Delhi District Court
(Judgment) State vs . Sunny Kumar on 31 March, 2018
(Judgment) State Vs. Sunny Kumar
FIR No.17/16
Under Section : 307/34 IPC & 25/27/54/59 Arms Act
Police Station : Rithala Metro
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS
JUDGE, FTC, (NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No. 53302/16
Unique Case ID: DLNW01-004498-2016
State
Vs
Sunny Kumar
S/o Sh. Jitender Kumar
R/o H.No.28-D, Gali No.4,
Hanuman Chowk, Rajiv Nagar,
Begumpur, Delhi ...................ACCUSED
FIR No. :17/16
Police Station : Rithala Metro
Under Section : 307/34 IPC & 25/27/54/59 Arms Act
Date of committal to Sessions Court : 08.07.2016
Date on which judgment reserved : 28.03.2018
Date on which judgment pronounced : 28.03.2018
JUDGMENT
1. This is a case under sections 307/34 of Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION
2. On 23.03.2016, at about 9:00 pm, Kamal Kumar (the complainant) along with his cousin Dharampal @ Manu and his friend Sachin had visited a wine Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro shop at Inderlok Metro Station to purchase wine. After purchasing the wine, he and Manu were talking to each other near his scooter while Sachin had gone to ease himself. At some distance, two boys aged about 18-22 years were standing near one scooty no. DL 8SBL 0902 of blue colour and were do- ing show off (tashanbazi). The complainant asked those boys as to why they were doing that. In reply, those two boys asked the complainant to stop and they would show him. By that time, one of the boys took out the pistol and fired on him with intention to kill him. The fired bullet hit on his right thigh and blood started oozing out. The complainant told Manu that those boys had fired the bullet and Manu ran after them. Those boys kept the pistol in the dicky of the scooter and pushed Manu and ran away. Sachin and Manu ran af- ter them but could not apprehend them.
3. According to the prosecution, the boy who fired bullet was Sunny Kumar (the accused) and another boy who accompanied the accused was Rohit Ra- jput (JCL).
CHARGE
4. Charge under section 307/34 IPC and section 27 Arms Act were settled against the accused. On 01.02.2017, the charge under section 25(1B) (a) Arms Act was also added against the accused for possessing the pistol, magazine and two live cartridges in violation of provisions of Arms Act. The accused pleaded not guilty and claimed trial.
EVIDENCE
5. In order to discharge the onus, the prosecution has examined 15 witnesses.
Page no.22/ 25(Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro PUBLIC WITNESSES
6. PW-3 Kamal Kumar (the complainant /victim) deposed that the incident was of one night before the Holi festival when he had gone to liquor shop at Inderlok Metro Station at about 8.00-8.30 pm. His friend Sachin (PW4) and Dharam Pal @ Mannu (PW11) were also with him. They had gone there on a scooter. After purchasing the liquor, when he and PW11 came out, they saw two persons who were standing at a short distance from their scooter, were in- dulged in show off (tashanbazi) by hurling the pistol in air. He and PW11 were wondering as to how they were openly hurling the pistol in air. When they walked further, a fire was shot from behind and hit him on his right thigh. After receiving bullet injury, he started crying and shouting. He also asked his friend to apprehend those two persons as they were having pistol but they both were able to run away from there. Police had recorded his statement Ex. PW3/A.
7. PW-4 Sachin Goel deposed on the lines of PW3 as to how they reached at Inderlok Metro Station. He also deposed that after purchasing the liquor, they came out of the shop. He left to ease himself. In the meanwhile, he heard shouts of PW3 "jaldi aa mere pair mein goli lag gayi hai". He was at a dis- tance of 10-15 steps at that time and he rushed towards PW3. PW11 rushed towards that person who had fired. He also followed PW11. They saw that the accused was having pistol in his hand. The accused kept that pistol in dickey of the scooty and pushed PW11. Thereafter, the accused alongwith JCL fled away from the scene leaving the scooty behind. PW4 further de- posed that in the same night at about 1.30-2.00 am, he was called at PS Rithala Metro Station. The accused and JCL were found sitting there and he identified them. Scooty and pistol were also shown at the police station and Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro the police had obtained his signatures on some documents. PW4 has cor- rectly identified the accused as the person who had fired on PW3.
