Delhi District Court
State vs . Arvind Kumar on 18 January, 2011
1
State Vs. Arvind Kumar
FIR No. 958/05
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Sessions Case No. : 66/09
FIR No. : 958/04
Police Station : Uttam Nagar
Under Sections : 307 IPC r/w Section 25/54/59 Arms Act
State Versus : Arvind Kumar
S/o Sh. Shemsher
R/o - H.No.11, Shiwani Enclave,
Raju Ext. Kakrola, Uttam Nagar,
Delhi.
Details (a) Date of Committal ....... 6.9.2005
(b) Date of Institution ....... 7.1.2005
before this Court
(c) Date on which reserved 3.1.2011
for Judgment
(d) Date of Judgment ......... 18.1.2011
(e) Final Order ......... Convicted u/s 307
IPC & Acquitted
u/s 25/54/59
Arms Act
2
State Vs. Arvind Kumar
FIR No. 958/05
JUDGMENT
1. The prosecution has filed the charge sheet under section 173 Cr.P.C against the accused Arvind for committing offence as punishable under section 307 IPC read with section 25/54/59 Arms Act.
(b) Succinctly stating the case of the prosecution is that on 05.11.2004 at about 6.30 a.m, the complainant Shadab along with his brother Shoaib Zameer was going on his motor cycle to his office and when they reached at Old Palam Road, in front of Prince Electrical at Kakrola, Uttam Nagar, Delhi, the accused Arvind came from the opposite direction on a bicycle & gave a signal to them to stop whereupon Shadab stopped. It is further the case of the prosecution that the accused came near who took out one country made pistol from beneath his shirt and fired at Shadab who received serious injuries and was immediately shifted to hospital by his father and brother Shoaib while the accused fled away from the spot. It is further the case of the prosecution that on the next day i.e on 6.11.2004, Shoaib Zameer saw the accused Arvind in the DDA Park, Sector 14, Dwarka, Delhi and immediately informed the police officials at police post Matiala whereupon the Investigating Officer along with 3 State Vs. Arvind Kumar FIR No. 958/05 other police officials reached there and apprehended the accused and at his instance , in pursuance of his disclosure statement, the country made pistol along with cartridge was recovered after which further necessary investigation was conducted and after completion of the investigation, charge-sheet under section 173 Cr.P.C. was filed in the court of concerned Ld. M.M who after compliance of necessary legal provisions under section 207 Cr.P.C, committed the case to the Court of Sessions and my Ld predecessor vide order dated 08.12.2005, served the charge on the accused Arvind for committing offences as punishable u/s 307 IPC read with section 25/27 Arms Act to which he had pleaded not guilty and claimed trial.
2. Prosecution, in support of its case has examined sixteen witnesses in all namely Sh. Shadab Zameer (injured) as PW1, Zameer Ahmed (his father) as PW2, Const. Yashpal as PW3, ASI Ramesh Chander as PW4, Ct. Paras Ram as PW5, HC Banwari Lal as PW6, Shoaib Zameer (brother of injured Shadab as PW7, Dr. Uday Kumar Singh as PW8, SI Ashok Kumar as PW9, HC Nasib Singh as PW10, Const. Subhash as PW11, ASI Satbir Singh as PW12, Dr.Shaifali Jain as PW13, Dr.Uday Kumar Singh as PW14, HC Rich Pal as PW15 and Sh.Puneet Puri as PW16 and 4 State Vs. Arvind Kumar FIR No. 958/05 thereafter, the statement of the accused was recorded under section 313 Cr.P.C wherein he submitted that he is innocent and has been falsely implicated by the complainant/injured Shadab Khan as Shadab used to tease sister of his neighbour Shambu on which Shadab and Shambhu fought and when he intervened, Shambu managed to run way while Shadab Khan falsely implicated him in this case. The accused has preferred not to lead any evidence in defence.
3. I have heard final arguments as advanced by Shri Shiv Kumar, Ld APP for State and Advocate Sh. S.K.Sharma, Ld. counsel for the accused and have given my thoughtful consideration to the rival submissions made by them. I have also carefully gone through the material as placed on record.
4(a). Ld. APP has vehemently argued that the injured Shadab and his brother Shoaib Zameer have been examined by the prosecution who have supported the case on all material aspects and their testimonies have also been sufficiently corroborated not only by each other but by their father Sh.Zameer Ahmed (PW2) as well as by the MLC of Shadab which un-erringly points out that the accused had 5 State Vs. Arvind Kumar FIR No. 958/05 shot at Shadab in the manner as alleged due to which he sustained dangerous injuries on his person and had he been not taken to the hospital immediately and given treatment in time, he would have died.
(b) Ld. APP has further argued that entire investigation was fairly conducted during which not only the accused Arvind was arrested but even the country made pistol used by him in commission of said offence alongwith cartridges was recovered from his possession in pursuance of his disclosure statement which that he had kept without any license or permission from the competent authorities.
(c) Ld. APP has also submitted that since prosecution has succeeded in bringing home the guilt of accused Arvind on record beyond reasonable doubt, hence he must be convicted for committing the offence as punishable under section 307 IPC read with section 25/27/54 Arms Act.
5. (a) Ld. Defence counsel has vehemently rebutted the same contending that the injured Shadab and Shohaib are interested witnesses being brothers whose statements have not been 6 State Vs. Arvind Kumar FIR No. 958/05 corroborated by any independent witnesses though, many were present and even at the time of recovery of katta and cartridges from the accused, the police officials did not join any public person which render the case of prosecution doubtful.
