Delhi District Court
State vs Akalbir @ Akhil on 31 January, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : KARKARDOOMA COURTS, DELHI
SC No.07/2012
Unique Case ID No.02402R0365772011
FIR No.217/2010
Police Station Mayur Vihar
U/s 307/427 IPC and 27 Arms Act.
State Versus Akalbir @ Akhil
S/o Sh. Ved Ram @ Vedu
R/o Chilla Village, Mayur
Vihar PhaseI, Delhi.
Date of Institution : 13.02.2012
Date of judgment reserved : 18.01.2014
Date of judgment : 30.01.2014
JUDGMENT
The Police of police station Mayur Vihar has filed the present chargesheet against accused Akalbir @ Akhil in FIR No. 217/2010, under Section 307/427 IPC and 27 Arms Act. 2 Briefly stating the case of prosecution is that on 10.06.2010, DD No.73B was received in the police station regarding firing on which SI Nagender Singh (PW13) along with Ct. Lokesh SC No.07/2012 State Vs. Akalbir @ Akhil Page 1 of 34 (PW8) reached the spot in Chilla Village. ASI Kali Charan (PW4) and PSI Manoj Kumar (PW7) were already found present at the spot. Victim Satpal (PW3) got his statement Ex.PW3/A recorded to SI Nagender Singh (PW13). In his statement, complainant Satpal stated that on 10.6.2010, he was sitting in a hall along with his father after having taken meal. The hall in which they were sitting was being used by Satpal and his elder brother Akalbir as a passage for their house. Accused Akalbir used to obstruct the complainant from taking his vehicle from the said passage regarding which a dispute had earlier ensued between them. On 10.6.2010 at about 10.30 PM, while complainant was sitting with his father, accused came out from his house and started abusing him and grappling with him. He somehow freed himself from the clutches of accused and ran towards his house, on which accused uttered that he would finish him that day. Accused fired a shot at the complainant from the pistol he had and chased him. Complainant went inside his house. Accused fired from his pistol several times by standing opposite to the house of complainant. One of the bullets hit the front windscreen of complainant's Santro Car No.DL 3C AQ 1924 and another bullet hit the windowpane, as a result of which the windowpane and windscreen of the car broke. SC No.07/2012 State Vs. Akalbir @ Akhil Page 2 of 34 Complainant rang the police at number 100. He has stated that accused fired at him with a view to kill.
3 Information to the crime team was given.
Complainant Satpal pointed out his brother/accused Akalbir who had fired upon at him. He was apprehended and on his search, one automatic pistol was recovered from his right dub of wearing jeans pant. On opening the pistol, one cartridge was found in the chamber and two live cartridges were found in the magazine of the pistol. Sketch Ex.PW3/B of live cartridges Ex.P2 and pistol Ex.P1 was prepared. Same were seized vide seizure memo Ex.PW3/D. In the meantime, crime team headed by Inspector Rajesh Sinha (PW2) reached the spot along with photographer. PW2 prepared his report Ex.PW2/A. During inspection of spot, four shells and lids of the cartridges were recovered from Santro car and outside it. Sketch Ex.PW3/C of shells Ex.P3 and lids was prepared and same were into possession vide memo Ex.PW3/E. Place of incident was got photographed.
4 IO (PW13) made endorsement Ex.PW13/A on the statement of the complainant and prepared rukka. PW1 HC Dinesh Kumar recorded FIR Ex.PW1/B and made his endorsement Ex.PW1/A SC No.07/2012 State Vs. Akalbir @ Akhil Page 3 of 34 on the rukka. IO prepared site plan Ex.PW3/G. Santro car bearing No.DL 3CAQ 1924 was seized vide memo Ex.PW3/F. Accused was arrested vide arrest memo Ex.PW3/H1 and his personal search was conducted vide memo Ex.PW3/H2. Accused made disclosure statement Ex.PW8/A. Exhibits were deposited in malkhana vide entries Ex.PW12/A. Exhibits were sent to FSL and report of the ballistic expert is Ex.PW11/A. PW10 Asif Mohd. Ali, Additional DCP accorded sanction Ex.PW10/A under section 39 of the Arms Act. Since damage had been caused to the car, penal section 427 IPC was added.