8. PW4 also deposed that he had come at the spot later on and joined the in- vestigation. The scooty was inspected by the police in his presence and from the dickey of the said scooty, one pistol with the magazine was recovered. IO prepared the sketch of the said recovered pistol with magazine i.e. Ex. PW4/A. He also proved the sketch of one empty cartridge Ex.PW4/B. He also deposed that IO prepared the seizure memo of the pistol alongwith magazine Ex.PW4/C and seizure memo of the empty cartridge Ex. PW4/D. Blood- stained earth control was lifted by the police from the spot and was seized vide memo Ex.PW4/E. Scooty along with the key was seized by IO vide seizure memo Ex.PW4/F. He proved the arrest memo and personal search memo of the accused Ex. PW4/G and Ex. PW4/H respectively. PW4 identi- fied the pistol along with its magazine Ex.P1 (colly).
9. PW-11 Dharampal @ Manu deposed about the incident on the lines of PW3 and PW4. He also deposed that he alongwith PW4 stopped one PCR and took PW3 to Maharaja Agrasen Hospital. PW11 correctly identified the accused as the person who was holding the pistol.
POLICE WITNESSES
10. PW6 HC Anil Kumar proved the copy of FIR Ex.PW6/A, endorsement Ex.PW6/B and certificate under Section 65-B Indian Evidence Act Ex.PW6/C. He deposed that after registration of case, he handed over copy of FIR and original rukka to Ct. Pawan for handing over the same to IO.
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11. PW1 SI Nagender deposed that on 23.03.2016, after receiving the infor- mation, he along with other team members reached at the spot and met IO along with other local police staff. A blue color Hero Maestro scooty was found parked in front of the said restaurant. A metallic pistol, made in Japan in coked condition and one filled beer bottle were found inside the dickey of the said scooty. They also found one empty cartridge 7.65 KF lying on the ground below the said scooty. Bloodstains were also noticed at the scene of the crime on the ground. No chance-prints were found on the pistol and scooty when checked by fingerprint proficient. Crime Team Photographer Ct. Amit (PW2) had taken the photographs of the scene of crime. IO was advised to seize said articles i.e. pistol, empty cartridge, beer bottle and lifting of earth control and bloodstains. He proved his report Ex.PW1/A.
12. PW2 Ct. Amit deposed that on 23.03.2016, he along with his in-charge, reached at the spot and took 13 photographs of the scene of crime. After de- veloping the same, he handed over such photographs and negatives to the IO. He proved the 13 photographs Ex.PW2/A1 to Ex.PW2/A13 and the negatives of the same Ex.PW2/B.
13. PW8 ASI Anil Kumar proved the copy of relevant entries in register no.19 Ex.PW-8/A, Ex.PW-8/B, Ex.PW-8/C, Ex.PW-8/D, Ex.PW-8/E, Ex.PW- 8/F, and Ex.PW8/G. He deposed that all the above mentioned exhibits were handed over to PW9 who deposited the same at FSL Rohini vide RC no.10.21.16 Mark-PW8/H and proved the endorsement to this effect in regis- ter no.19 Ex.PW8/F.
14. PW9 SI Shiv Kumar (Investigating Officer/IO) deposed that on 23.03.2016, he received information regarding shooting of a man in front of Inder Lok Metro Station vide DD No.19-A and DD No.20-A and proved at-
Page no.22/ 25(Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro tested copy of the same as Ex.PW-9/A. Accordingly, he along with Ct. Pawan reached at the spot where they found one scooty of blue colour bearing regis- tration no. DL 8SBL-0902 and one fired empty cartridge lying near the said scooty. He also noticed blood stains on the ground near the scooty. On checking the dickey of the said scooty, one country made pistol was found. On inquiry, they came to know that two person had shot on a person and in- jured was taken to NKS Hospital by PCR Van. He left Ct. Pawan at the spot and he himself went to NKS Hospital and from there, he obtained the MLC of PW3 and came to know that PW3 was referred to Maharaja Agrasen Hospital. Thereafter, he went to Maharaja Agrasen Hospital and moved an application to CMO of the concerned hospital regarding seeking opinion if the injured was fit for statement or not vide the application Ex.PW9/A1. Concerned doc- tor opined that injured was fit for statement. He recorded the statement of PW3 Ex.PW-3/A. He made endorsement on the complaint Ex.PW9/B. He prepared the sketch of the recovered country made pistol and its magazine Ex.PW4/A; and the sketch of fired empty cartridge Ex.PW-4/B. He seized the country made pistol with its magazine and fired empty cartridge vide seizure memos Ex.PW4/C and Ex.PW4/D respectively. Bloodstained earth control was lifted and was taken into possession vide seizure memo Ex.PW- 4/E. The above said scooty along with its key were taken into possession vide seizure memo Ex.PW4/F. At the instance of PW4 and PW11, he pre- pared site plan Ex.PW9/C.
