Delhi District Court
The State vs Vinod @ Sheelu on 17 December, 2014
D.O.D 17.12.2014 FIR No. 222/2014
P.S Alipur
u/s 307 IPC & 25/27/54/59 Arms Act
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 201/2014
UID NO . : 02404R0168532014
FIR No : 222/14
P. S : Alipur
u/s 307 IPC
25/27/54/59 Arms Act
The State versus Vinod @ Sheelu
S/O Karan Singh R/O Ramzan Pur, P.S
Alipur, Delhi.
Date of committal to session court : 26.07.2014
Date of argument : 17.12.2014
Date of order : 17.12.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that complainant Pawan @ Kala was going in his Hundai Accent Car bearing no. DL-8CNA-3400 towards village Ramzan pur. Accused Vinod @ Sheelu was coming from the side of village Ramzan pur in his Alto Car no. DL-7CH-2407. It is alleged that accused Vinod @ Sheelu fired from a desi katta towards Pawan @ Kala as a result of which bullet hit the car of Pawan @ Kala . Accused SC No. 201/14 State vs Vinod @ Sheelu (Page 1 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act Vinod @ Sheelu is again shown to have fired bullet which hit left side tyre of the Accent Car. Complainant is shown to have made a call to police at 100 number. Police reached there and followed the accused. Accused was arrested at the instance of complainant.
2. It is the case of the prosecution that from the possession of the accused arms and ammunition were recovered which were sealed and seized and subsequently were sent to FSL for examination. As per the FSL result the desi katta's recovered from the possession of accused were found to be in working conditions. Requisite sanction u/s 39 Arms Act was also obtained and on completion of investigation, accused was chargesheeted for offences u/s 307 IPC and 25/27 Arms Act.
3. Vide order dated 29.5.2014, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 307 IPC was exclusively triable by the court of sessions, therefore, vide order dated 26.7.2014, case was committed to the court of sessions .
4. Vide order dated 23.09.2014, this court SC No. 201/14 State vs Vinod @ Sheelu (Page 2 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act decided the charges and accordingly, charges for the offences u/s 307 IPC and 25/27 Arms Act were framed against the accused to which he pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has examined as many as six witnesses.
6. PW 1 Geeta is the public witness who has not supported the case of the prosecution and she completely turned hostile. She was cross examined by the ld Adll PP for the state.
7. PW2 Pawan Kumar @ Kala, as per the story of prosecution, is the complainant on whose complaint present FIR was registered. He deposed that on 09.03.14, at about 12:20AM, he was present in village Ramzanpur, Main Bakhtawarpur Road, Delhi. Someone came in a Accent car and fired as a result of which the bullet hit on his car and that person again fired and bullet hit on the left side of the tyre. He made a call to the police. Police came there and obtained his signature on the blank papers. PW2 did not support the case of the prosecution and he completely turned hostile. He was SC No. 201/14 State vs Vinod @ Sheelu (Page 3 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act cross examined by the ld Adll PP for the state.
8. PW3 HC Praveen, PW4 Ct. Attar Singh and PW6 Ct. Rajesh Kumar are the police officials in whose presence accused Vinod @ Sheelu was apprehended and these witnesses have also assisted the IO during investigation. Here it would be suffice to mention the testimony of HC Parveen (PW3) and PW5 S.I Ramesh (IO), as all other witnesses have deposed more or less on the lines of PW3 and PW5.
9. PW3 HC Praveen deposed that on 09.03.14, he was present in the PS. At about 12 Noon, duty officer received an information on wireless set regarding firing at Ramzan Pur. He went to the office of SHO and informed about the incident. Meanwhile, SHO received a telephone call regarding this incident. He along with SHO Jitender Singh reached at the Palla Red Light in a govt. gypsy where Ct. Attar Singh(PW4) who was on petrolling duty, met them . In the meanwhile, they noticed that an Alto car bearing registration no.DL7CH 2407, came from the side of Bakhtawar and was going towards Swaroop Nagar and one car was also following the Alto Car. The Car which was following the Alto Car stopped there and one SC No. 201/14 State vs Vinod @ Sheelu (Page 4 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act person namely Pawan @ Kala(PW2) got down from the car and told them that the accused Vinod @ Sheelu who had fired upon him was going in the alto car. Pawan @ Kala(PW2) sat in the gypsy. He along with Ct. Attar Singh(PW4) Pawan @ Kala and SHO Jitender Singh followed the said alto car. At the red light of Swaroop Nagar, alto car collided with two-three vehicles. Accused Vinod @ Sheelu got down from the car and he was having a country made pistol in his right hand.