5 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
6 After hearing Ld. Counsel for the accused and Ld. Addl. PP for the State, charge under Section 307/427 IPC apart from charge under Section 27 Arms Act were framed against the accused on 19.03.2012 to which he pleaded not guilty and claimed a trial. 7 In order to prove its case, prosecution has examined SC No.07/2012 State Vs. Akalbir @ Akhil Page 4 of 34 13 witnesses. PW3 Satpal is the complainant and PW5 Sh. Ved Ram @ Vedu is his father. PW6 Smt. Nukul is the wife of PW3 Satpal. PW1 HC Dinesh Kumar, PW2 Inspector Rajesh Sinha, PW4 ASI Kali Charan, PW7 SI Manoj, PW8 Ct. Lokesh, PW9 HC Bir Singh, PW10 Asif Mohd. Ali, the then Addl. DCP, PW12 HC Anil Kumar and PW13 SI Nagender Singh are the police witnesses. PW11 Sh. V.R. Anand is the ballistic expert.
8 After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded in which he has denied the case of the prosecution in toto and has stated that he has been falsely implicated in the present case. He has examined himself as DW1.
9 I have heard. Ld. Addl. PP for the State and Ld. Counsel for accused. I have meticulously gone through their submissions and material available on record.
Occurrence 10 Case of the prosecution is that on the day of incident, while the complainant was present and was talking with his father, accused came there, abused him, beat him and fired gun shots at him. 11 To prove its case, prosecution has examined the SC No.07/2012 State Vs. Akalbir @ Akhil Page 5 of 34 complainant Satpal as PW3. Satpal has stated that he was residing in H.No.60, Village Chilla, Mayur Vihar, Phase1, Delhi along with his wife and children. He was running cable business from his house. On 10.06.2010 at about 10.30 p.m., he came out from his house after having dinner. He joined his father Sh. Ved Ram who was sitting in the hall situated near the common passage for PW3 as well as for his brother accused Akalbir @ Akhil. PW3 was talking with his father. Accused used to cause hindrance whenever PW3 passed from the common passage and on that issue, altercations between them had taken place number of times. Accused used to stop his vehicle from passing from the common passage. At about 10.30 p.m. when PW3 was talking with his father, accused came out of his house, started abusing him, started giving beatings to him and challenged that he would finish him. Accused also said that he would see PW3, his supporters and would not allow anyone to use the common passage. PW3 escaped from the clutches of accused and went towards his house. Meanwhile, accused followed PW3 and fired upon him from backside. PW3 reached on the door of his house where his wife Smt. Nukul was also present. On seeing accused Akalbir firing on PW3, his wife immediately dragged him inside the house by pushing him inside SC No.07/2012 State Vs. Akalbir @ Akhil Page 6 of 34 and the bullet struck against the front glass of his Santro Car No. DL3C AQ 1924. Accused again fired upon PW3 and the bullet struck against glass of window of his house. Accused had fired upon him in order to murder him. PW3 rushed upstairs of his house and immediately called the police at No.100.
12 The complainant further stated that PCR van reached the spot. Accused went to his house to save himself from police. Local Police of PS Mayur Vihar also reached. His statement Ex.PW3/A was recorded bearing his signatures at point A. He pointed out accused to the police and he was apprehended. Police took formal search of accused and a pistol was recovered which was found containing live cartridge. Four used cartridges were lifted from the car and his house. Crime Team was called. IO prepared sketches Ex.PW3/B and Ex.PW3/C of Pistol, live cartridges and used cartridges. Pistol and cartridges were converted into pulandas and were seized vide memos Ex.PW3/D and Ex.PW3/E. His Santro Car was also seized vide memo Ex.PW3/F. At his instance, site plan Ex.PW3/G was prepared. The spot was photographed by the Crime Team. Accused was arrested and his personal search was conducted vide memos Ex.PW3/H1 and Ex.PW3/H2. The complainant has SC No.07/2012 State Vs. Akalbir @ Akhil Page 7 of 34 stated that 26 photographs of the spot were taken by the Crime Team. 13 The Santro Car was got released on superdari and was identified in the Court by the complainant. He has also identified the pistol as Ex.P1; cartridges, empty shells and lids which were live at the time of recovery as Ex.P2; cartridge shells and broken lids recovered from the spot as Ex.P3.
14 During cross examination by Ld. Addl PP, the complainant (PW3) admitted that one live cartridge was found in the chamber of pistol Ex.P1 while two live cartridges were recovered from the magazine of the pistol. Total 3 live cartridges recovered from the pistol which was recovered from accused.