15. PW9 further deposed that he alongwith Ct. Pawan, PW4 and PW11 went to JJ colony, Wazirpur, in search of the accused persons and at their instance, JCL Rohit Rajpoot was apprehended from his house and on interrogation, he disclosed that the accused was residing at Begum Pur. He alongwith Ct. Pawan, PW4, PW11 and JCL went to the house of the accused at Begumpur and at the identification of both the witnesses, the accused was apprehended from his house. He arrested him vide arrest memo Ex.PW4/G and conducted Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro his personal search vide memo Ex.PW4/H. He recorded his disclosure state- ments Ex.PW9/D and Ex.PW9/E. In pursuance of his disclosure statement, he got recovered two live cartridges. He prepared the sketch of live car- tridges Ex.PW9/F. Both the said live cartridges were taken into possession vide memo Ex.PW9/F1.
16. PW9 deposed that on 25.03.2016, concerned doctor handed over one sealed pullanda sealed containing pant of PW3 which he took into possession vide seizure memo Ex.PW9/G. On 26.03.2016, concerned doctor handed over one sealed plastic box containing pellet of the fired bullet along with sample seal which was taken into possession vide memo Ex.PW9/H. On 11.04.2016, he took the exhibits from malkhana vide RC No. 10/21/16 and deposited the same at FSL Rohini. On completion of investigation, he filed the charge-sheet in the Court.
17. PW9 identified the country made pistol and its magazine Ex.P1 (colly); fired empty cartridge Ex.P2; and two test fired cartridges along with its lead Ex.P3 collectively. He obtained sanction u/s 39 Arms act.
18. PW10 Sh. Jitendra Mani, DCP proved the sanction u/s 39 of Arms Act for the prosecution of the accused for the offence u/s 25 Arms Act i.e. Ex. PW10/A. MEDICAL EVIDENCE
19. PW7 Dr. Sachin Tyagi proved the MLC no. 552/16 of PW3 Ex.PW7/A and deposed that PW-3 was referred to Higher Center for further management and treatment.
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20. PW-12 Naresh Agarwal, deposed that on 23.03.2016, at about 11:00pm, PW3 was admitted in the Maharaja Agrasen Hospital, with alleged history of gun shot injury. Surgery of PW3 was conducted and one metallic foreign body (bullet) was removed from his right thigh during the surgery. PW3 was discharged on 25.03.2016 vide discharge summary report Ex.PW-12/A. The bullet removed from the body of PW3 was sealed and handed over to the IO of the case.
21. PW5 Dr. Chitranjan Kumar proved the MLC of the accused Ex.PW5/A and Ex. PW5/B. FORENSIC EVIDENCE
22. PW-13 Sh. Saurabh Pathak, Jr. Forensic/Chemical Examiner Biology, FSL deposed that on 16.11.2016, two sealed parcels were received in FSL in present case in biology division. The same were assigned to him for exami- nation. The seals were intact on the parcels as per forwarding letter. The sealed cloth parcel was opened and found containing exhibit 4 i.e. road mate- rial. The second sealed adhesive tape parcel was opened and found contain- ing Ex. 5a, 5b, 5c, i.e. one T-shirt, one Baniyan and one underwear. He exam- ined the exhibits and prepared by detailed biology and serology report and proved the report Ex.PW-13/A. The road material Ex.4 and underwear Ex.5c were found containing human blood. The remnant of Exhibits were sealed with the seal of SP FSL Delhi after conducting examination.
