore, the proof of motive in a case based on circumstantial evidence strengthens the case of the prosecution. Even if the motive shown by the prosecution may be weak for commission of a grave offence of murder that by itself is not fatal for prosecution case when there is sufficient evidence to prove the offence.
In the present case the evidence on record it has been proved that there was inimical terms between the deceased and both the accused persons and tension were going on with regard to the demolition of the unauthorized construction of the shops. It is also proved by ocular evidence that shops in question were demolished by order of the High Court which was being obtained in view of the writ petition filed by deceased.
In a case titled as Ram Niwas Vs. State, 1996 CrLJ 1764, it has been observed that " When there is direct evidence of an acceptable Contd..........
-22- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar nature regarding commission of an offence, the question of motive cannot loom large in the mind of the court. Motive is generally known to the perpetrator of the crime and is not always known to others. In the present case testimony of two eye witnesses has been found trustworthy. Moreover, it also shown that relations between the accused persons and the deceased were strained which obviously gave rise to the crime. This is one more factor which strengthens the case of the prosecution. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive become more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in the mystery and it is very difficult to locate it. In the present case motive to commit the crime is well established from the circumstantial evidence and the ocular testimony of the prosecution witnesses.
The testimony of the deceased as recorded on Ex. PW7/A, which has been corroborated by deposition of PW1 Isha Sachdeva and PW7 Sachin Sachdeva. Apart from it the person who is author of PW7/A is PW18 SI Ashutosh Kumar who himself stated that the injured have disclosed the name of the accused persons in the commission of the crime with the ulterior motive that they are bearing grudge against the deceased. Since there shops Contd..........
-23- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar was demolished by receiving the order from Hon'ble High Court. Therefore, the circumstances and deposition of the prosecution witnesses which proved the guilt of the accused are however, not weakened at all by this fact that motive is also being established. It happened that culprit also knows what moved him to a certain course of action. It proportionally grave crimes. The accused persons deposed about the mental condition exist as to prove the motive by disclosing in their disclosure statement. However, apart from the motive of the accused persons when it is alleged as proved in the commission of the crime it may not be made discourage and testimony of the prosecution witness.
It is matter of fact that the deceased made several complaints against the accused persons since after demolition of the shops by the MCD. The deceased intend to get vacated the shops from the accused persons, and for that purpose he also filed a writ petition against the assailants. This would certainly developed the unhealthy relationship and tension between the parties. It may be stated that motive is not necessarily relevant factor while considering the culpability of a person charged of the offence. But, since, there is an evidence which as stated earlier is a clinching one, the same is required to be taken into account. This is one of the important factor which strengthens the case of the prosecution. The complicity of the accused persons in this crime is the subject matter to establish the motive to commit Contd..........
-24- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar the crime by them and being established clearly beyond any reasonable doubt. The defence set out by the accused persons are that the deceased was being shot fire by some other person namely Vicky or the Sachin Sachdeva son of the deceased which is not being substantive by any cogent evidence therefore, it is revealed that the accused persons are the real culprit to commit this crime none else. The evidence of the eye witnesses is credit worthy and believed which implicitly reliance on the question that the accused persons have motive against the deceased Jagdish Lal Sachdeva and they are bearing grudge having being strained relations for considering the emotion the culpability of the accused persons for the crime committed.
The contention of the Ld. Defence counsel that the statement recorded by SI Ashutosh to the deceased Jagdish Lal Sachdeva is manipulated and fabricated, this plea, is also unsustainable in law since the deceased in his dying declaration have categorically stated the name of both accused persons apart from two other suspected before recording the statement of deceased. Sub Inspector Ashutosh( PW18) have taken the fitness certificate from the PW15 Dr. Uday Nath Sahi of Kalra Hospital as on Ex. PW15/B whereas doctor made the endorsement that the patient is "fit for recording the statement " at 12.05 am on 12.4.2007.
Legally there is no base for recording dying declaration by the police officials, however, it is safe as well as perfect to get it recorded Contd..........