(b) He has further submitted that there is no reason as to why injured was brought to his house by his brother Shoaib, who should have directly taken him to the hospital.
(C) He has further argued that the injured Shadab has falsely implicated the accused Arvind due to enmity and also that he has not identified the case property i.e his clothes and as such there was no marks of any gun shot injuries on them and hence, it is quite doubtful if at all he was wearing the said shirt on that day.
(d) Ld. Defence counsel has further averred that as such no motive has been attributed to the accused to cause alleged injuries on the person of Shadab and infact, Shadab had an altercation with Shambu as Shadab used to tease his sister and when the accused Arvind intervened, Shambu managed to escape from the spot and Shadab has falsely implicated the accused in this case.
(e) Ld. Counsel for the accused has prayed that since the accused Arvind has been falsely implicated and prosecution has miserably failed to bring home guilt of the accused, hence he must be 7 State Vs. Arvind Kumar FIR No. 958/05 acquitted of the charges leveled against him.
6. Ld. APP in rebuttal has submitted that though Shadab and Shoaib are real brothers, yet it does not caste any doubt regarding the genuineness of the case of the prosecution or on their versions and simply because no public witness has been examined, the same does not collapse the case of the prosecution. He has also averred that as Shadab and Shoaib are material witnesses being injured and complainant who are eye witnesses of the occurance who have deposed before the court in a very truthful manner and their versions have nowhere been shaken. He has further submitted that it is not always not necessary that there has to be a strong motive all the time and sometimes due to trivial quarrels, such incidents take place and absence of motive does not indicate that no such incident can ever occur. He has further submitted that infact the case property which was initially shown to the injured did not belong to him as they were not his clothes but were that of his brother, however, later on, the case property was correctly identified by the injured Shadab. Ld. APP submits that the case of prosecution stands proved against the accused, hence, he must be convicted for committing alleged offences.
8State Vs. Arvind Kumar FIR No. 958/05
7. In the present case, the most material witnesses as examined by the prosecution are the injured Shadab Zameer (PW1), his brother Shoaib Zameer (PW7) who is the complainant and an eye witness of the occurrence as well and was also instrumental in getting the accused arrested and their father Zameer Ahmad (PW2) who had also accompanied them to hospital, hence, their testimonies are discussed on priority.
8(a). Shadab (PW1) has testified on oath that on 05.11.2004, he along with his younger brother Shoaib Zameer (PW7) was going to his office on his motor cycle No. DL-ISP-1866 which he was driving and after crossing the gali, when he had just approached the main road which is called as Old Palam Road, the accused Arvind came from the opposite side on his bicycle who signaled him to stop and since he had been knowing the accused by face, so he stopped his motor cycle. He further deposed that the accused got down from his cycle, lifted his shirt, took out one pistol and fired at him in his chest as a result of which he got unconscious and was taken to DDU hospital by his brother Shoaib (PW7) and father Zameer Ahmed (PW2). He has identified the T-Shirt and vest as Ex.P1 and 9 State Vs. Arvind Kumar FIR No. 958/05 Ex.P2 and also contended that he was also wearing a shirt also but it was not found in the parcel though it was seized. However, during the reexamination by Ld. APP, he has correctly identified his shirt, T shirt and vest.
(b) During cross examination on behalf of accused, he has interalia stated that the high neck full sleeves T shirt Ex.P1 (which were initially wrongly shown to him by the prosecution had no piercing marks on the back side. He also stated that the occurrence took place at a distance of about ½ k.m from his house and though there were shops and residential houses nearby but the shops were not open being early hours. He has elaborated that the accused came from his right side and signaled him to stop from a distance of about 15-20 feet and has further clarified that after receiving injuries, he was conscious, though he got dis-balanced. He has also stated that his brother did not run after the accused nor made any efforts to catch hold of him.
He has also mentioned that though he had an altercation with his neighbour Sanju but denied if it was due to his closeness with his sister. He had stated that as such he had no enmity with the accused nor knew his name prior to the incident and stated that while 10 State Vs. Arvind Kumar FIR No. 958/05 he was being shifted to the hospital, his brother was driving the motor cycle and he was sitting in between his father and brother. He has categorically denied if somebody else had fired at him or that the accused has been falsely implicated in this case.
9(a). Shoaib Zameer (PW7) has testified that on 5.11.2004 at about 6.15 a.m, he along his brother Shadab (PW1) has left the house for going to Mayapuri on motor cycle (Hero Honda Passion Plus) which was driven by his brother Shadab (PW1). He further testified that at about 6.30 a.m, when they reached at the Old Palam Road near prince Electronics, the accused Arvind came on bicycle and gave signal to his brother to stop the motor cycle and accordingly his brother stopped on which the accused came close to them and took out a katta from the dub and threatened that he will not spare him (Shadab) and fired at him due to which his brother Shadab sustained injuries in his chest and his grip over the handle of the motor cycle got loosened and the motor cycle fell down and in the meantime, the accused managed to flee away from the spot.
He has further testified that thereafter, he escorted his brother and brought him back to the house from where, he along 11 State Vs. Arvind Kumar FIR No. 958/05 with his father (PW2) took him to the DDU Hospital. He has also proved on record his statement as recorded by the police official as Ex.PW7/A and also stated that the accused was residing in the same locality. He has further testified that he also took the investigating Officer had gave to the place of occurance and at his instance, the Investigating Officer prepared the site plan Ex.PW7/B and he had also handed over the blood stained T shirt of his brother Shadab to him which was seized vide memo Ex.PW7/C. He further testified that on 6.11.2004, he had seen the accused at the DDA park , Sector 14 Dwaraka whereupon he immediately informed to the investigating officer who reached at the spot and apprehended the accused had and though, the accused tried to escape but he did not succeed.