23. PW-15 Puneet Puri, deposed that on 11.04.2016, six sealed parcels of the present case were received in FSL through SI Shiv Kumar and the same were marked to him for examination. Parcel no.4 and 5 were sent to biology divi-
Page no.22/ 25(Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro sion for examination. The seals on the parcels were intact and as per the specimen seals provided with the FSL Form. PW-15 deposed that on open- ing the first parcel one improvised pistol 7.65mm bore was taken out and marked as Ex.F1 by him. On opening the second parcel one 7.65mm car- tridge case (percussion cap found absent) was taken out and marked as Ex.EC1 by him. On opening the third parcel two 7.65mm cartridges were taken out and marked as Ex.A1 and Ex.A2 by him. On opening the parcel number six, one deformed bullet was taken out and marked as Ex.EB1 by him. Three 7.65mm cartridges were received for test firing.
24. PW-15 also deposed that on examination, he found that the improvised pistol marked Ex.F1 was in working order. Test fire was conducted success- fully by using the cartridges marked Ex.A1, A2, the test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. The cartridge case marked Ex.EC1 was the fired empty cartridge and had been fired through the improvised pistol marked Ex.F1 as the individual characteristics of breech face marks present on evi- dence cartridge case marked Ex.EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the Comparison Microscope. The bullet mark Ex.EB1 was corresponding to the bullet of 7.65mm cartridge and had been discharged through the improvised pistol marked Ex.F1 as the individual characteristic of striations present on evidence bullet marked Ex.EB1 and on test fired bullets marked TB1 and TB2 were found identical when examined under the Comparison Microscope. The im- provised pistol marked Ex.F1 was a firearm, the cartridges marked Ex.A1, A2, cartridge case marked Ex.EC1 and the bullet marked Ex.EB1 were am- munition as defined in Arms Act 1959. The exhibits were then resealed with the seal of PP FSL DELHI. He proved his report Ex.PW-15/A. Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro STATEMENT OF ACCUSED
25. After completing the prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the incriminating evidence/material was put to him to which he has denied. The accused stated that he is innocent and has been falsely implicated in this case.
DEFENCE EVIDENCE
26. The accused has not led evidence in his defence despite given opportunity.
27. I have heard the ld. Addl. PP and counsel for the accused and have pe- rused the material available on record.
DATE, TIME AND PLACE OF INCIDENT
28. According to the prosecution, the incident took place on 23.03.2016, at about 9:00 pm in front of McDonald near Parking of Inderlok Metro Station Delhi. To prove it, the prosecution examined PW-3, PW-4 and PW-11 who specifically deposed about the date, time and place of incident. In their cross examination, no suggestion to the contrary was given. In cross examination of PW-11, one suggestion was given which he denied that it were PW-3, PW-4 and PW-11 who instigated the accused and his associate. The said suggestion substantiates the case of prosecution as to the date, time and place of incident. PW-9 proved the site plan Ex.PW-9/C. Testimony of PW-9 to that effect re- mained unrebutted. Hence, the date, time and place of incident stand proved.
Page no.22/ 25(Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro IDENTITY OF THE ACCUSED AND HIS PRESENCE AT THE SCENE OF CRIME
29. According to the prosecution, there were two assailants out of which one was the accused and another was Rohit Rajput (JCL) who were present at the scene of crime at the relevant time. PW-3 in his testimony though deposed that he could not identify those two assailants but he specifically deposed that those two assailants were indulged in show off (tashanbazi) by hurling the pistol in air. The said testimony of PW-3 was corroborated with testimony of PW-4 and PW-11. PW-9 in his cross examination admitted one suggestion that one of the assailant was juvenile. PW-11 in his cross examination admit- ted one suggestion that when he tried to apprehend the accused and his asso- ciate, they pushed him and ran away. In view of the foregoing discussions, it can be held that there were two assailants and out of them, one was juvenile.
30. Regarding the identity and presence of the accused at the scene of crime, PW-3 deposed that he was not in a position to identify the accused but his friends could identify them.
31. To this effect, PW-4 in his testimony specifically deposed that he saw the assailant who was having pistol in his hand and identified the said person as the accused. In his cross examination, no suggestion to the contrary was given by counsel for the accused.