10. PW3 HC Praveen further deposed that he along with Ct. Attar Singh(PW4) got down from the gypsy and chased the accused Vinod @ sheelu and overpowered him after chasing from a little distance. Ct. Attar Singh(PW4) snatched the country made pistol from the hand of accused Vinod @ Sheelu. On checking of the pistol, two live cartridges were found in the chasis of the pistol. He along with accused and complainant, SHO and Ct. Attar Singh(PW4) reached at Village Ramzanpur Road where SI Ramesh (PW5) and Ct. Rajesh(PW6) met them .
11. PW5 S.I Ramesh, IO, deposed that on 09.03.14, at about 12:45 PM, on receipt of DD no.16A, he along with Ct. Rajesh(PW6) reached at the spot ie., village SC No. 201/14 State vs Vinod @ Sheelu (Page 5 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act Ramzanpur Road, Delhi where a Hundai Accent Car bearing registration no.DL8CNA 3400, was found parked there . He further deposed that there was bullet mark on the tyre of the driver side and one bullet mark on the dickey of driver side and three empty cartridges were lying at a little distance from the said car. Meanwhile, SHO along with HC Praveen(PW3) , complainant Pawan @ Kala and Ct. Attar Singh(PW4) also reached there. Ct. Attar Singh(PW4) handed over two live cartridges and pistol to him along with the custody of accused. He prepared the sketch of the pistol and two live cartridge Ex.PW2/B. Pistol and live cartridges were measured and barrel of the pistol was 14 Cm and butt was of 9 cm and live cartridges were also measured and it was 2.5 cm. live cartridges and pistol were kept in the pulanda and pulanda was sealed with the seal of RK and taken into possession vide memo Ex.PW2/C.
12. PW5 S.I Ramesh further deposed that he recorded the statement of Pawan Kumar Ex.PW2/A and made his endorsement Ex.PW5/A on the same. Meanwhile, crime team reached at the spot. Incharge Crime Team inspected the spot and photographer of crime team had taken the photographs from different SC No. 201/14 State vs Vinod @ Sheelu (Page 6 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act angles . He recorded the statement of Incharge Crime Team. Three empty cartridges were lifted from the spot. He prepared the sketch of empty cartridges Ex.PW2/E. Empty cartridges were measured and it were of 1.7 Cm. Empty cartridges were kept in a plastic container and the same was sealed with the seal of RK and taken into possession vide memo already Ex.PW2/D. He filled the FSL form and after use seal was handed over to Ct. Rajesh(PW6). He handed over the original rukka to Ct. Rajesh(PW6) and got registered the FIR.
13. PW5 S.I Ramesh further deposed that he prepared the site plan Ex.PW5/B . After registration of the case, Ct. Rajesh returned to the spot and he handed over the original rukka and computerized copy of the FIR to him. Accent Car bearing registration no.DL8CNA 3400, was taken into possession vide seizure memo Ex.PW3/A. Accused Vinod @ Sheelu was arrested vide memo Ex.PW2/F and his personal search was conducted vide memo Ex.PW2/G . Disclosure statement ExPW3/B of accused was recorded. Accused Vinod @ Sheelu also disclosed that he had purchased the recovered pistol from Iqbal resident of U.P. and accused Iqbal met him at Bhalaswa Jheel. Thereafter, accused took them to SC No. 201/14 State vs Vinod @ Sheelu (Page 7 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act Bhalaswa Jheel, where they tried to search Iqbal but he could not be traced. After completion of the investigation, he filed the chargesheet against the accused Vinod @ Sheelu.
14. As stated herein above PW4 and PW6 have deposed exactly on the lines of PW3 and PW5 . PW3 , PW4 ,PW5 and PW6 were cross examined by the ld Amicus Curiae for the accused .