He has proved on record the arrest memo and personal search memo of the accused as Ex.PW7/D and Ex. PW7/E respectively and his disclosure statement as EX.PW7/F wherein the accused admitted his guilt and previous enmity with his brother Shadab over cricket match. He further testified that the accused had also led the police party to his house at Shivaji Enclave and from the trunk, kept in his room, he got recovered one pistol and four cartridges out of which three were live and one was fired/blank, in which regard, the Investigating Officer had prepared the sketch 12 State Vs. Arvind Kumar FIR No. 958/05 Ex.PW7/G and also converted them into pullanda and sealed them with the seal of AK and seized vide memo Ex.PW7/H. He has also proved on record, the pointing out memo as Ex.PW7/J and the identified clothes i.e. T-shirt and vest as Ex.P3 and Ex.P4. He has also identified the country made pistol , test fired cartridge and other live cartridges, one fired/blank cartridge as Ex.P5 to Ex.P9 respectively.
(b) During cross examination on behalf the of accused, he has inter alia denied if he did not accompany his brother on the motor cycle at the time of occurrence or that due to firing of shot by the accused on his brother, cartridge had come out of his body. He has volunteered that the cartridge was struck up at the back side of his body. He had also stated that his brother had not got unconscious after the injury and he had not tied his injury with cloth and stated that he took his brother to the house which was at a distance of about half km which took about 15-30 minutes on foot. He had also stated that he did not make any effort to chase the accused or to catch hold of him as he was busy in looking after his injured brother, however, he raised alarm but since no shop was open so none came to his rescue. He has also explained that his clothes also got 13 State Vs. Arvind Kumar FIR No. 958/05 blood stained from the injuries of his brother while he was taking him to the hospital and his brother was sitting in between him and his father. He denied that a person must fell down after receiving such injury.
He had also explained that when on the next day, he saw the accused in the DDA Park of Sector-14 Dwarka, he immediately proceeded to the concerned Police Post Matiala, which took him about 15-20 minutes and the accused did not see him. He reiterated that the accused on seeing the police officials tried to run away but he was overpowered and he was taken to the spot by which, time the shops were open but no shopkeeper was joined as a witness. He had fairly stated that there were many houses near the house of the accused and none from the locality was joined as a witness prior to the recovery. He has categorically denied if the accused did not commit the alleged offence or did not shot at his brother in his chest or was not arrested in his presence.
10(a) In the present case, Zameer Ahmed (PW2-father of the injured) is also a material witness who has testified that on 5.11.2004, both his sons (Shadab and Shoaib) had left for their jobs on motor cycle together at about 6.15 /6.30 am and at about 7.30 am, 14 State Vs. Arvind Kumar FIR No. 958/05 his son Shoaib came back to the house who was holding Shadab who was bleeding from his chest whose clothes were also blood stained hence they took him to the hospital on the motor cycle driven by his son Shoaib and was also informed by them that Arvind had shot at Shadab on his chest. He has also deposed that he did not know the accused Arvind prior to the incident.
(b) During cross examination on behalf of accused, he has denied if it was Shadab and not Shoaib who had disclosed that the accused Arvind had shot at Shadab. He has further denied if on the day of occurrence, Shadab alone had left the house on the motor cycle.
11. In the present case, at this juncture it would also be appropriate to discuss the testimony of Dr. Uday Kumar Singh (firstly examined as PW8 and then again examined as PW14) who has testified that on 5.11.2004, he had medically examined Shadab vide detailed MLC Ex.PW8/A wherein he had also mentioned the injuries in detail and has further testified that they were caused by fire arm. He has further testified that one entry wound was present over the epigastic area (upper central part of abdomen 15 State Vs. Arvind Kumar FIR No. 958/05 area) and its size was approximately 3x 5.5 cm peritonial deep and also that there was blackening around the wound and had also further observed that margin was abraded and inverted. He has further mentioned that one exit wound was also present over posterolateral aspect of left side lower chest and its size was approximately 1.5 x 1 c.m and was enquiry deep and has also deposed that after preparation of MLC, the patient was referred to the Department of Surgery. He has also proved on record the nature of said injuries as dangerous as opined by Doctor Vinod at point D.
(b) During cross examination on behalf of the accused, he has stated that he could not tell the distance from which the injured was shot at but the possibility of firing from a short distance from the fire arm was not ruled out. He has also stated that the blackening around the wound was due to gun powder smoke.
(c) Dr. Shaifali Jain (PW13) has proved on record the X-ray report of the injured Shadab as prepared by doctor Hetinder as Ex.PW13/A.
(d) During cross examination by Ld. Defence counsel, she stated that the cause of injury was not mentioned in the X-ray.