32. To this effect, PW-11 deposed that once PW-3 had sustained the bullet in- jury, he rushed towards the accused to whom he had already seen holding the pistol and he challenged the accused also as to why he had shot, but the ac- cused pushed him. In his cross examination, no suggestion to the contrary Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro was given by counsel for the accused. In his cross examination, he deposed that after hearing the noise of firing, he immediately saw that the accused was holding the pistol and was keeping the same in the dicky of the scooter. No suggestion to the contrary was given by counsel for the accused. Further, in his cross examination, he denied one suggestion that it were they who had in- stigated the accused and his associate. This suggestion substantiates the pres- ence of the accused along with his associates at the scene of crime at the rele- vant time.
33. The accused in his statement u/s 313 CrPC admitted that he along with JCL ran away from the spot leaving the scooty at the spot.
34. In view of the testimony of PW-3, PW-4 and PW-11, it can be held that there were two assailants. In view of the testimony of PW-4 & PW-11 and statement of accused u/s 313 CrPC, it can be held that out of those two as- sailants, one was the accused and another was JCL. As such, the identity and presence of the accused along with JCL at the relevant time at the scene of crime stand proved.
MEDICAL EVIDENCE AND FORENSIC EVIDENCE
35. PW-12 proved that surgery of PW-3 was conducted and thereupon, one metallic foreign body (bullet) was removed from his right thigh.
36. The accused in his statement u/s 313 CrPC admitted that one bullet hit PW-3. As such, the accused has admitted the injury sustained by PW-3 and its cause.
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37. In view of the foregoing discussions, it can be held that PW-3 sustained the bullet injury in the subject incident and the said bullet hit on the right thigh of PW-3. Hence, the injury sustained by PW-3 and its cause stand proved.
38. According to the prosecution, the pistol Ex.P-1 was used in the incident and the empty cartridge Ex.P-2 was seized from the scene of crime. Accord- ing to FSL report Ex.PW-15/A, the said pistol was in working condition and the bullet seized was fired from the said pistol.
39. In view of the foregoing discussions, it can be held that PW-3 sustained the bullet injury and the bullet was fired from the pistol Ex.P-1. Hence, the nature of the injury sustained by PW-3 and its connection with the pistol Ex.P-1 stands proved.
40. Ld. APP pleaded that on 23.03.2016, at about 9:00 pm, PW3, PW4 and PW11 had visited a wine shop at Inderlok Metro Station to purchase wine. At a some distance, the accused and JCL were standing near one scooty no. DL 8SBL 0902 of blue colour and were doing tashanbazi. PW3 asked those boys as to why they were doing that. In reply, those two boys asked PW3 to stop and they would show him. By that time, the accused took out the pistol and fired on him with intention to kill him. The bullet hit on his right thigh and blood started oozing out. Thereafter, the accused and JCL ran away from the spot. Hence, he prayed that the accused may be held guilty for the offence charged with.
41. On the contrary, counsel for the accused pleaded that according to PW3, PW4 and PW11, they have not seen the accused firing the shot. Hence, the Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro accused is innocent and has been falsely implicated in this case. Hence, she prayed that the accused may be acquitted.
42. Now the question arises as to whether it was the accused who fired the bullet on PW3 due to which PW-3 sustained bullet injury.
43. As held above, the identity and presence of the accused along with JCL at the relevant time at the scene of crime stands proved.
44. As held above, PW-3 sustained bullet injury on his right thigh, but he has failed to identify the accused as the person who had fired the bullet.
45. PW-4 though identified the accused who was holding the pistol but stated that he had not actually seen the accused firing the shot.
46. PW11, in his examination in chief, identified the accused who was hold- ing the pistol and deposed that it was the accused who had fired the shot. However, in his cross examination, he admitted one suggestion that he had not seen the accused while firing.
47. PW-3 in his testimony specifically deposed that two persons were stand- ing at a short distance from their scooter and were indulged in show off by hurling the pistol in air. In his cross examination, PW3 though deposed that there was no scuffle or confrontation between them and the assailants, but no suggestion was given to him by counsel for the accused that they were not in- dulged in show off by hurling the pistol in air.
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48. PW-4 deposed that once he heard the shout of PW-3, he rushed towards him while PW-11 rushed towards that the person who had fired. He also fol- lowed PW-11 and saw that that person was holding the pistol in his hand and it was the accused. The accused put the pistol in the dicky of the scooty and pushed PW-11. Thereafter, the accused along with JCL fled away from the spot. In his cross examination, no suggestion to the contrary was given by counsel for the accused.