-25- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar through independent witness or somebody recorded in their presence or attested by the doctor concerned. In this case this course is not followed , the dying declaration requires strict corroboration before it is accepted in evidence. The evidence of the doctor with regard to the state of mind was not challenged and through Ex. PW15/B the fitness of mind to make a statement by Jagdish Lal was also being endorsed by the doctor on Ex. PW15/B. As observed in a case titled as Jaldar @ Jalladin V State of Rajasthan 2004 CrLJ 2574 (Raj): and Pradeep V. State 2004 (1) Kar LJ 314 ( Kant.). In another case titled as Bhagirath Vs. state of Haryana A 1997 SC 234 ,242 : 1997, it was observed that " where the Head Constable, on getting message from doctor that a person with gunshot injuries had been admitted in the hospital, rushed to the hospital and after making entry in the police register and obtaining certificate from the doctor about the condition of the injured, he too statement of the injured for the purpose of registering a case and without having intention to record the statement as dying declaration recorded by the Magistrate but the Magistrate was not available, simply because the doctor did not listen the statement made by the injured, it cannot be held that the statement recorded by the Head constable was unfounded and cannot be relied on .
Herein in the present case deceased has not received any injury on his head reason and doctor also certified him as 'fit for statement ' and he has Contd..........
-26- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar given a cogent, coherent and direct answers to the PW18 SI Ashutosh Kumar, who has recorded the statement. Doctor who prepared the MLC has given a report with regard to the state of mind of injured Jagdish Lal Sachdeva and declared him for fit for statement. The deceased was interrogated by SI Ashutosh Kumar as soon as given the fitness for recording the statement. SI Ashutosh recorded the statement and attested the said statement and duly signed by the deceased at point X on Ex. PW7/A. The signatures at point A is not being denied by any of the witnesses. The PW Isha Sachdeva and PW7 Sachin Sachdeva also admitted that the signatures at point A is belong to the deceased Jagdish Lal Sachdeva. In cross examination of PW1 denied that deceased has not named any person who had seen happening and because of the past history of demolition the name of the accused persons have been mentioned later on. It is also being categorically denied that deceased did not make any statement in their presence to the police. The present statement is first and last statement of the deceased and on the basis of his statement , initially FIR u/s 307/34 IPC was registered. As such for the purpose of recorded the FIR, statement of injured was recorded and Ex. PW7/A was treated as complaint, nobody was aware that the injured would be died after recording of his statement. The person who was at death bed and was fighting with his injuries what was the motive to give false statement and statement recorded by SI Ashutosh Kumar is true and free from any effort to induce the Contd..........
-27- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
deceased and the statement given by deceased is also coherent and
consistent on the material point. The statement of the deceased is being also corroborated with other ocular evidence including the disclosure statement of the accused. The name of the assailants was also mentioned in the initial statement of the complainant i.e. deceased Jagdish Lal Sachdeva which has been proved by the other ocular evidence. The deposition of PW Isha Sachdeva, Sachin Sachdeva, circumstances and the medical evidence which cannot be discarded merely on the ground that said statement was recorded by the police official.
The other contention of Ld. Defence Counsel are that there are several flaw and lacuna in the investigation and also stated that the case of the prosecution cannot be accepted as it is culmination of tardy/tainted investigation. The IO has not investigated the case in accordance with the procedure established by law. The cloths of the deceased was not sent to the FSL for chemical examination. The empty cartridge and the cartridge which has been recovered from the body of the deceased was also not being sent for expert opinion. The weapon of offence i.e. pistol from which fire was being taken is not recovered. Therefore, the question of tallying the empty cartridge with the gun and shot injuries is not being proved.
The fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. To this effect in a case titled Contd..........
-28- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar as State of Maharashtra Vs. Bhaurao 1996 CrLJ 673 (Bom), wherein it was observed that : The Investigating Officer deliberately made no errors to know the genesis and origin of the occurrence. The investigation is far from fair and honesty. The investigating officer has to work up a theory on the clues available but if he finds that there is material which shakes that theory, he must not be adamant to present a pre conceived theory before the court. The Investigating Officer must keep in mind open to collect and verify the facts in a straightforward manner."