15 During cross examination by ld defence counsel, the complainant stated that house in which he was residing was purchased by his father and partition had taken place 5 or 6 years ago. His father was residing in the portion occupied by the accused. He as well as accused was doing cable business. He had filed a civil suit bearing No.172/2012. He denied that accused had entrusted some part of his business to him. He also denied that he had worked for accused prior to issuance of his license. License was obtained two years back, whereas partition of house had taken place about 56 years back. He SC No.07/2012 State Vs. Akalbir @ Akhil Page 8 of 34 admitted that he put his signatures on his statement. The people of locality came to him after the incident. There were two rooms on the front side of his house with two staircases. Both the staircases were situated near the place where the car was parked. House of accused was adjoining his house on one side and factory on the other side. He denied that the way leading to his house and house of accused was being owned by accused. Accused fired upon him from the distance of about 20 feet. He was given beatings in the area falling between his house and house of accused. His wife came to rescue him. At the time of first firing, PW3 and his wife were standing parallel to each other. There was one fired shot by accused which hit his car and he continuously fired till PW3 entered his house. Accused fired while standing outside entry gate of house of PW3. Accused fired about 4 shots. PW3 entered the room falling towards other side of car. At the time of last fire, accused was not visible to him. Police reached after 20 minutes of the incident and his statement was recorded after 3040 minutes of the incident. His wife was present at that time. Crime Team arrived after sometimes. Accused was present in his house at the time of reaching the police. He denied that no quarrel had taken place or that no incident of firing had taken place. He also denied that SC No.07/2012 State Vs. Akalbir @ Akhil Page 9 of 34 he had cooked up a story to falsely implicate the accused to settle the score arising out of civil dispute or to compel him to settle the civil proceedings in his favour.
16 PW6 Smt. Nukul, wife of the complainant, in her statement has corroborated the testimony of PW3 Satpal. She has stated that accused Akalbir is her jeth (brotherinlaw) who was residing adjacent to their house and the passage to her house as well as house of the accused was same. Accused used to stop them from passing through the passage leading to her house and on that issue, there had been quarrel several times between her husband and accused. On 10.06.2010 at about 10.00 or 10.30 p.m., her husband (PW3) had gone to her fatherinlaw and was talking with him for sorting out the issue of passage. Meanwhile, accused Akalbir came out from his house; he firstly abused her husband and then started beating him. Accused is deposed to have also challenged Satpal by saying "dekhta hoon, tu aur tere parivar wale is raste se kaise nikalte hain" (lets see how you and your family members pass through this passage). She managed to get her husband free from the clutches of accused and brought him to her house. Meanwhile, accused took out a pistol and by pointing the same towards her husband, fired number of bullets but SC No.07/2012 State Vs. Akalbir @ Akhil Page 10 of 34 she somehow pushed her husband to save him from the bullets and thus the bullets could not hit him. However, the bullets struck against Santro car No.DL 3CAQ 1924 belonging to her husband. One bullet struck against window attached with the door of their house and thus window glass got broken. Accused had assaulted her husband and fired upon him and her to kill them. Police was informed by her husband; police reached and enquiries were made from her husband; statement of her husband was recorded and case was registered. 17 In her crossexamination by Ld. defence counsel, PW6 has stated that at the time of firing, accused came from the side of his residence and at that time her fatherinlaw was sitting in the hall situated between both the portions. One bullet hit on the wind screen of the car facing toward the house of accused Akalbir. She has stated that the vehicle was registered in the name of her father in law but was being used by them. The children remained at the first floor throughout the incident. She further stated that her father in law did not intervene when accused beat her husband. She has stated that beating continued for a short time. Accused Akalbir remained at the spot since abusing till firing. The vehicle was parked along the wall of the room inside the house. She has also stated that she rushed to the SC No.07/2012 State Vs. Akalbir @ Akhil Page 11 of 34 room straightway from the spot.
18 The complainant (PW3) in his testimony has categorically stated that when he was talking with his father Ved Ram in the hall, accused came there. Accused firstly abused the complainant and then gave beatings to him. When complainant managed to free from the clutches of the accused and was going inside his house, accused took out a pistol and fired gun shots on him, which hit the car of the complainant as well as window glass of his house. In his whole testimony, complainant (PW3) remained affirmed on his stand that it was accused who fired gun shots at him with a view to kill him. Even in his cross examination, he has given the description as to where where he, accused, his father and car were present at the time of incident when he was confronted with the site plan Ex.PW3/G. He has also stated that the incident had also been witnessed by his wife and it was his wife, who pushed him inside the house so as to save him from the fired bullets. So, from the testimony of complainant, it has duly been established that accused fired gun shots at him with a view to commit his murder, but the gun shots did not hit him. 19 Testimony of complainant (PW3) has duly been corroborated by his wife PW6 Smt. Nukul. She has stated that she was SC No.07/2012 State Vs. Akalbir @ Akhil Page 12 of 34 present at the place where her husband (PW3) was talking with her father in law. She had seen that accused came there, abused her husband and then gave beatings to her husband. When she was taking away her husband to the house, accused fired gun shots from the pistol at her husband which could not hit the complainant (PW3), rather hit their car and window glass of their house. The defence has tried its level best to make out a case that this witness was not present at the spot and that no such incident of firing had taken place, but this witness (PW6) has specifically identified accused being the person who fired at her husband on the day of incident. Her testimony remained unshaken and she stuck to her stand that it was accused who attempted to commit murder of her husband (PW3) by firing gun shots at him.