49. Testimony of PW-4 is corroborated with testimony of PW-11 who also de- posed that two person were standing outside the shop out of which one was carrying the pistol and that was the accused. He also deposed that after the gun shot injury, he rushed towards the accused who was already holding the pistol and he challenged him as to why he had shot, but the accused pushed him and he fled away. In his cross examination, no suggestion to the contrary was given by counsel for the accused. In his cross examination, he deposed that after firing, he immediately noticed that the accused was holding the pis- tol and kept the same in dicky of the scooty and once, he tried to apprehend them, they pushed him and ran away.
50. The accused in his statement u/s 313 CrPC admitted that the said pistol belonged to JCL and after the incident, they fled away from the spot leaving their scooty, The accused has failed to explain that if he was not involved in the incident then why he along with JCL ran away from there leaving their scooty. As such, an adverse inference can be drawn against the accused.
51. In view of the foregoing discussions, it can be held that it was the accused who was holding the pistol just before and immediately after the incident and thereafter, he kept the pistol in the dicky of the scooty. The pistol Ex.P1 be- longed to JCL. The same pistol was seized from the spot and from that pistol Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro only, the bullet, which hit PW-3, was fired. Therefore, these facts unerringly point out that it was the accused only who had fired the bullet on PW-3 from the pistol Ex.P1 due to which he sustained injury. Therefore, merely because PW-4 and PW-11 deposed that they had not seen the accused actually firing the bullet on PW-3 is not sufficient to absolve the accused from his liability.
RECOVERY OF PISTOL AND CARTRIDGE
52. Counsel for the accused pleaded that according to PW4, he had gone alongwith PW3 to the hospital in PCR van. However, according to PW9, he recovered country made pistol and its magazine and fired cartridge in the presence of PW4 and PW11 and then prepared their sketch. As such, the recovery of the said items is doubtful in nature.
53. According to testimony of PW9, on receipt of the information, he firstly visited the scene of crime and found the scooty and fired cartridge there. He also found one country made pistol in the dicky of the said scooty. Simultaneously, he called the crime team who inspected the spot and took the photographs from different angles. He was informed that the injured was removed to the hospital. Accordingly, he left Ct. Pawan at the spot and he left for the hospital. After recording statement of PW3, he came back to the spot and that time he noticed that PW4 and PW11 had also reached there and in their presence, he prepared the sketch of aforesaid articles and seized the same. In his cross-examination also, he deposed to that effect.
54. To this effect, PW4 deposed that he rushed along with PW3 to the hospital in the PCR van. Later on, he came back to the spot and joined the investigation. PW-4 deposed that the scooty was inspected by the police in his presence from which one pistol with magazine was recovered from the dicky Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro and proved its sketch Ex.PW-4/A. He also deposed that one empty cartridge was recovered and proved its sketch PW-4/B. Vide seizure memo Ex.PW-4/C, IO seized the pistol along with magazine. Empty cartridge was also seized vide seizure memo Ex.PW-4/D. Blood stained earth control was lifted from the spot and was seized vide memo Ex.PW-4/E and the scooty along with key was seized vide seizure memo Ex.PW-4/F. In cross examination of PW-4, no suggestion was given to rebut the recovery and seizure of the pistol, the empty cartridge, the magazine, earth control from the spot and their seizure.
55. In the crime team report Ex.PW1/A, there is mention of empty cartridge and metallic pistol. PW2 proved the photographs Ex.PW2/A1 to Ex.PW2/A13 and their negatives Ex.PW2/B. In the said photographs, the pistol and empty cartridge are specifically shown. The said testimony of PW1 and PW2 remained unrebutted.
56. In view of the testimony of PW4 and PW9, it can be held that once they returned from the hospital to spot, the recovery of the scooty, the pistol alongwitgh the magazine and the empty cartridge was effected. However, before that, the crime team had already noticed the pistol and empty cartridge and then took their photographs.
57. PW-11 in his cross examination also deposed that after firing, he immediately saw that the accused was holding the pistol and kept the same in the dicky of the scooty. The said testimony of PW-4 and PW-11 is further corroborated with testimony of PW-9.