It is also a matter of common knowledge that investigating agency sometime fails to carry out the investigation as per norms. In the present case no doubt there are certain lacuna in the investigation. However on the basis of defective evidence the case of the prosecution cannot be rejected which would amount to paying the premium for the faults of an Investigating Officer. It would also amount to playing into the hands of Investigating Officer. It has also time and again observed by superior courts that in case of the defective investigation, the case of the prosecution should be examined dehors, such omission, otherwise the mischief done deliberately would be perpetuated and justice could be denied to the victim.
It is also observed in a case titled as Amiruddin Vs. State (Delhi Administration) 2009 VIII AD (Delhi) 381 in para NO. 18 that "
Contd..........
-29- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar The medical evidence shows the extent of the wound. If the medical evidence is examined, it would show that the gravity of injury was such that the knife pierced deep into the lungs from the back which resulted in the death within a few minutes. The utterance of the appellant before inflicting the knife also shows that the intent was to cause death of the deceased. The deposition of PW22, Dr. Sagar, shows that the injury sustained by the deceased was sufficient to cause death in the ordinary course of nature."
As regarding to the non supporting the case of the prosecution by PW8 Kewal Kishan, brother of the deceased Jagdish Lal, who has declared hostile as he did not support the case of the prosecution however the case of the prosecution cannot be thrown away merely because PW8 Kewal Kishan has not supported the case of the prosecution since the doctrine ' falsus in uno falsus in omnibus' is not attracted against the witness or some of them have not been truthful in regard to some of the accused or part of the prosecution version. In such a case the only requirement of law will be that the testimony of these witnesses in regard to the remaining version or that case against the accused will have to determine whether the statements of the prosecution witnesses or the prosecution version in regard to the accused who have been found to be not involved or against whom the case appears to Contd..........
-30- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar be doubtful could be separated from the case against rest of the accused could withstands more cautions and careful scrutiny. In other words, where truth and falsehood could be separated and court finds the case against the other accused to be convincingly proved beyond reasonable doubt, the would be no illegality in convicting the accused or upholding their conviction. In a case titled as Zwinglee Ariel Vs. State of M.P. AIR 1954 SC 15 wherein it was observed that " The court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet it could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
In the present case apart from the deposition of PW8 Kewal Kishan, PW1 and PW7 Sachin Sachdeva who appeared soon after the incident called by the Jagdish Lal Sachdeva at the spot and the deceased Jagdish Lal has narrated the event to them at the first instance. PW8 Kewal Kishan was appeared later on in the vehicle wherein the deceased was taken Contd..........
-31- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar to the Kalra Hospital. There is every possibility that the Kewal Kishan PW8 can be won over by the accused persons. Both the witnesses have made corroborative statement and they have not been shattered as stated in their cross examination. In order to consider argument of the defence it would be essential to test the creditworthiness of the prosecution witnesses examined as well as statement of the deceased recorded before his death.
It is impossible to find out the testimony of a witness which is totally free from any infirmity or embellishment. The endeavor of the court should be to find out whether the evidence of the witness, if read as a whole, has a ring of truth or not. Minor discrepancies on trivial matters, which does not go to the root of the case should be ignored. Undue importance given to contradictions, which does not go to the root of th case is not desirable as observed in a case titled as State of U.P. Vs. M.K. Anthony, AIR1995 SC
48. The question is whether those contradictions and improvement have made by the witnesses totally unreliable. I consider that those contradictions and improvements are not on the material points. It is not that every contradiction or improvement, which should be given importance. Only those contradictions and improvements should be given importance, which totally belies the version of the witness, or the statement made before the police and the statement made before the court cannot stand together.
Contd..........