20 The statement of Incharge crime team Inspector Rajesh Sinha (PW2) also corroborates the testimony of complainant (PW3). PW2 has stated that on the night intervening 10/11.06.2010 at about 12 midnight, he along with crime team consisting of photographer and finger print proficient reached at the spot i.e. house of Satpal in Chilla Village. The scene of crime was inspected. Photographs of the spot were taken and he prepared the crime visit SC No.07/2012 State Vs. Akalbir @ Akhil Page 13 of 34 report Ex.PW2/A and handed over the same to IO. In his cross examination, PW2 stated that it took about 45 minutes for inspection of the spot. So long as he remained at the spot, shells and pieces of lids were neither sealed nor taken into possession. 21 Report Ex.PW2/A of PW2 Inspector Rajesh Sinha shows that at the scene of crime, there was a white Santro Car No.DL 3CAQ 1924 and bullet had entered the car through the front glass. One distorted bullet was found on the dashboard of the car. There was a hole in the driver seat as well as on the back seat in the middle. Empty bullets were found in front and back of the car. In the back room also, bullets were found. Broken window and wire mess with hole caused by the bullets were also found.
22 The report Ex.PW2/A and the testimony of PW2 Inspector Rajesh Sinha corroborates the testimony of complainant (PW3) to the effect that gun shot was fired at the spot. As per report Ex.PW2/A, used cartridge and shells were found inside the car as well as outside the car near the house of the complainant. So, this report also proves the case of prosecution that firing incident at the spot had taken place.
23 Seizure memo of fired bullets Ex.PW3/E also SC No.07/2012 State Vs. Akalbir @ Akhil Page 14 of 34 establishes that bullets were fired at the spot on the day of incident. This memo Ex.PW3/E shows that shells and lids of the fired bullets were found by the IO at the spot which were seized and sealed vide this memo. Even the sketch Ex.PW3/C of fired bullets Ex.P3 also proves that bullets were fired at the spot and their shells and lids were recovered there from.
24 It has been argued by the Ld. Defence counsel that the testimony of complainant and his wife cannot be relied upon to convict the accused as another alleged eye witness of the incident i.e. PW5 Sh. Ved Ram @ Vedu, father of the complainant and accused has not supported the case of prosecution.
25 I have gone through the testimony of PW5 Sh. Ved Ram @ Vedu. It is apparent that he has not supported the case of prosecution and was declared hostile by the prosecution. During cross examination by Ld. Addl. PP for the State also, this witness has not stated anything that he had witnessed the firing incident by he accused. But the fact which cannot be ignored is that this witness has stated that there were some differences between both his sons i.e. accused Akalbir and complainant Satpal on the issue of passage where accused used o park his car and block the passage for Satpal. He has also stated that SC No.07/2012 State Vs. Akalbir @ Akhil Page 15 of 34 about 2 or 2½ years back at about 10.00/11.00 p.m., he heard the noise of quarrel and he woke up. He saw that the person who had taken up quarrel with his son Satpal was not there. So, the testimony of PW5 cannot be ignored totally and from his testimony, it has also been corroborated that there was dispute between complainant and accused on the issue of passage. It has also come in the testimony of this witness that on the day of incident someone had a quarrel with his son Satpal i.e. complainant.