58. Not the least, it is evident from the statement of the accused u/s 313 Cr.PC that the pistol recovered from the spot belonged to JCL and once the bullet hit PW3, the accused alongwith JCL ran away from the spot leaving the scooty there. This also proves the connection of the scooty and the pistol in Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro the subject incident.
59. In view of the foregoing discussions, it can be held that the contradiction pointed out by counsel for the accused even otherwise is of no consequence. Therefore, the recovery of the pistol along with magazine, empty cartridge and the scooty from the spot stands proved.
ARREST OF THE ACCUSED
60. According to the prosecution, vide arrest memo Ex. PW4/G, the accused was arrested on 24.03.2016 at about 6.00 am from house no. 28-D, Gali No.4, Hanuman Chowk, Rajeev Nagar Extension, Begum Pur, Delhi in presence of PW4 and PW11.
61. Counsel for the accused pleaded that according to the prosecution, the accused was arrested on 24.03.2016 at about 6.00 am from house no. 28-D, Gali No.4, Hanuman Chowk, Rajeev Nagar Extension, Begum Pur, Delhi in presence of PW4 and PW11. However, PW4 and PW11 in their testimony, denied the same.
62. PW9 specifically deposed about the arrest of the accused vide arrest memo Ex. PW4/G. In cross examination also, PW9 specifically deposed that the accused was arrested from his house situated at Begum Pur. No suggestion to contrary was given to him by counsel for the accused.
63. In cross examination of PW9, the accused tried to build up a case that he had surrendered himself in the police station. However, in reply to question no. 17 of the statement u/s 313 CrPC that he was arrested from his house at the instance of PW4 and PW11 vide arrest memo Ex.PW4/G, he simply Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro showed his ignorance and did not state as to how he was arrested if not arrested that way. On the contrary, in reply to question no. 9, he stated that he was not arrested, which is contrary to the judicial record. As such, an adverse inference can be drawn against the accused.
64. In view of the foregoing discussions, it can be held that the accused was arrested following due process of law.
MOTIVE
65. Counsel for the accused pleaded that the prosecution has failed to prove that there was any scuffle between PW3 and the accused. As such, the prosecution has failed to prove the motive behind the subject incident.
66. PW3 has retracted from his earlier statement Ex.PW3/A to the extent that two boys on seeing him, were doing show off and once he asked them as to why they were doing that, those two boys told him to stop and they would show him. PW3 in his cross-examination admitted one suggestion that there was no verbal scuffle or confrontation between them. However, in cross- examination of PW11, one suggestion was given which he denied that it were they who instigated the accused and his associate i.e. JCL. However, the accused has failed to prove that it were PW3, PW4 and PW11 who instigated him and JCL. But from the said suggestion, it can be inferred that there was some communication between PW3, PW4 & PW11 on one hand, and the accused & JCL on the other hand and in pursuance thereto, the accused fired the bullet without any instigation from the opposite side. Therefore, there is no substance in the plea raised by counsel for the accused.
67. In view of the foregoing discussions, it can be held that the prosecution has proved beyond reasonable doubt that the accused along with JCL was Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro present at the scene of crime on the relevant date and time. It is also proved that the accused fired the bullet which hit PW3 on his right thigh. It is also proved that the accused and JCL aided each other in the subject incident. As such, the active participation of the accused and JCL in the incident stands proved. Therefore, it can be held that the accused and JCL shared the common intention in committing the offence. Hence, the injury sustained by PW3 was attributable to the accused and JCL. Reliance is placed upon the judgment passed by the Hon'ble Supreme Court in case titled as "Virendra Singh vs. State of Madhya Pradesh", in reported in (2010) 8 SCC 407.
68. Now the question arises whether the accused did the acts with such intentional or knowledge and under such circumstances that, if they by that act caused death, they would be guilty of murder.
69. In law, for the purpose of constituting an attempt under section 307 IPC, there are two ingredients required, first an evil intent or knowledge, and secondly, an act done. It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under section 307. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the section. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder.