16State Vs. Arvind Kumar FIR No. 958/05
12. Sh.Puneet Puri (PW16-Senior Scientific Officer, Ballastics, FSL) has testified that on 19.1.2005, three sealed parcels two of which were sealed with the seal of A.K and the third parcel was sealed with the seal of CMO, DDU hospital was received in the office of FSL whose seals were intact which were as per the specimen seals. He has also testified that first parcel contained one country made pistol of .303 inch bore and one .303 inch cartridge which were marked as Ex.F1 and EC1, the second parcel contained three .303 inch cartridges which were marked as Ex.A1 to A-3 and the third parcel contained one full sleeves shirt which was marked as Ex.C1 and it was having two holes i.e one hole marked as H1 was on the front side and the other hole was marked as H2 was on the back side. He has further deposed that one baniyan marked Ex.C2 was also having two holes , one hole marked as H3 was on the front side and other hole marked H4 was on the back side. He has further deposed that on examination, the said country made pistol .303 inch marked Ex.F-1 was found in working order. He has further testified that the test fire was conducted successfully by using the cartridge marked Ex.A1 and the test fired cartridge case was marked as TC1. He has further deposed that the .303 inch cartridge case marked Ex.EC1 was fired 17 State Vs. Arvind Kumar FIR No. 958/05 cartridge which was fired from the country made pistol .303 inch bore marked as Ex.F1 as the individual characteristics of firing pin marks present on Ex.EC1 and on test fired cartridge case marked as TC1 were found identical when examined under the comparison microscope. He has also opined that the holes marked as H1 to H4 on the shirt and vest marked as Ex.C-1 and C-2 could have been caused by bullet discharged through a fire arm and the country made pistol marked Ex.F1 was a fire arm and the cartridges marked Ex.A1 to A3 and the cartridge case marked Ex.EC1 were ammunition as defined in Arms Act 1959. He has further testified that the exhibits were sealed with the seal of "PP FSL" and has proved his detailed report as Ex.PW16/A. He has also identified the country made pistol , the test fired cartridge, two live cartridges and fire/blank cartridge case as Ex.P5 to Ex.P9 respectively and has further identified the shirt and the baniyan as Ex.P16A and Ex.P16 B respectively.
(b) During cross examination on behalf of accused, he has categorically stated that individual marks were left by the firing pin on the percussion cap of the cartridge and on its basis he could say that a particular cartridge was fired from a particular weapon. He has 18 State Vs. Arvind Kumar FIR No. 958/05 denied if solely on the basis, of his experience, he had given opinion regarding the holes on the shirt and baniyan by analysing the gun shot residue particles on it and has further denied if he had given a vague report or that the said examination was done in a casual manner.
13(a) Constable Yashpal (PW3) was amongst the first police officials who came to know of the occurance as he was posted in the hospital as duty constable who has testified that on 5.11.2005, at about 7.15 a.m, the injured Shadab was brought to the BJRM hospital by Zameer Ahmed and after his MLC was prepared, the concerned doctor handed over him a sealed parcel which was duly sealed with the seal of CMO. He has further deposed that he had also telephonically informed at the police post Matiala and after about half an hour, ASI Satbir Singh arrived at the hospital to whom he handed over the said sealed parcel which he seized vide memo Ex.PW3/A.
(b) The accused or his advocate did not cross examine him on any aspect whatsoever despite opportunity given. 14(a) Constable Paras Ram (PW5) was working as the DD writer at the relevant time, who has deposed that on 05.11.2004, at about 6.40 a.m, he received an information from wireless that a 19 State Vs. Arvind Kumar FIR No. 958/05 person had been fired at the spot whereupon he recorded DD No. 44 and assigned it to HC Ashok (PW9) who left the police post alongwith constable Nasib Singh(PW10) and after some time ASI Satbir Singh (PW12) was also sent on the spot in connection with the said DD. He has further deposed that on the same day at about 7.20 am, he received another call from the duty constable ( Constable Yashpal -PW3) posted at DDU hospital regarding the admission of injured Shadab by his father (Zameer Ahmad) who had sustained bullet injury near MBD School, Najafgarh Road in which regard, he recorded DD No.45 and has proved the carbon copies of DD No. 44 and DD No. 45 as Ex.PW5/A and Ex.PW5/B respectively.
(b) The accused or his counsel did not prefer to cross examine the said witness despite opportunity afforded. 15 (a) In the present case ASI Ashok Kumar (PW9) is the initial investigating officer who along with constable Naseeb Singh (PW10) had reached at the spot who has inter-allia deposed that on 5.11.2004 at about 6.40 a.m, the present occurance took place and on receiving DD no.44, he reached at the spot where he came to know that the injured was shifted to the hospital by his father and brother. He has further testified that in the meantime, ASI Satbir Singh (PW12) also 20 State Vs. Arvind Kumar FIR No. 958/05 reached in pursuance of DD No.45 and since the injured was admitted in the DDU hospital, hence ASI Satbir Singh (PW12) went to the DDU hospital while leaving him and constable Naseeb Singh (PW10) at the spot and after some time, he came back again along with Shoaib Zameer (PW7) , prepared rukka and handed it over to constable Naseeb Singh (PW10) for the registration of the FIR and prepared the site plan at the instance of Shoaib Zameer . He has further testified that ASI Satbir Singh also got the spot photographed and in the meantime constable Naseeb Singh (PW10) came at the spot and handed over the copy of FIR and original rukka to the Investigating Officer who also seized the blood stained T shirt of full sleeves and vest of Shoaib converted them into pullanda and sealed them with the seal of AK after which the seal was handed over to constable Naseeb Singh (PW10)) and the said pullanda was seized vide memo Ex.PW7/C. He has identified the clothes of Shoaib as Ex.P1 and Ex.P2 consisting of one T shirt of full sleeves and, one baniyan .
(b) During cross examination on behalf of the accused, he has inter-alia stated that firstly he went to the spot from where he went to the house of injured and again came back to the spot. He has also stated that the s investigating officer had recorded statement of 21 State Vs. Arvind Kumar FIR No. 958/05 Shoaib at the spot itself in his hand writing and at the relevant time, father of injured was not present at the spot. He also stated that no empty cartridge was recovered from the spot.