26 It is the case of prosecution that the weapon used by the accused i.e. pistol Ex.P1 in the commission of crime was recovered from him when he was apprehended from his house. PW13 SI Nagender Singh has deposed that when he reached the spot, he made enquiry from Satpal and recorded his statement Ex.PW3/A. Crime team collected empty cartridges and destroyed bullets. He lifted four empty cartridges from the spot and seized them vide seizure memo Ex.PW3/E after preparing their sketch Ex.PW3/C. He apprehended accused at the instance of the complainant and on his formal search, one pistol Ex.P1 was recovered from jeans pant worn by him. The pistol was checked and was found containing one live cartridge in its chamber and two live bullets in its magazine. He prepared sketch SC No.07/2012 State Vs. Akalbir @ Akhil Page 16 of 34 Ex.PW3/B of recovered pistol and cartridges and seized the same vide seizure memo Ex.PW3/D. He prepared rukka and got the case registered. Accused made disclosure statement Ex.PW8/A; car was seized vide seizure memo Ex.PW3/F; accused was arrested vide memo Ex.PW3/H1 and his personal search was conducted vide memo Ex.PW3/H2. He prepared site plan Ex.PW3/G. 27 The testimony of IO SI Nagender Singh (PW13) also corroborates the testimony of complainant (PW3) that gun shots were fired on the day of the incident at the scene of crime. As per testimony of IO, he seized shells and lids from the spot. He has also stated that after apprehension of accused, pistol with live cartridges were recovered from him. This also proves the case of prosecution that at the time of incident, accused was having pistol with which he fired gun shots at the complainant.
28 The report Ex.PW11/A of ballistic expert (PW11) shows that improvised pistol recovered from accused was found to be in working condition and test fire was successfully conducted from it. Report further shows that three live cartridges which were recovered from the accused could be fired from the same pistol. Deformed bullets also corresponded to the cartridges of 7.65 mm of which SC No.07/2012 State Vs. Akalbir @ Akhil Page 17 of 34 caliber the pistol was. Live cartridges were test fired successfully from the pistol. The individual characteristics of firing pin mark and breech face marks present on the fired cartridges recovered from the spot and on test fired cartridge cases were compared and were found to be identical and thus, the recovered fired cartridges from the spot were opined to have been fired through the improvised pistol recovered from the accused.
29 The above report Ex.PW11/A of ballistics expert also establishes the case of prosecution that the pistol Ex.P1 recovered from the accused was the same with which the bullets were fired at the complainant as the report says that the recovered fired bullets from the spot were having identical marks when the recovered live cartridges were test fired from the pistol.
30 I have gone through the ratio of judgment of Hon'ble Apex Court in State of Maharashtra Vs. Kashirao and others 2003 VII AD (SC) 146 = AIR 2003 SC 3901 in which it was held that in offence under section 307, all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted.
SC No.07/2012 State Vs. Akalbir @ Akhil Page 18 of 34 31 In view of the above discussion, from the testimony of complainant (PW3) which is unshaky and consistent, it has been established that on the day of incident accused fired gun shots at him. Testimony of complainant (PW3) has duly been corroborated by his wife PW6 Smt. Nukul, report Ex.PW2/A of crime team incharge Inspector Rajesh Sinha (PW2), recovery memo of fired bullets from the spot, site plan, recovery memo of pistol/live cartridges from accused and the report Ex.PW11/A of ballistics expert. Consequently, it is held that the prosecution has successfully established that on the day of incident, accused fired a gun shot on complainant Satpal (PW3) with a view to kill him.
Intention & Knowledge 32 Intention and knowledge of a culprit to commit a crime is to be gathered from the circumstances brought on record. In the judgment titled as State of M.P. Vs. Kashiram & Ors. 2009 AIR (SC) 1642, the Hon'ble Supreme Court has observed that whether there was intention to kill or knowledge that death will be caused, is a question of fact and would depend on the facts of a given case. The determinative question is intention or knowledge, as the case may be, and not the nature of injury.
SC No.07/2012 State Vs. Akalbir @ Akhil Page 19 of 34 33 In the present case, the intention and knowledge of the accused to commit the murder of complainant Satpal (PW3) has been established from the testimony of complainant (PW3) himself who has specifically deposed that on 10.06.2010 at about 10.30 p.m., when he was having a talk with his father, accused came there; abused him; beat him and when he was going inside his house, fired gun shots at him. He also stated that the said gun shots could not hit him, rather hit his car No. DL 3CAQ 1924 and window glass of his house. Testimony of complainant (PW3) has duly been corroborated by his wife PW6 Smt. Nukul who was present at the spot and has witnessed the incident with her own eyes.