70. As held above, there was some communication between PW3, PW4 & PW11 on one hand, and the accused & JCL on the other hand and in pursuance thereto, the accused fired the bullet. The accused though tried to build up a case as it was were PW3, PW4 and PW11 who instigated him and JCL, however, the accused has failed to prove the same. Further, there is nothing on record to suggest that the accused fired shot in heat of the moment. As such, it can be held that there was no instigation on the part of PW3, PW4 and PW11. As such, the accused fired shot without any necessity and knowing fully well it consequences. It is not a case where the accused fired the bullet in the air but by way of coincidence, it hit PW3. According to PW12, surgery of PW3 was conducted and one metallic foreign body (bullet) was removed from his right thigh during the surgery. As such, the bullet fired by the accused hit the vital part of the body of PW3. The accused and JCL ran away after the incident. In view of the foregoing discussions, it can be held that the accused had intentionally fired the shot on PW3. While committing the said act, he knew that the act was so imminently dangerous that it must in all probability cause death or such bodily injuries as was likely to cause death and committed that act without any excuse for incurring the risk of causing death or such bodily injuries. In the said process, he had caused hurt of PW3. Therefore, the accused is held guilty u/s 307/34 IPC.
71. As held above, the accused used the pistol Ex.P1 in the subject incident. Therefore, the accused is held guilty u/s 27 of the Arms Act.
72. Case of the prosecution is that two live cartridges were recovered from the house of accused. However, the said two live cartridges have no Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro connection with the subject incident. Therefore, the prosecution is at liberty to initiate the separate proceedings against the accused u/s 25 Arms Act.
73. Accordingly, the accused is convicted for the offence under section 307/34 IPC. The accused is also convicted for the offence under section 27 Arms Act.
Announced in the open court on this 28th day of March, 2018.
(Pankaj Gupta) ASJ (FTC), North-West Rohini Courts, Delhi Page no.22/ 25 (Judgment) State Vs. Sunny Kumar FIR No.17/16 Under Section : 307/34 IPC & 25/27/54/59 Arms Act Police Station : Rithala Metro IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE, FTC, (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 53302/16 Unique Case ID: DLNW01-004498-2016 State Vs Sunny Kumar S/o Sh. Jitender Kumar R/o H.No.28-D, Gali No.4, Hanuman Chowk, Rajiv Nagar, Begumpur, Delhi ............................... CONVICT FIR No. : 17/16 Police Station : Rithala Metro Under Section : 307/34 IPC & 25/27/54/59 Arms Act Date of committal to Sessions Court : 08.07.2016 Date on which judgment reserved : 28.03.2018 Date on which judgment pronounced : 28.03.2018 ORDER ON SENTENCE 31.03.2018 Present:- Sh. Shiv Kumar, Ld. Substitute Addl. PP for the State.
The convict produced from JC.
Ms. Usha Rani, LAC for the convict.
1. The convict is held guilty under section 307/34 the Indian Penal Code, 1860 (IPC). The convict is also held guilty under section 27 Arms Act.
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2. Ld. Substitute Addl. PP for the State submits that the offence committed by the convict was grave in nature. As such, the convict does not deserve any leniency and maximum punishment may be awarded.
3. Counsel for the convict submits that the convict is of young age and has no previous conviction. Therefore, it is prayed that the convict may be treated with leniency.
4. The aggravating circumstances are that the convict had committed the offence by causing the bullet injury on the vital body part of the complainant at a public place in the night time. The mode and manner of the crime was detrimental to the societal peace.
5. Keeping in view all the facts and circumstances of the case and the mitigating circumstances as mentioned above, the convict is sentenced to:-
(i) undergo Rigorous imprisonment for a period of 07 years alongwith fine of Rs. 20,000/- for the offence U/s 307/34 IPC; in default of payment of fine, to undergo Simple Imprisonment for a period of 02 months.
(ii) undergo Rigorous imprisonment for a period of 03 years alongwith fine of Rs. 5,000/- for the offence U/s 27 Arms Act; in default of payment of fine, to undergo Simple Imprisonment for a period of 01 month.
6. Both the sentences shall run concurrently.
7. Benefit of section 428 Cr. PC be given to the convict.
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8. Copy of this order and judgment be given to the convict free of cost.
9. File be consigned to Record Room.
Announced in the open court on this 31st day of March, 2018.
(Pankaj Gupta) ASJ (FTC), North-West Rohini: Delhi Page no.25/ 25