15. Here it is pertinent to mention that during the trial, Ld counsel for the accused has not disputed FSL result and the sanction u/s 39 Arms Act which were given exhibit mark as ExPW5/C and ExPW5/D during the deposition of PW5.
16. Thereafter, statement of accused u/s 313 Cr.PC were recorded. Accused denied all the incriminating evidence put to him. He did not opt to lead any evidence in his defence.
17. I have heard the ld Adll PP for the state and the ld Amicus Curiae for the accused . I have also perused the record very carefully.
SC No. 201/14 State vs Vinod @ Sheelu (Page 8 of 19 )
D.O.D 17.12.2014 FIR No. 222/2014
P.S Alipur
u/s 307 IPC & 25/27/54/59 Arms Act
18. Accused is facing trial for the offence u/s 307 IPC and 25/27 Arms Act . In order to bring the case within the ambit of section 307 IPC, it must be shown that accused acted with such intention or knowledge or under such circumstances that if by that act he caused death, he would be guilty of murder . So the intention or the knowledge to commit murder must exist. It is sufficient to justify the conviction u/s 307 IPC if there is present an intent coupled with some overt act in execution there off.
19. In the present case, although prosecution has examined six witnesses but their testimonies are not sufficient to convict the accused for the offence u/s 307 IPC .
20. PW3 HC Parveen , PW4 Ct Attar Singh , PW5 S.I Ramesh and PW6 Ct. Rajesh are the police officials and admittedly they are not the eye witness to the incident. PW5 S.I Ramesh is the IO, who carried out the routine investigation and other witnesses are formal witnesses who have assisted the IO during the investigation in one way or other. In these circumstances , testimonies of PW1 Geeta and PW 2 Pawan Kumar @ Kala SC No. 201/14 State vs Vinod @ Sheelu (Page 9 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act ( complainant) remains. Rather, I would say, that entire prosecution case rested upon the testimony of PW1 and PW2 qua the offence u/s 307 IPC .
21. As stated herein above , PW1 Geeta and PW2 Pawan Kumar @ Kala have turned hostile completely and they have not supported the case of the prosecution. PW1 Smt Geeta deposed that she does not know anything about the present case and when she came outside from her house a quarrel had taken place with some villager. Similarly, PW2 Pawan Kumar @ Kala has also deposed that someone came in a car and fired as a result of which the bullet hit his car. He further deposed that he does not know anything about this case.
22. PW1 and PW2 were cross examined by ld Adll PP for the state and suggestions were put to them on the lines of story of the prosecution but they denied the same. PW2 Pawan Kumar @ Kala admitted his signatures on certain documents but stated that police obtained his signatures on blank papers. Even during his cross examination, PW2 denied of having made any such statement to the police.
SC No. 201/14 State vs Vinod @ Sheelu (Page 10 of 19 )
D.O.D 17.12.2014 FIR No. 222/2014
P.S Alipur
u/s 307 IPC & 25/27/54/59 Arms Act
23. PW1 Smt Geeta and PW2 Pawan Kumar @ Kala were the only witnesses whose testimonies could have been relevant to bring the guilt home against the accused for the offence u/s 307 IPC. There is nothing on record which could suggest that accused Vinod @ Sheelu had fired towards Pawan Kumar @ Kala (PW2) with an intention to cause his death. The ingredients of the offence us 307 IPC remains unproved.
24. This brings me to the case qua the offence u/s 25/27 Arms Act. In this regard testimony of PW3,PW4,PW5 and PW6 is relevant.