1. HC Naseeb Singh (PW10) had accompanied SI Ashok Kumar (PW9) at the relevant time during initial investigation and his examination in chief is on the same lines as that of PW9, hence , it is not repeated for the sake of brevity. He has inter-alia testified that they had also searched for the accused, but did not succeed and when they went to the hospital (where injured was admitted) , Constable Yash Pal (PW3) handed them over the sealed pullanda consisting of clothes of the injured alongwith sample seal which the investigating officer seized vide memo Ex.PW10/A.
(b) During cross examination on behalf of accused, he has inter-alia stated that when he went for registration of the FIR, SI Ashok Kumar (PW9) did not accompany him and denied if he investigation was not conducted in the manner as deposed by him.
2. (a). ASI Ramesh Chander (PW4) has deposed that on 5.11.2004 at about 9.40 a.m, Constable Nasib Singh(PW10) had brought a rukka whereupon he registered the present FIR No. 958/04 and has proved its copy on record as Ex.PW4/A and has also deposed that further investigation of the case was entrusted to 22 State Vs. Arvind Kumar FIR No. 958/05 ASI Satbir Singh.
(b) During cross examination on behalf of the accused, he stated that it took about one hour in recording the said FIR.
3. ASI Satbir Singh (PW12) who is another investigating officer has testified that on 5.11.2004, he was posted at the police post matiala and on receiving DD No. 44, he reached at the spot where HC Ashok Kumar (PW9) and constable Naseeb Singh (PW10) met him and narrated the detailed investigation conducted by them as has already deposed by ASI Ashok Kumar (PW9) and Constable Naseeb Singh (PW10) which is not repeated for the sake of brevity. During, his examination in chief he has inter alia proved on record, the rukka as Ex.PW12/A whereupon FIR was registered. He has also proved on record the photographs which he himself obtained from the camera as Ex.PW12/A-1 to Ex.PW12-A-3 and their negatives as Ex.PW12/B-1 to Ex.PW12/B-3. He has also deposed that on 6.11.2004, Shoaib (PW7 brother of the injured) came police post Matiala who informed them that the accused was sitting in the DDA Park, Sector 14, Dwarka whereupon he along with constable Subhash (PW11) and Shoaib reached there and on the identification of Shoaib, he apprehended the accused Arvind though he tried to escape. He has also proved on record, 23 State Vs. Arvind Kumar FIR No. 958/05 the other detailed investigation as conducted by him in the present case and has also deposed on the lines of Shoaib Zamir, (PW7) , ASI Ashok Kumar (PW9) and constable Nasib Singh (PW10) and therefore for the sake of brevity, it is not repeated.
b) During cross examination on behalf of the accused, he has inter-alia stated that on the day of occurance, he had met the injured in the hospital and since he was in ICU and is not in a fit condition at that time to make the statement hence he preferred to get the FIR registered on the statement of eye witness ie Shoaib Zamir who was brother of the injured and was also a witness to the occurance. He has also stated that at the time of arrest of accused, he asked certain persons to join but they refused. He also stated that he completed the necessary proceedings regarding accused in the park itself from where he was arrested. He has also stated that the accused himself got recovered the country made pistol and the cartridges as kept by him in the iron box in the room of his house which not locked and denied if the same were planted by him.
19. (a) Constable Subhash (PW11) has deposed on the lines of ASI Satbir Singh (PW12), hence his testimony is not repeated for the sake of brevity. He has also identified the country made pistol as Ex.P5 the test fired cartridge as Ex.P6, two live cartridges as 24 State Vs. Arvind Kumar FIR No. 958/05 Ex.P7 and Ex.P8 and another test fired cartridge as Ex.P9.
(b) During cross examination on behalf of the accused, he inter-alia denied if he did not join the investigation and stated that the room from where the recovery of pistol and cartridge was effected at the instance of the accused was on the ground floor.
20. (a). HC Banwari Lal (PW6) has deposed that on 06.11.2004, he was working as MHCM at the police Station Uttam Nagar and on that day, SI Satbir Singh (PW12) had deposed three sealed parcels, out of which, two parcels were sealed with the seal of AK and one parcel was bearing the seal of CMO and has also deposed that one motor cycle No. DL-IST-1866 (Hero Honda) was also deposited in which regard, he made entry in register No. 19 at serial no. 3332. He has further deposed that on 19.1.2005, he had sent the sealed parcels containing country made pistol and cartridge and the clothes of the victim to the office of FSL, Madhuban Chowk through constable Richapl(PW15) vide RC No. 4/21 and has proved on record, the relevant entries in register no.19 as Ex.PW6/B and PW6/C respectively and has also deposed that so long as the case property remained in his possession, it was not tampered with.
(b) During cross examination on behalf of the accused, he has 25 State Vs. Arvind Kumar FIR No. 958/05 inter-alia stated that the entry showing the deposit of sealed parcels bearing seal of CMO, DDU hospital does not bear any remark against the said entry and volunteered that all the said parcels were entered at serial No. 3332 and the dispatch entry was made at one point and the entry of deposit extended into two pages.
21. (a) HC Rich Pal (PW15) has testified that on 19.1.2005, HC Ashok Kumar handed over him the sealed pullandas along with sample seal vide RC No.4/21/04 which he deposited in the office of FSL, Rohini and handed over the copy of the RC along with receipt of FSL to MHCM, Uttam Nagar. He further testified that there was no tempering with the pullanda till they remained in his custody.