34 The intention and knowledge of the accused to commit the murder of complainant is apparent from the fact that he was armed with a deadly weapon i.e. pistol and he fired several gun shots from the same on the complainant. Four fired cartridges Ex.P3 were seized from the spot vide seizure memo Ex.PW3/E and their sketch Ex.PW3/C was prepared. Three live cartridges Ex.P2 and pistol Ex.P1 were recovered from the person of accused which were seized vide seizure memo Ex.PW3/D after preparing their sketch Ex.PW3/B. SC No.07/2012 State Vs. Akalbir @ Akhil Page 20 of 34 35 I have also gone through the judgment of Hon'ble Apex Court in case of Hari Singh Vs. Sukhbir Singh and Others (1988) 4 SCC 551 in which it has been discussed as to what the court has to see in order to bring the offence under section 307 IPC. It has been held that under section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Under Section 307 IPC, intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. 36 The acts committed by the accused i.e. firing gun shots from the pistol has also been corroborated by the report of Ballistics Expert Ex.PW11/A. This report proves that the recovered live cartridges were successfully test fired and the shells recovered from the spot were of same caliber of 7.65 mm. As per report Ex.PW11/A, pistol, live cartridges as well as shells recovered from the spot were arms and ammunition as defined in Arms Act. There is no dispute with regard to sanction Ex.PW10/A granted by PW10 Sh. Asif Mohd. Khan, the then Addl. DCP for prosecution of accused under SC No.07/2012 State Vs. Akalbir @ Akhil Page 21 of 34 section 39 of Arms Act. So, the prosecution has successfully established that the accused intended to commit murder of the complainant (PW3) while firing gun shots at him and had knowledge that by firing gun shots, it would definitely result into death of complainant.
Offence U/s 27 Arms Act 37 The accused has also been charged for possessing pistol and cartridges while attempting to commit the murder of complainant (PW3) which he used in firing at him. 38 The complaint/ statement Ex.PW3/A of complainant (PW3) has duly been exhibited and proved by the prosecution. Even the complainant has narrated the incident while deposing in the Court and his testimony has duly been corroborated by his wife and other evidence produced on records.
39 Report Ex.PW11/A of the ballistics expert (PW11) shows that live cartridges were of same caliber as that of recovered pistol of 7.65 mm and test fires were successfully conducted with the recovered pistol. The shells recovered from the spot were also found to be of the same caliber and as per opinion of PW11, recovered fired shells from the spot were having identical marks with the test fired SC No.07/2012 State Vs. Akalbir @ Akhil Page 22 of 34 bullets. He has also opined that the pistol as well as live cartridges and shells/lids recovered from the spot were arms and ammunition as defined in Arms Act.
40 So, from the statement of complainant, testimony of other witnesses and report of ballistic expert, it has duly been established that accused Akalbir was in possession of improvised pistol and cartridges without any license or permit at the time of incident with which he fired a gun shot at complainant(PW3). Offence u/s 427 IPC 41 Accused has also been charged for offence U/s 427 IPC for committing mischief by causing damage to car as well as window pane of the complainant by firing gun shots. 42 To prove this fact, complainant has specifically deposed that on the day of incident, accused firstly abused him and then started beating him. He escaped himself from the clutches of accused and went towards his house. Meanwhile, accused followed him and fired at him from backside. His wife Smt. Nukul, on seeing that accused was firing on him, immediately dragged him inside the house and bullets struck against the front glass of his car No. DL 3C AQ 1924. He also deposed that accused Akalbir again fired upon him SC No.07/2012 State Vs. Akalbir @ Akhil Page 23 of 34 and the bullet struck against glass of window of his house. He also deposed that his car was seized vide memo Ex.PW3/F. 43 Testimony of the complainant(PW3) has been corroborated by his wife Smt. Nukul(PW6). She deposed that on the day of incident, she saw that accused firstly abused and then beat her husband. She managed to get her husband free from the clutches of accused Akalbir and brought her husband to her house. Meanwhile, accused took out pistol, pointed same towards her husband, fired number of bullets but some she pushed her husband to save him from bullets, therefore, bullets could not hit her husband. However, bullets struck against Santro Car No. DL3C AQ 1924 belonging to her husband and one bullet struck against window attached with the door of their house and window glass was broken.
44 Report Ex.PW2/A of Inspector Rajesh Sinha(PW2), Crime Team Inchage, has also corroborated the fact of damage being caused to the car and window of the house of the complainant. In this report, it is specifically mentioned that in car No. DL3C AQ 1924, bullet entered through front glass and one distorted bullet was found on its dash board. There was a hall on the driver's seat and also on the back seat. Broken window and wire mess with hole caused by bullet SC No.07/2012 State Vs. Akalbir @ Akhil Page 24 of 34 impact was also found.