-32- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar In the present case the deceased given statement before the IO and named both the assailants in his dying declaration while deceased was taken to the hospital. The Isha Sachdeva and Sachin Sachdeva have also being heard the name of both the assailants which has been stated by the deceased to them. Both the witnesses whatsoever relation have disclosed the name of both the accused as stated by the deceased to them. The deceased was shoot and the bullet was hit on his hip. The empty cartridge was found from the spot and the bullet which was hit the deceased was also got recovered at the time of surgery.
The Privy Counsel in a case titled as Daniel Youth V King AIR 1945 PC 140 warned that in a joint trial, care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. In Nalini case .Hon'ble Mr. Justice Wadhwa pointed out the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. It was observed that there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.
Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspect of the facts Contd..........
-33- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
deposed. The witnesses cannot be straightway condemned and their
evidence cannot be discarded in its entirety. The testimony of witnesses being cogent, credible and trustworthy cannot be totally wiped out because of only circumstance that they were accused in counter -case. In a case titled as State (NCT of Delhi) Vs. Navjot Sandhu, AIR 2005 SC3820 (3886), wherein it was held that " in terrorist attack on parliament, hide outs furnished links between the accused and the deceased terrorist. Testimony of witness running hotel where they stayed was found to be reliable, it could not be discarded on the ground that he did not produce record of their stay." In another case titled as Bhargavan V. State of Kerala, AIR 2004 SC 1058 (1066) it was observed that " where witness took the deceased to the hospital, the non disclosure of names of assailants by him to the doctor who treated deceased is of no consequence."
The victim and accused were know to the witness. His evidence would be material and cannot be criticized on ground that as witness was knowing the father of the deceased, so he is interested witness, as observed in a case titled as Sandeep V. State of Haryana, AIR 2001 SC 1103 (1108). In another case titled as Siva Kumar V. State by Inspector of Police, AIR 2006 SC 653 (657) it was observed that " Doctor who had Contd..........
-34- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar conducted postmortem examination of deceased categorically stated that foreign body seen through X-ray could not be recovered despite great effort made in this regard during postmortem. He noticed that penetrating injury was in vital organ of chest part. Hence in view of the said statement non recovery of pellets from body of deceased during postmortem examination was not very material so as to discredit entire prosecution case.."
Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected categorized. While normal discrepancies do not corrode the credibility of the party's case material discrepancies do so. Same inconsistencies of a minor nature in evidence can be regarded as natural, giving more details while deposing before Sessions court are not improvements of such a nature as would create any doubt regarding the reliability as a witness as observed in a case titled as R. Basu V. State of W.B. AIR 2000 SC 908 (913).
There is no principle of law that without corroboration by independent witness their testimony cannot be relied upon. The resumption that person acts honestly applies as much in favour of police personnel as to Contd..........
-35- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar other person. It is thus not a proper judicial approach to distrust and suspect them without good grounds. Evidence of police officers cannot be discarded only because they are police officers. Statement made by the police officers as witnesses should be given same wight as statement made by other witnesses.
The court must not give undue importance to minor contradictions or discrepancies in the evidence of witnesses and reject their testimony. Even honest and truthful witness may also not remember minute details unrelated with the main incident. Criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question whether the accused arraigned is guilty of the crime with which he is charged. In arriving about the guilt of the accused the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and animus of witnesses.
In Asan Tharyil Bahy Vs. Stae of Kerala 1981 CrLJ 1165 (Ker) (DB) held that that statement under section 161 includes both oral or written statement and gesture. The substance of interrogation recorded by Investigating Officer cannot be termed to be a statement recorded u/s 161 Cr.P.C.
In the present case it is the case of the prosecution that the death of Jagdish Lal Sachdeva was by shot from gun and deceased had seen the accused persons at the spot and also narrated the incident to his son Sachin Contd..........