25. PW3 HC Praveen deposed that he along with Ct. Attar Singh(PW4) overpowered and apprehend accused Vinod @ Sheelu . Ct. Attar Singh(PW4) snatched the country made pistol from the hand of accused Vinod @ Sheelu. On checking of the pistol, two live cartridges were found in the chasis of the pistol. He along with accused and complainant, SHO and Ct. Attar Singh(PW4) reached at Village Ramzanpur Road where SI Ramesh (PW5) and Ct. Rajesh(PW6) met them . Ct. Attar Singh (PW4) handed over two live cartridges and pistol to SI Ramesh (PW5) and custody of accused was also handed SC No. 201/14 State vs Vinod @ Sheelu (Page 11 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act over to SI Ramesh. SI Ramesh prepared the sketch of the pistol and two live cartridge Ex.PW2/B and live cartridges were measured and barrel of the pistol was 14 Cm and butt was of 9 cm and live cartridges were also measured and it was 2.5 cm. Live cartridges and pistol were kept in the pulanda and pulanda was sealed with the seal of RK and taken into possession vide memo Ex.PW2/C. Meanwhile, crime team reached at the spot. Incharge Crime Team inspected the spot Three empty cartridges were lifted from the spot. IO prepared the sketch of empty cartridges Ex.PW2/E. Empty cartridges were measured and it were of 1.7 Cm. Empty cartridges were kept in a plastic container and the same was sealed with the seal of RK and taken into possession vide memo Ex.PW2/D .
26. Even during his cross examination, PW3 has denied the suggestion that no pistol was recovered from the possession of the accused Vinod @ Sheelu or he had not joined the investigation. Testimony of PW3 finds supports and corroboration from other prosecution witnesses namely PW4 Ct. Attar Singh , PW5 S.I Ramesh and PW6 Ct. Rajesh, that a pistol and live cartridges were recovered from the possession of the accused which were SC No. 201/14 State vs Vinod @ Sheelu (Page 12 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act sealed and seized.
27. Despite the cross examination of PW3,PW4,PW5 and PW6 nothing could be elicited from their mouth to disbelieve their version regarding the recovery of arms and ammunition from the possession of the accused. All the prosecution witnesses have deposed consistently and there is nothing on record to reject their testimony .
28. It is true that there is no other independent corroboration to aforesaid recovery but it would not make any difference. Record would indicate that the sketch of the arms and ammunition is ExPW2/B and PW3 HC Praveen , PW4 Ct. Attar Singh are the witnesses and it has been prepared by S.I Ramesh Kumar (PW5) . So also the case in respect of seizure of arms and ammunition which was seized vide seizure memo ExPW2/C and ExPW2/D. Even if public witness Pawan @ Kala has turned hostile, still the testimonies of police officials who are witnesses to such recovery, cannot be ignored in toto.
29. Ld counsel for the accused argued that there is no public witness in the present case. She submitted SC No. 201/14 State vs Vinod @ Sheelu (Page 13 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act that no explanation has been given by the IO for non joining of public witness to the said recovery.
30. I do not agree with the contention of the ld counsel for the accused, that the statements of PW-3 to PW6, should be disbelieved because no public witnesses participated in the proceedings. It is generally seen that it is difficult and virtually impossible to get and make public witnesses to participate and be part of a police team in such cases. This practical reality cannot be ignored and forgotten. A realistic and pragmatic approach has to be taken.
31. The obligation to take public witnesses is not absolute. In the present case, record would speak about contemporaneous official records in form of seizure memo's , sketch about recovery of arms and ammunition which corroborate the testimonies of the police officers. I note that statements made by the police officers in the court cannot be rejected merely on the ground that the statements are made by persons belonging to the police force. This cannot be a reason for me to discard and not accept these statements. In Aher Raja Khima v. State of Saurashtra , (1955) 2 SCR 1285 it has been held that:
SC No. 201/14 State vs Vinod @ Sheelu (Page 14 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act " . ...The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
The case of the prosecution cannot be rejected only on the ground that independent witnesses have not been examined, in case on appraisal of the evidence on record the court finds the case of the prosecution to be trustworthy. It has come in the evidence of the prosecution witnesses that an attempt was made to join person from public at the time of search but none was available. In the face of it mere absence of independent witness at the time of search and seizure will not render the case of the prosecution unreliable."
32. Law is not that testimonies of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimonies of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy . In this regard help can be taken from the decision of the cases reported as JT 1996(3) SC 120, JT 1999 (2) SC 388, (2001) 1 SCC 652 and AIR 1995 SC 1930.
33. Further, the ballistic report ExPW5/C tells that the improvised pistol (desi Katta) is a fire arm and SC No. 201/14 State vs Vinod @ Sheelu (Page 15 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act found to be in normal working order. The report in respect of cartridges is that they were successfully test fired. Accused has not disputed the aforesaid report.