45 Seizure memo Ex.PW3/E prepared by IO also proves that the damage was caused to the car as one fired cartridge was found inside car No. DL3C AQ 1924, one fired cartridge was found on the seat of car and one fired cartridge was found on its dash board. One distorted bullet was also found inside the room of the complainant. Seizure memo of car Ex.PW3/F also proves that when it was seized, it was found that one bullet pierced the front glass of car. 46 It has been argued by ld defence counsel that the car in question was not owned by the complainant, therefore, no offence U/s 427 IPC is made out against accused.
47 Though it is admitted case of the complainant himself that he was not the owner of the said car, but he and his wife have stated that same was owned by PW5 Sh. Ved Ram but the said car belongs to them as they were using it. I have gone through the definition of "mischief" as provided in section 425 IPC. Explanation 1 to section 425 IPC provides that it is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause or knows that he is likely to cause wrongful loss or SC No.07/2012 State Vs. Akalbir @ Akhil Page 25 of 34 damage to any person by injuring any property whether it belongs to that person or not.
48 In the present case, as per testimony of complainant(PW3), it has been duly proved that accused caused wrongful loss and damage to his Santro Car as well as to the window glass. Testimony of complainant has duly been corroborated by his wife (PW6), seizure memos Ex.PW3/E and Ex.PW3/F as well as from the report Ex.PW2/A of Crime Team Incharge. There is no force in the contention of ld defence counsel that since the car in question was not owned by the complainant and no case against accused U/s 427 IPC is made out, in view of above discussion.
49 Thus, prosecution has successfully established its case against accused that he has committed mischief by causing damage to the car as well as window glass of the complainant. Defence 50 The defence taken by the accused is that he has been falsely implicated in the present case as the complainant wanted to have path through his house. The family property was already divided by his father into two parts, having separate entry gates. The complainant used to pick up quarrels to enter through the gate placed SC No.07/2012 State Vs. Akalbir @ Akhil Page 26 of 34 in his portion. It is argued by ld defene counsel that the defence taken by the accused has also been supported by the suit filed by the complainant against accused for permanent injunction. He has filed certified copy of file of civil suit No. 172/2012 titled Satpal vs. Akalbir @ Akhil, pending in the Court of ACJ(East).
51 To probabilise his defence, accused has examined himself as DW1. In his testimony, he has deposed that he had been running the cable business since 1993. Complainant Satpal used to take up quarrel with him with regard to passage of entrance in the house. The family property was divided into two parts by his father and both the parts had their own separate entry gate. Complainant used to pick up quarrel with him after taking alcohol. His property and gate is covered by a hall and complainant insisted to enter through that gate placed in his portion. On the day of alleged incident, he came back home at about 10 p.m. and went to sleep. Thereafter, he did not know what happened. His door was knocked and police entered his house. He has stated that he has been involved in the present case as complainant wants to have passage through his house. He has been falsely implicated.
52 In his cross examination, accused has admitted that a SC No.07/2012 State Vs. Akalbir @ Akhil Page 27 of 34 civil suit was filed by the complainant in the year 2012. He has also admitted that car bearing No.DL 3CAQ 1924 registered in the name of his father was being used by his brother/complainant Satpal. 53 Though, it has been stated by the accused that a civil suit for permanent injunction was filed by the complainant against him in Civil Court and he has also filed the certified copy of that civil suit, but pendency of such proceedings between the parties can not justify the criminal act of accused. In the present case, it has duly been established beyond reasonable doubt that accused attempted to commit murder of his brother i.e. complainant Satpal by firing gun shots at him.
Conclusion 54 The prosecution has successfully established on record beyond reasonable doubt that on the day of incident i.e. 10.06.2010, accused Akalbir @ Akhil came out of his house and attacked the complainant. He firstly abused the complainant and then gave beatings to him. When the complainant managed to flee from the accused, he followed him and fired gun shots at him. Thus, an attempt was made on the life of the complainant by accused, though no bullet hit the complainant.