-36- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar Sachdeva and his daughter in law Isha Sachdeva. The information given by the deceased through his statement Ex. PW7/A. The accused persons were also named while interrogation made by IO SI Ashutosh Kumar from the deceased at the hospital. The deceased was fully oriented and was fir state of mind for recording the statement. The infirmity or the development in the deposition of both the PWs does not decline the prosecution of the accused persons. The deceased himself is the only witness of the incident and he had narrated the incident to both the witnesses at the spot, while taking to the hospital in vehicle and to the IO SI Ashutosh Kumar. The version of the deceased regarding the identity of the assailants appearing to be natural and same is not liable to be rejected on the basis of the vague evidence of other witnesses who is considered as a hostile. All the circumstances of the incident creating a net and without there being any tear through which accused persons cannot be escaped. The circumstantial evidence and the dying declaration of the deceased pointed undoubtedly to the conclusion that it is the accused persons and accused persons only the porparetors of the crime and the evidence brought on record is incompatible with the guilt of the accused persons.
As regarding to the recovery of the weapon of offence, the accused persons have taken on the police remand on the basis of their disclosure statement and they have been thoroughly interrogated to get recovered the weapon of offence. However the none recovery of weapon Contd..........
-37- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar have been explained by the accused persons and the IO in his report that all sincere efforts were made since such pistol was thrown at Tanga Stand which is easily accessible to the public at large and every likelihood that someone had taken away said weapon. In a judgment case titled as Amiruddin Vs. State ( Delhi Administration) 2009 VIII AD (Delhi) 381 passed by Hon'ble Justice Sanjay Kishan Kaul and Hon'ble Justice Ajit Bharihoke, upheld the conviction and observed that " The accused would have been used some other weapon and even if there is a wrong description of weapon that would not discredit the evidence of the eyewitnesses. Mere fact that the other witnesses of the brotherhood of deceased and knew both the deceased and the appellant was not ground to discredit the testimony of these witnesses."
The empty cartridge were recovered from the place of incident and the cartridge which was hit was recovered from the body of the deceased. The information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered; But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere recovery of a weapon by itself is no proof that it is the weapon of offence or furnishes incriminating material against the accused. Though recovery from an open Contd..........
-38- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar space may not always render it vulnerable it would depend upon factual situation. The retracted confession may from legal basis for conviction if the court is satisfied the confession was true and was voluntarily made. However safer side without retraction it should not be based on the contention. It is rule of prudence under these circumstances when there is consistent and firm evidence of public witness including the dying declaration of the deceased the recovery of weapon will not make any adverse inference against the case of the prosecution.
As regarding the injuries sustained by deceased is one gun shot injury on the person of Jagdish Lal, aged about 55 years with surgical exploratory lapratomy wound 24 cm length with necessary repair done (multiple perforation of large and small bowel with right hemicolectomy, removal of terminal ileum, adehesionolysys with drainage wound). The entry wound 14.5 cm from right anterior superior iliac spine over gluteal aspect and 23 cm from natal cleft of size 0.8 cm x 0.8 cm circular in shape, inverted edges with abrasion and grease color with blackening, singening with surrounding contusion. The track traversed from backward to forward and upward to abdominal cavity and track filled with dried up blood and clots. There was no other injuries on any part of the body and the cause of death of is haemerrhogaic shock from multiple small and large bowel perforations, hemoperitorium, peritonitis with cumulative effect of injury sustained resulting from projectile fire arm weapon. The position at the Contd..........
-39- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar place where the vital body organ are not found. The intention of a persons is to be gathered from his act as indeed there is not other measures for he same. The single gun shot injuries which happened to be fatal as to whether the offence falls u/s 302 IPC or would fall u/s 304 IPC. Even when the prosecution of section 304 IPC where in which part of section 304 IPC and the issue become complicated.
In a case titled as Thangaiya AIR 2005 SC 1142, it was observed that " It cannot be said as a rule of universal application that whenever one blow is given section 302 is ruled out. IT would depend upon the facts of each case. The weapon used size of the weapon, place where the assault took place; background facts leading to the assault, part of the body where the blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by section 304 and not section 302 IPC."