34. As per section 39 of the Arms Act , no prosecution can be initiated against any person in respect of any offence u/s 3 of the Arms Act without the previous sanction of the District Magistrate. The said sanction ExPW5/D is also on record. Accused has not taken any dispute to that sanction also. It is evident that sanction ExPW5/D has been accorded by then Adll DCP.
35. In the light of my aforesaid discussion, I have no difficulty to arrive at a conclusion that arms and ammunition were recovered from the possession of the accused , which were seized vide seizure memo ExPW2/C and ExPW2/D. Ballistic report also support the story of the prosecution. All the memo's stands proved. Accordingly, ingredients of section 25 Arms Act stands established.
36. Here it is pertinent to mention that accused has been charged for the offence u/s 27/54/59 Arms Act also on the allegations that he used the aforesaid fire arms and had fired at Pawan Kumar@ Kala (PW2) . As SC No. 201/14 State vs Vinod @ Sheelu (Page 16 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act indicated herein above the possession of arms and ammunition stands established but material is not sufficient to hold that said arm i.e desi katta was used by the accused. Prosecution has failed to connect the aforesaid arm with the firing in question. PW2 Pawan Kumar @ Kala has failed to identify the accused as a person who has fired towards him. In these circumstances, the ingredients of section 27 Arms Act remains unproved.
37. In the present case, prosecution has miserably failed to prove the case against the accused beyond shadow of doubt qua the offence u/s 307 IPC and u/s 27 Arms Act . However, prosecution has been successful in establishing the guilt of the accused in respect of offence u/s 25 Arms Act . Consequently, accused Vinod @ Sheelu stands acquitted for the offence u/s 307 IPC and u/s 27 Arms Act and stands convicted for the offence u/s 25 Arms Act.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 17.12.2014 ASJ-5, North
Rohini Court
SC No. 201/14 State vs Vinod @ Sheelu (Page 17 of 19 )
D.O.D 17.12.2014 FIR No. 222/2014
P.S Alipur
u/s 307 IPC & 25/27/54/59 Arms Act
FIR No : 222/14
P. S : Alipur
u/s 307 IPC
25/27/54/59 Arms Act
17.12.2014
Present : Sh Ashok Kumar Ld Adll, PP for state.
Accused Vinod @ Sheelu produced from JC. Ms Neeru Nagpal, ld Amicus Curiae for the accused.
Statement of accused u/s 313 CrPC recorded . Accused submits that he does not want to lead any evidence in his defence.
Final argument heard.
Vide my separate judgment announced in the open court today, accused Vinod @ Sheelu stands acquitted for the offences u/s 307 IPC and u/s 27 Arms Act. However, he stands convicted for the offence u/s 25 Arms Act.
Argument on the point of sentence heard.
Ld counsel for the convict submit that convict is the only bread earner of his family and made a request to take a lenient view. She further stated that accused has been in JC for near about ten months.
On the other hand, ld Adll PP for state submits that appropriate sentence may be awarded to him .
Accused has been convicted for the offence u/s 25 Arms Act only. Prosecution has failed to prove the case qua offences u/s 307 IPC and u/s 27 Arms Act. Keeping in view the over all facts and circumstances of the present case and the social, economical and educational background of the convict, convict Vinod @ Sheelu is sentenced One year R.I along with SC No. 201/14 State vs Vinod @ Sheelu (Page 18 of 19 ) D.O.D 17.12.2014 FIR No. 222/2014 P.S Alipur u/s 307 IPC & 25/27/54/59 Arms Act fine of Rs 500/- in default of payment of fine, five days S.I for the offence u/s 25 Arms Act .
(2)Fine not paid.
Benefit of section 428 CrPC shall be given to the convict for the period already undergone by him during the trial, as per rules.
Copy of the judgment and order on sentence be given to the convict free of cost.
File be consigned to record room after necessary compliance.
(Rajesh Kumar Goel) ASJ-05,North,Delhi /17.12.2014 SC No. 201/14 State vs Vinod @ Sheelu (Page 19 of 19 )