(b) During cross examination by ld. Defence counsel, he stated that at the relevant time, HC Ashok Kumar was the investigating officer.
22. It would be appropriate to mention here that ASI Satbir Singh who is the investigating officer of the case has fairly conceded that he had never applied nor moved any application before the DCP concerned to seek permission/sanction under section 39 Arms Act though the country made pistol and live cartridges were also recovered at the instance of the accused 26 State Vs. Arvind Kumar FIR No. 958/05 Arvind from his possession.
23. In the present case, before proceeding further, it would be appropriate to discuss the relevant provisions of Section 307 IPC and section 25 of Arms Act :
(a) As per provisions of Section 308 IPC: " Whoever does any ct with such intention or knowledge, and under such circumstances that , if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned. "
(b) As per provision of Section 25 of the Arms Act " whoever has in contravention of a notification issued under section 24 A in his possession or in contravention of a notification issued under section 24 B carries or otherwise has in his possession , any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than three years, but which extend to seven years , shall also be liable to fine........"
24. (a) The prosecution has examined the injured Shadab Zamir (PW1) and his brother Shoaib Zameer (PW7) who is the complainant who were together at the relevant time as they were going to the office together on the motor cycle as driven by the 27 State Vs. Arvind Kumar FIR No. 958/05 injured Shadab Zameer (PW1) while his brother Shoaib Zameer (PW7) was the pillion rider. Both of them very categorically identified the accused Arvind to be the assailant who at the relevant time, came from the opposite direction on a bicycle and had asked Shadab Zameer to stop the motor cycle and since Shadab had been knowing the accused prior to the occurance being residing in the vicinity, hence he stopped the motor cycle whereupon the accused Arvind came near and without expectation of any body, he all of a sudden took out a katta from his dub and fired at Shadab Zameer from a very short distance as a result of which the bullet hit Shadab and he got injured and his brother Shoaib Zameer helped his brother Shadab Zameer and finding an appropriate opportunity, the accused managed to flee away from the spot.
(b) Now, so far as identity of the accused Arvind is concerned, both the said witnesses who are the eye witnesses of the occurace have been very categoric in identifying the accused Arvind to be the same person who had fired at Shadab on 5.11.2004 at about 6.30 am., while they were going to the office and despite lengthy cross examination on behalf of the accused, nothing is shown or even whispered that it was not the accused 28 State Vs. Arvind Kumar FIR No. 958/05 Arvind but some one else, who had fired at Shdab.
It also seems very natural and convincing that immediately after the occurance, Shoaib Zamir brother of the injured Shadab helped him and brought him to the house which was at a short distance from the spot from where, he alongwith their father Zameer Ahmed (PW2) took Shadab to the BJRM hospital on motor cycle and since Shadab had received injuries, so he was made to sit in between Shoaib and his father while going to the hospital and hence, there does not seem any improbability in it and the reason as to why Shoaib did not apprehend the accused immediately after the occurance is also explained as helping his brother was priority for him.
(c) Further , admittedly at the time of occurance, no public person had gathered at spot. There is no doubt regarding the case of the genuineness of prosecution as the witnesses i.e Shadab and Shoaib have very categorically testified that it was the month of November and the time was about 6.30 a.m and considering the season and the timing, not much of the public persons are expected to be on the road and admittedly , shops were also not open by that time and hence, no shopkeepers can be expected to witness the occurance. It cannot be lost sight of that the said occurance 29 State Vs. Arvind Kumar FIR No. 958/05 took place in a spur of moment for which the accused had pre- planned and he knew of his intentions and also as to what he was going to do and chose the time of early morning as being the neighbour, he was conversant with the timing of leaving of their leaving for office and in these circumstances, whether or not any public person was there, is immaterial considering the peculiar facts and circumstances of the case and also that the injured and the complainant have very categorically identified the accused to be the assailant who had fired at Shadab.
It is well settled law, that the where the eye witnesses of the occurance are interested persons or are the injured and the complainant, there should be corroboration of their evidence by independent witnesses cannot be of universal application. It is also well settled law that interested evidence is not necessarily un-reliable evidence and it cannot be laid down, if interested evidence can never form basis of conviction unless corroborated to a material extent in material particulars by independent evidence. In fact, all that is necessary is that evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution and it is not the number of witnesses that are examined by the prosecution nor the quantity of the evidence adduced by the 30 State Vs. Arvind Kumar FIR No. 958/05 prosecution that counts, but it is the quality of the evidence that matters and in the present case, no better witness or more creditable witness has been shown to be over ruled by the prosecution and testimonies of injured and complainant have nowhere been shaken regarding identity of the accused as well as regarding the overt act committed by him wherein he shot at Shadab. It is true that the injured and the complainant to an extent are interested witnesses in the present case being the victims there of, but that does not lead to the conclusion if they have falsely implicated the accused in committing of the said offence on the person of the injured as nothing is shown as to why they would be interested in implicating the accused in a false case leaving the real culprit go scot free . After careful scrutiny of their evidence on record, it is revealed that both of them, time and again have been very clear in identifying the accused to be the same person who had shot at the injured Shadab at the relevant time and the manner in which the accused had committed the said act has also been very categorically narrated by them in the court and though, both were cross examined at length on behalf of the accused, 31 State Vs. Arvind Kumar FIR No. 958/05 yet nothing is shown on record, if the injured and the complainant have not deposed about the true version of the occurance or if there is any artificiality or exaggeration in their depositions before the court or that they have falsely implicated the accused or that it was some one else who had fired at Shadab.. In fact, both the said witnesses have stood the test of cross examination well and there is nothing on record to disbelieve their versions and nothing is shown as to why their testimonies should be discarded and in the given circumstances, even if their versions are not corroborated by any independent public witness , the same does not collapse the case of the prosecution. It cannot be lost sight of that it is an admitted fact that it was in early morning of November that the said incident occurred and the public persons were not there and immediately after the occurance the complainant Shoaib Zammer was busy in taking care of his brother and it is proved on record that in the meantime, the accused managed to escape.