It is found that only one bullet was hit upon the buttock of the deceased and deceased was admitted in the Kalra Hospital on 11.4.2007 at 11.55 pm and at 12.45 pm on 12.4.2007 his pulse was normal as he was conscious and doctor give him certificate of fitness and at 12.05 am on 12.4.2007 his respiratory system was normal. The blood was oozing from the entry wound and he was surgically operated and at 2.20 pm on 13.4.2007 the patient was developed cardiac arrest. There is no opinion of Contd..........
-40- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar any doctor including the PW16 Dr. Anil Sandil who conducted the post mortem that the injuries was sufficient in the ordinary course of nature to cause death.
In case titled as 1991 Cri LJ 1077, wherein it has been observed that " Where the deceased appeared with the gun causing reasonable apprehension of death and the accused gave only single Farsa blow on neck of the deceased, and the accused was denied an opportunity to prove the right of private defence by prosecution by suppressing genesis of occurrence and with holding material witness, conviction under section 302 is altered to one under section 304 part II."
Keeping in view the aforesaid discussion and the facts and circumstances of the case, I find the testimony of prosecution witnesses ocular, trustworthy, believable and inspire confidence. The prosecution successfully proved its case against the accused persons beyond all reasonable doubts for offence punishable u/s 304/34 IPC. Accordingly, the accused Vicky Makan S/o Late Ram Avtar, and Madan Lal S/o Hira Nand are hereby convicted for the offence u/s 304/34 IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 30.11.2009
(SATINDER KUMAR GAUTAM)
ADDITIONAL SESSIONS JUDGE(WEST-04)
DELHI
-41- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 16/3/09
State
Versus
1- Vicky Makan S/o Late Ram Avtar,
R/o House No. B-291,
Sudarshan Park, New Delhi.
2- Madan Lal S/o Hira Nand,
R/o 6/34A, Moti Nagar,
New Delhi.
FIR No. 270/2007
U/S: 302/34 IPC
P.S. Moti Nagar
ORDER ON SENTENCE:
15.12.2009
Present: Sh. Zafar Khan, Additional Public Prosecutor for State.
Both convicted/accused from J/C. Sh. V.K. Agarwal and Kamal Behal, Counsel for accused Vicky Makan.
Sh. Dinesh Sharma, Counsel for accused Madan Lal.
Both the accused persons have been convicted for offence punishable u/s 304/34 IPC vide separate detailed judgment dated 30.11.2009.
I have heard submission of Ld. APP for State and counsel for both accused persons on the point of sentence and carefully gone through the material on record and citation too.
Contd..........
-42- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar Ld. Additional Public Prosecutor for the State submitted that the charges against both the accused persons were framed for 302/34 IPC, however the prosecution able to prove the charges only for offence punishable u/s 304/34 IPC since the single fire was made by accused persons on the buttock of the deceased which not a vital part of the body which resulted into the death of the victim . As per section 304 IPC which defines that :
"Whoever commits culpable homicide not amounting to murder shall be punished with ( imprisonment for life) or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
In a case titled as State Vs. Dhool Singh 2004 Cri LJ 931 (SC), the Supreme Court has held that " t hat the courts should bear in mind that there is a requirement in law that every conviction should be followed Contd..........
-43- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is need for the courts to apply its mind while imposing sentence."
Both the convicts are having planning to commit crime since the have inimical terms with the deceased after being demolished their shops by the MCD, since deceased has obtained the order of demolition from Hon'ble High court of Delhi. Both the convicts have evil motive such as hatred, avarice and jealousy against the deceased. It is no part of the definition of culpable homicide that the act which causes death should be a malicious act. Whatever may be the motive which incites the action, and whether or not any motive whatsoever be discoverable. The accused persons has intention to cause bodily injury likely to end in death or they understand that it was probable result of their act. It is further submitted by Ld. APP that requisite intention or knowledge was proved against the accused after seeing that these are external and visible acts of the mind. Hence both the convicted are liable for maximum punishment as prescribed under the law.
Ld. Counsel for the convicts humbly submitted that both the convicted have remained in J/C since the day when they were sent to first Contd..........