SC No.07/2012 State Vs. Akalbir @ Akhil Page 28 of 34 55 The complainant (PW3) has narrated the incident candidly and imputed the allegations to the accused that he fired gun shots at him but escaped from gun firing by entering his house. The testimony of the complainant has duly been corroborated by his wife Smt Nukul (PW6) who had also witnessed the incident of firing of gun shots by accused with her own eyes. She has stated that she was present at the spot when accused fired on his husband (PW3). She has also stated that when she managed to get her husband free from the clutches of accused, accused took out pistol and fired gun shots at her husband which hit the car as well as window glass of her house. Testimony of both complainant as well as of PW6 Smt. Nukul is natural and trustworthy and the defence has failed to put any dent on it. 56 Firing of gun shots by accused on the day of incident has also been corroborated by the report Ex.PW2/A of the Crime Team Incharge. The seizure memo of fired bullets and car also proves the case of prosecution that gun shots were fired on the day of incident. It has also been duly established that improvised pistol and live cartridges were recovered from the accused. The report of Ballistics Expert Ex.PW11/A proves that the pistol as well as live cartridges recovered from accused were arm and ammunition as per SC No.07/2012 State Vs. Akalbir @ Akhil Page 29 of 34 Arms Act. This report further proves that recovered fired cartridges from the spot were having identical marks when compared with test fired cartridges, which were recovered live from accused. The pistol recovered from accused was also found in working order. 57 It has further been established by the prosecution that the accused intended to commit murder of the complainant (PW3) while firing gun shots at him and had knowledge that by firing gun shots, it would definitely result into death of complainant. The accused was armed with a deadly weapon i.e. pistol and cartridges which were arms and ammunition as per Arms Act and he used the same by firing at the complainant which establishes that he had intention to commit his murder and had knowledge that firing of gun shots would result into death of Satpal.
58 Prosecution has further established from the testimony of complainant, testimony of other witnesses and report of ballistic expert that accused Akalbir was in possession of improvised pistol and cartridges without any license or permit at the time of incident with which he fired a gun shot at complainant (PW3). It has also been established that accused caused damage to the car of the complainant as well as to the window glass of his house.
SC No.07/2012 State Vs. Akalbir @ Akhil Page 30 of 34 59 Consequently, in view of above discussion, accused Akalbir @ Akhil is hereby held guilty for the commission of offence punishable under Section 307/427 IPC and 27 Arms Act. Accused is convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 30.01.2014 District & Sessions Judge(East)
Karkardooma Courts, Delhi
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IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI SC No.07/2012 Unique Case ID No.02402R0365772011 FIR No.217/2010 Police Station Mayur Vihar U/s 307/427 IPC and 27 Arms Act.
State Versus Akalbir @ Akhil
S/o Sh. Ved Ram @ Vedu
R/o Chilla Village, Mayur
Vihar PhaseI, Delhi.
ORDER ON SENTENCE
Vide my judgment dated 30.01.2014, convict Akalbir @ Akhil has been convicted for the commission of offence punishable under Section 307/427 IPC and 27 Arms Act.
2 I have heard Ld. Addl. PP for the State as well as Ld counsel for convict on the point of sentence.
3 The learned Addl. PP for the State has argued that the convict has committed serious crime o attempt to commit murder of his own brother Satpal. It is further submitted that with a view to commit his murder, convict fired several gun shots at his brother but he somehow escaped from gun fire. It is further argued that convict SC No.07/2012 State Vs. Akalbir @ Akhil Page 32 of 34 has also committed mischief by causing damage to the property of the complainant. Apart from this, convict has used a pistol and thus has been held guilty U/s 27 Arms Act. He has submitted that the maximum punishment provided under the law be awarded to the convict and he deserves no leniency.
4 On the other hand, learned counsel for convict has submitted that convict is aged abut 40 years, having 3 school going children. Admittedly father of the convict is also residing with him. He has a wife and sister in law to look after. He has no previous criminal antecedents. He is running a cable business which is completely dependent upon him. It is submitted that though firing of gun shots at the complainant has been proved but no injury has been caused to him. It is prayed that a lenient view be taken in awarding sentence to him.
5 In view of above mentioned facts and circumstances, convict Akalbir @ Akhil is sentenced as under:
(i)Convict is sentenced to three years RI and fine of Rs. 25,000/ for the offence punishable under Section 307 IPC. In default of payment of fine, he shall further undergo SI for six months.
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(ii)Convict is also sentenced to one year RI and fine of Rs. 10,000/ for the offence punishable under Section 427 IPC. In default of payment of fine, he shall further undergo SI for one month.
(iii)Convict is sentenced to three years RI and fine of Rs. 25,000/ for the offence punishable under Section 27 Arms Act. In default of payment of fine, he shall further undergo SI for six months.
6 All the sentences of imprisonment shall run concurrently. The convict shall be entitled for the benefit of Section 428 of Cr.P.C. Amount of fine be released to the complainant/victim Satpal, if realised. Copy of the judgment and order on sentence be given free of cost to the convict.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 31.01.2014 District & Sessions Judge (East)
Karkardooma Courts : Delhi
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