(d) It would be also appropriate to discuss here that Sh. Zameer Ahmed (PW2 father of the complainant and injured) has also supported the case of the prosecution on all material aspects 32 State Vs. Arvind Kumar FIR No. 958/05 and has lend sufficient corroboration to their versions that both his sons i.e the injured and the complainant had left to their offices on 5.11.2004 at about 6.30 a.m by motor cycle, however, after a short while they returned back as Shadab Zameer was injured and accordingly, he along with Shoaib Zameer took him to hospital promptly so that he could get immediate medication. He has been very fair in conceding before the court, that he did not witness the occurance and denied it on the day of occurance, only Shadab had left from the house alone on the motor cycle.
(e) It would also be appropriate to discuss in brief, the testimony of Doctor Uday Kumar Singh (PW14) even at the cost of repetition as he had medically examined the injured Shadab Zameer on 5.11.2004 vide detailed MLC Ex.PW8/A and has testified that injuries on the person of Shadab were caused by fire arm and one entry wound was present over epigastic area( upper central part of abdomen area) and its size was approximately 3x 5.5 cm peritonial deep and also that there was blackening around the wound and nature of said injuries were dangerous. During cross examination on behalf of accused , he is very clearly in stating that possibility of firing from a short distance could not be ruled out. In the given 33 State Vs. Arvind Kumar FIR No. 958/05 circumstances, Court is of the considered opinion that even the said doctor (PW14) has also lend sufficient corroboration to the versions of the injured,and the complainant regarding the manner in which the gun short injuries were inflicted on the person of Shadab injured and he has also emphasized that the said injuries were caused by a fire arm from a short distance and has accordingly, strengthened the versions of the injured and the complainant on material aspects.
(f) It would also be appropriate to discuss here that as per record, there is no delay in shifting the injured to the hospital or admitting him there for his treatment and accordingly, the possibility of manipulation in the MLC of the injured is absolutely ruled out and in these circumstances in view of report of the Doctor Uday Kumar Singh (PW14) , the contention of ld. Defence counsel that there were no marks of gun short injuries on the person of injured is totally falsified.
(g) It would be also appropriate to discuss here that the injured Shadab has very clearly identified his clothes in te court which he was wearing at the relevant time wherein there were holes of bullet at the place where he was shot at, hence, the contention of ld. Defence counsel that injured has not identified the case property 34 State Vs. Arvind Kumar FIR No. 958/05 and there were no marks of gun short injuries on them is further falsified.
(h) In the present case, Sh.Puneet Puri , FSL Expert has also proved on record that the clothes of the injured were having two holes one of which was on the front side and the other was on its back side and has also proved on record that the said country made pistol and the live cartridge are fire arms and also deposed that the said country made pistol was in working order and though, he was cross examined on behalf of accused, yet nothing is placed on record if the report Ex.PW16/A is not true or manipulated one or does not corroborate the versions of injured and complainant .
25. In so far as the defence of the accused, that he has been falsely implicated by injured Shadab Zameer due to enmity as Shadab was close to the sister of one Sanju whereupon, he and Sanju fought and when the accused intervened , Sanju escaped and he has been falsely implicated in this case is concerned, it would be pertinent to discuss even at the cost of repetition that the injured and the complainant namely Shadab and Shoaib have very clearly identified the accused Arvind to be the assailant who at the relevant time and place, had shot at the injured Shadab 35 State Vs. Arvind Kumar FIR No. 958/05 from the country made pistol when he was possessing which has also been corroborated by the evidence of their father as well as by the concerned doctor who had examined Shadab and by the report of FSL expert as gun short injury was found on the person of injured and clothes of the injured had marks of the bullet and as such testimonies of none of these witnesses have been shaken or shattered go far as identity of the accused Arvind is concerned and his firing at Shabad at the relevant time is established and accordingly, the so called defence of the accused regarding the falsely implication by Shabad does not inspire confidence of the court and does not seem convincing as man may tell lies but the circumstances do not and circumstances of the present case unerringly point out that it was accused Arvind who had fired at the injured from the fire arm.
It is also well settled law that when there is direct evidence regarding assault which worthy of credence and can be believed , the question of motive becomes more or less academic. Sometimes, the motive is clear and can be proved and sometimes the motive is shrouded in mystry and it is very difficult to locate the same. If the evidence of eye witness is credit worthy and can be believed by the court which has 36 State Vs. Arvind Kumar FIR No. 958/05 placed implicit reliance on it , then the question whether or not there is motive becomes wholly irrelevant.
26. Now, so far as the arrest of accused Arvind is concerned, from the testimony of the complainant Shadab Zameer (brother of the injured) , it is evident on the record that when he on the next day, he went in the DDA park, Dwarka he saw the accused whereupon he immediately reached to the concerned Police Post Matiala and informed the police officials, who promptly reached at the said park and despite the fact that on seeing them , though the accused tried to flee away, yet he was over powered . It is also shown on record that the necessary proceedings were conducted in the park itself and the disclosure statement was also made by the accused in pursuance of which he got the katta and cartridges recovered from almirah kept in room of his own house which as per law is admissible under section 27 of the Indian Evidence Act. The police officials who apprehended the accused Arvind and conducted the investigation have very clearly identified the accused who had made said disclosure statement and got recovered the country made pistol and cartridge from his house and through they were cross examined at length on behalf of the accused, yet nothing is shown if the accused was not apprehended in the manner 37 State Vs. Arvind Kumar FIR No. 958/05 as deposed by the prosecution witnesses or that the said katta and cartridge were planted upon him. It is an admitted fact that at the time of arrest of the accused, no public person was joined in the investigation however, sufficient explanation has been placed on record that the investigating officer had made efforts to join them as a witnesses but they had refused. However , at the time of recovery of country made pistol and cartridges from the room of the accused from an iron box kept in almirah , the investigating officer did not ask any person to join the recovery, yet considering the totality of the peculiar facts and circumstances the same is negligence on the part of the investigating officer and as such no benefit of that count can be extended to the accused. Considering in facts and circumstances of the case, it was the duty of the investigating officer to ask public persons to join recovery and if the investigating officer did not do so, it may be a lapse on his part, but on that count, no benefit can be extended to the accused However at this juncture, it would appropriate to mention that prosecution has fairy conceded that the investigating officer had never applied or moved any application before the DCP to seek permission under section 39 Arms act to prosecute the accused u/s 25 Arms Act though the country made pistol and 38 State Vs. Arvind Kumar FIR No. 958/05 live cartridge were admittedly recovered at the instance of the accused in pursuance of his disclosure statement.
27.(a) In the present case, ASI Ashok Kumar (PW9), Head Constable Naseeb Singh (PW10), Constable Subhash (PW11) and ASI Satbir Singh (PW12) have at various points of time had conducted or joined the investigation of the case which has already been discussed at length earlier and though these witnesses were cross examined at length on behalf of the accused, yet nothing is shown or placed on record that they have falsely implicated the accused in the present case or that he did not cause injuries on the person of Shadab in the manner as alleged or that he was not arrested on the next day in the manner as deposed by them. The police officials have proved on record all the necessary memos prepared during the course of investigation and there is not doubt if any of them manipulated . It is well settled law that no infirmity can be attached to the testimonies of the police officials merely because they belong to police force.
(b) Further it would be appropriate to mention there that constable Yashpal (PW3) and Constable Paras Ram (PW5) have not been cross examined by or on behalf of the accused Arvind and accordingly, the accused has fairly conceded the factum of 39 State Vs. Arvind Kumar FIR No. 958/05 admission of Shadab in injured condition in the hospital on 5.11.2005 at about 7.15 a.m by his father Zameer Ahmed (PW2) and has also conceded that DD no. 44 was recorded promptly and also that on the basis of the information given by PW3 from DDU Hospital , he had recorded DD No. 45 and it is shown that the investigating agency promptly came into motion whereupon HC Ashok (PW9) and constable Nasib Singh (PW10) reached the spot and afterwards ASI Satbir Singh (PW12) also reached there.
(c) In the present case, after careful scrutiny the evidence of the police witnesses, court is of the opinion that they have inspire confidence of the court and have also corroborated the versions of Shadab,Shoaib and other witnesses as examined by the prosecution on all material aspects. Nothing is shown if the present incident did not occur in the manner as shown by the prosecution.
28. In the present case, the testimonies of prosecution witnesses have been corroborated by each other on all material aspects and by the medical evidence as well and also by various documents prepared during the course of investigation which have been duly proved on record . There is nothing to show if the investigation was not fairly conducted or the the accused Arvind or did not commit the alleged offence of firing on the person of 40 State Vs. Arvind Kumar FIR No. 958/05 Shadab or he was not apprehended in the manner as shown. In the present case, through the various witnesses as examined by the prosecution as discussed above, the court is of the considered opinion that as per material placed on the record, the witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in as far as they have come forward with true and clear picture of the occurrence. The Presence of injured, the complainant and even that of the accused at the spot at the relevant time is proved on record and it is also established that it was the accused Arvind who had fired on the injured from the country made pistol and his intention and knowledge in committing such a grave act is revealed from his conduct itself and from the circumstances as well which reveal the manner in which he not only stopped the injured and complainant but shot at the injured . As per the record, the nature of injuries on the person of injured are proved to be grievous and dangerous and it is evident from the record that the offence committed by the accused was so grave that had the injured not received timely treatment, he could have died. After going through the entire material as placed on record, court is of the considered opinion that sufficient corroboration is on record to the ocular testimonies of the 41 State Vs. Arvind Kumar FIR No. 958/05 witnesses from documentary evidence. No artificiality or exaggeration is noticed in the case of the prosecution and the witnesses seem to have come forward with the true picture of the occurance. Accordingly, the accused Arvind Kumar is convicted for committing the offence punishable under section 307 IPC. However, keeping in view that the prosecution has not obtained nor even applied for obtaining the sanction or permission of DCP u/s 39 Arms Act to prosecute the accused under section 25 of the Arms Act and has fairly conceded that the investigating officer has never applied for it hence, due to the said technical lacuna, the accused Arvind is acquitted u/s 25/54/59 Arms Act. Let he be heard on point of sentence.
Announced in the open court on this 18th JANUARY, 2011 (BARKHA GUPTA) Additional Sessions Judge -
IV (Outer),Rohini District Courts Delhi