-44- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar time in J/C and more than two years have already been spent by them in judicial custody. They are only bread earner of their family and having minor kids. They have not being previously convicted land having clean antecedents. Both the convicted are young man and have long life to spent, if remain in J/C further it will punish to their family member and dependent and requested to release them for the period of imprisonment already undergone by them.
In view of aforesaid submission made punishment can be said to be the sanction imposed on the offender for the infringement of law. When a person is tried for an offence and is found guilty, it is the duty of the court to impose appropriate sentence on him. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
The aims of punishment are now considered to be retribution, justice deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at Contd..........
-45- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial though, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided. A Court in passing sentence, should inflict such sentence as the gravity or otherwise of the crime of which the accused has been convicted warrants and merits, irrespective of whether the sentence inflicted will involve a right of appeal or not, even though the accused may pray for an appealable sentence.
The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle consideration of culpability that are raised by the special facts of each case. Judge in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability Contd..........
-46- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar of keeping him out of circulation, and sometimes even the tragic result of his crime. The question of sentence is a matter of discretion for trial court and no limits can be fixed by judicial precedents.
In Halsbury's Laws of England (4th edn.) Vol. 11 p. 287, para 481; it has observed:
A very wide discretion in fixing the degree of punishment is allowed to the trial judge except for the offence of murder, for which the court must pass a sentence of imprisonment for life, and for a limited number of offences in respect of which the penalty is fixed by law including those offences for which the sentence of death must be pronounced.
As regards most offences, the policy of the law is to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit The exercise of this discretion is matter of prudence and not of law, but an appeal lies by the leave of the court of appeal against any sentence not fixed by law, and if leave is given, the sentence can be altered by the court. Minimum penalties have in some Contd..........
-47- State Vs. Vicky Makan
FIR No. :270/2007, P.S. Moti Nagar
instances been prescribed by the enactment creating the offence. In
carrying out the task of reviewing sentences, however, the Court of Appeal will generally not interfere, unless the sentence is one not warranted in law or unless there has been some error in principle. It has been very aptly indicated in Dennis Councle MCG Dautha of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. Therefore, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court.
In case titled as Dhananjoy Chatterjee V. State of West Bengal (1994)2 SCC 220, the Supreme Court held that " imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts Contd..........
-48- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime."
The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The act committed by the accused persons with the knowledge that it is likely to cause the death because fire arm has been used in the commission of the crime. However it is not being able to prove and come to conclusion that the act was done with the intention to cause death or intention to cause such bodily injury as was likely to cause death. The intention of the accused persons to teach the lesson to the deceased if factual matrix of the whole case is taken into consideration it must be also beyond any doubt that accused persons were responsible for inflicting those injuries and they must be attributed only with the sufficient knowledge. The court is must aware sight of the fact that death of the old un-defendent person due to the act of the accused persons which is worst kind of crime in a civilized society governed by the law. The right to live with dignity of life and liberty of the individual is envisaged in the Preamble to the Constitution. The common man may not lose faith in the law enforcement machinery and the foundations of the criminal justice Contd..........
-49- State Vs. Vicky Makan FIR No. :270/2007, P.S. Moti Nagar delivery system require stern action to be taken. The court require to adopt punitive stand.
In view of the submission made by counsel for both convicts the decision of law now about the accused persons are young man and having family they will not controlled at this stage. There is further likelihood for becoming the hard core criminal and may likelihood to law breakers. Accordingly accused Vicky Makan S/o Late Ram Avtar and Madan Lal S/o Hira Nand sentenced to undergo eight years rigorous imprisonment. After taking into the account enormity of the offence fine of Rs. One Lakh is also imposed on each of the accused, in default of payment of fine the accused persons will undergo 6 months simple imprisonment more for offence punishable u/s 304/34 IPC. Benefit of section 428 Cr.P.C be also awarded to both convicted. The period already undergone be set off from the period of sentence awarded to both convicted.
The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.
A copy of this order as well as of the judgment be given free of cost to both the convicted. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT TODAY ON 15.12.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI