Delhi District Court
State vs . on 5 June, 2012
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 57/10
FIR No. : 116/10
P.S. : Prashant Vihar
U/s : 302 IPC & 27 Arms Act
Date of registration : 13092010
Reserved for Judgment on: 01062012
Judgment Announced on : 05062012
State
Vs.
Suresh Kumar
S/o Sh. Gurdayal Chand
R/o A2/95B, Lawrence Road,
Delhi.
JUDGMENT
1. Briefly stated the present case was registered on the statement of complainant Chandrabali Pandey who was appointed by SIS Security as Supervisor at NDPL Training Centre, Cenpeid, Sector11, Rohini, Delhi and used to live in a Sessions Case No. : 57/10 Page 1 of 28 2 room of training center and his duty hours used to be from 2:00 p.m to 10:00 p.m. According to the complainant on 642010, his reliever did not come so he had also been doing the duty from 10:00 p.m to 6:00 a.m.
2. According to the complainant deceased Susheel Bahadur Singh was deputed as a guard at the main gate from 10:00 p.m to 6:00 a.m and Gunman Suresh Kumar alonwith his double barrel gun was on patrolling duty in the complex from 7:00 p.m to 7:00 a.m. Both were deputed by the SIS Security.
3. According to the complainant there used to be quarrel between deceased Susheel Bahadur Singh and Gun Man Suresh Kumar and there was a quarrel between them on 642010, also at about 10:30 p.m. According to the complainant he separated them and went to check the other guards on duty. At about 2:00 p.m in the night complainant heard the sound of bullet. He rushed to the main gate and on reaching there he saw that gunman Suresh Kumar was standing in the varanda of guard room having his gun in his hand and deceased Susheel Bahadur Singh was lying on the floor of varanda in a pool of blood. According to the complainant gunman Suresh Kumar told him that deceased was disturbing him since many days so Sessions Case No. : 57/10 Page 2 of 28 3 today he killed him with the gun shot. In the mean time other guards also reached there. Complainant snatched the gun from the hand of gunman Suresh and guard Brajesh Pnadey made a call at No. 100 from the phone installed in the guard room. Inspector Sudhir Kumar with his staff reached there and complainant handed over the double barrel gun and Suresh kumar to him.
4. F.I.R. bearing No. 116/10 was registered at P.S. Prashant Vihar and investigation went underway. Accused was arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
5. On 04/10/2010, a charge U/s 302 IPC and U/s 27 of the Arms Act was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter on 10052012, the Ld. APP for the State requested for modification of the charge from Section 27 Arms Act to Section 30 of the Arms Act to which Ld. Amicus Curiae for the accused stated that she has no objection to the same. Therefore, Section 27 of the Arms Act mentioned in the charge dated 04102010, was directed to be read as Section Sessions Case No. : 57/10 Page 3 of 28 4 30 of the Arms Act.
6. In order to prove the guilt of the accused, the prosecution examined as many as 18 witnesses.
7. PW 1 Shri Brijsh Pandey deposed that on 642010, he was working as Guard at NDPL Training Center Sector 11 Rohini and on that day his duty hoiurs were from 10 p.m to 6 p.m. At about 2. am. in the night he heard sound of some bullet fire and he immediately rushed to the main gate and saw Sushil Bahadur Singh a guard lying in pool of blood and accused was also present there with gun in his hand. He identified the accused in the court. He further deposed that meanwhile Supervisor Chanderbali Pandey also came there. Accused had told that he had killed Sushil Bahadur Singh. Chander Bali Pandey took the gun from the hands of accused and then he telephoned the police at No. 100.
8. PW 2 Sh. Chanderbali Pandey is the complainant. He is a very material witness and I will discuss his testimony in the later part of the judgment.
9. PW 3 is Shri Rajesh and deceased Sushil Bahadur Singh was his brotherinlaw (Jija). He deposed that on 642010 he joined the inquest proceedings in mortuary BJRM Hospital Delhi Sessions Case No. : 57/10 Page 4 of 28 5 and identified the dead body of his jija vide his statement which he proved as Ex. PW 3/A.
10. PW 4 constable Suresh Kumar deposed that on 642010, ASI Nand Kishore received on DD No. 4 A and thereafter he alongwith him reachedthe spot i.e NDPL training Cente Sector11 Rohini and they saw the deadb ody of Gaurd Sushil Bahadur Singh lying outside the Guard Room.
11. He further deposed that there were bulled injury marks on the nexk of deceased Another guard whose name he does not recollect handed over one doiuble barren gun to the IO and got recorded his statement. IO checked the gun and he found one live cartridge and one shell (empty cartridge). IO prepared the sketch of the gun and cartridge and after meausrement he prepared ap arcel and afixed the seal of SS on the same. IO seized the said parcel vide seizure memo Ex. PW 2/B.
12. He further deposed that in the meanwhile constable Ratnesh reached there and he took the dead body of deceased to mortuary BJRM hospital as per direction of the IO. IO thereafter prepared the rukka which PW 4 took to PS andgot the case regisrtered and then returned to the spot with rukk and copy of FIR which he handed over to the IO. PW 4 identifiedthe double Sessions Case No. : 57/10 Page 5 of 28 6 barrel gun as Ex. P1 and the cartridges as Ex. P2 (12).
13. PW 5 constable Anand deposed that on 642010, on the direction of the IO of this case he got the accused Suresh medically examined from BSA hospital and after getting him medically examined he handed over custody of the accused as well as his MLC to the IO of the case.
14. PW 6 Ajay Kumar deposed that in the year 2010 he was branch head of SIS Security. Deceased Sushil Bahadur and accused Suresh were the employees of their agency. Accused Suresh was the Armed Gun man and deceased Sushil Bahadur was unarmed Security Guard. He further deposed that in the year 2010 accused Suresh and deceased Sushil Bahadur were posted in Cenpid NDPL Training Centre, Sector 11 Rohini. They were on duty on 542010 from 10 p.m to 5 a.m.
15. He further deposed that on 642010 he handed over the record of copy of duty register dated 442010 and 542010, pay slip of both the employees, photocopy of I card, Proof of employees of SIS India Ltd to the IO. He proved on record, record of duty roaster of Sushil and Suresh as Ex. PW 6/A running into four pages reflecting the attendance of Sushil on 442010 at point A in C Shift, on 542010 at point A in C shift, Sessions Case No. : 57/10 Page 6 of 28 7 on 542010 of accused Suresh at point B and on 442010 of accused Suresh in C shift respectively. He further proved on record copy of salary slip of Suresh Kumar and Sushil Bahadur as Ex. PW 6/B and Ex. PW 6/C. Copy of their recruitment in SIS India Ltd as Ex. PW 6/D and Ex. PW 6/E. Copy of ESI card of deceased Sushil as Ex. PW 6/F.
16. PW 7 constable Jitender Kumar supplied the copy of FIR to Ld concerned MM DCP and other senior officer of the police on 642010.
17. PW 8 is lady constable Asha. She deposed that on 622010 she was posted in police control room PHQ and on that day at about 2:41 a.m she received a telephone call that a guard has opened fire upon his colleague guard in sector 18, Rohini in NDPL Colony Training Center. She filled in the PCR form and information was passed over to the concerned operator. She proved on record the computerized PCR form in this regard as Ex. PW 8/A.
18. PW 9 constable Sandeep is the photographer. He took the photographs of the dead body from different angles. He proved on record the photographs as Ex. PW 9/A1 to Ex. PW 9/A 12 and the corresponding strip of the negatives as Ex. PW Sessions Case No. : 57/10 Page 7 of 28 8 9/A 13 collectively.
19. PW 10 is ASI Nand Kishore who on 642010, on receiving the information from duty officer regarding the incident of firing reached alongwith constable Suresh at Sector 11, NDPL Rohini where SHO alongwith his staff was already found present there. When he reached at spot he noticed a dead body having bullet injury on its neck and some blood was lying there. In the presence of PW 10 Inspector recorded the statement of incharge of guard name of whom he could not tell. Inspector also recorded the statement of that person incharge of guard and recorded the statement of supervisor (guard incharge) and got the case registered through constable Ratnesh.
20. PW 10 further deposed that SHO / IO called the crime team at spot. Photographer of crime team took the photographs of site and incharge of crime team inspected the site. Thereafter IO lifted blood gauze piece, earth control and blood stained earth from the spot and were sealed with the seal fo SS and were seized vide memo Ex. PW 10/A, Ex. PW 10/B and Ex. PW 10/C respectively.
21. He further deposed that prior to this supervisor of the guard handed over the gun and the accused was also found Sessions Case No. : 57/10 Page 8 of 28 9 present at the spot. IO unloaded the double barrel gun which was found containing one fired bullet and live bullet in the barrel. IO prepared the sketch of the gun and bullet, same was sealed with the seal of SS and was seized vide memo Ex. PW 2/B.
22. He further deposed that in the meantime dead body of deceased was sent to the mortuary BJRM hospital and accused was arrested vide memo which PW 10 proved as Ex. PW 10/D and his personal search was carried out vide memo which he proved as Ex. PW 10/E. Thereafter accused made his disclosure statement which PW 10 proved as Ex. PW 10/F. PW 10 further deposed that from the rear room of the gaurd room a neck tie having label of SIS having some spots of earth was sealed with the seal of SS and was seized vide memo Ex. PW 10/G and from the first room of guard room, a pair of shoes of black colour and a pair of blue colour socks were lying which were sealed with the seal of SS and were seized vie memo Ex. PW 10/H. PW 10 further deposed that seal after use was handed over to him. Thereafter he alongwith accused and case property came to PS and IO got deposited the case property eht HMC(M). At about 11 a.m /12 noon the son of accused came to PS who handed over the armed licence of gun to the IO which was seized vide memo Sessions Case No. : 57/10 Page 9 of 28 10 which PW 10 proved as Ex. PW 10/I. PW 10 identified the case property.
23. PW 11 SI Anil Kumar brought the armed licence No. NWKP/8/2008/32 issued in respect of Shri Suresh Kumar S/o Sh. Gurdial Dondial which was endorsed with 12 bore gun No. 1961396 valid up to 22082012. He further deposed that the armed licence has been suspended vide No. 3625962/ Additional CP Licensing /arms/SCN (Show Cause Notice) dated 892010. He proved the licence as Ex. PW 11/A and copy of show cause notice as Ex. PW 11/B.
24. PW 12 Inspector Sanjay Gade is the incharge crime team. He inspected the scene of crime and prepared his report. He proved on record his report as Ex. PW 12/A.
25. PW 13 Constable Ratnesh joined the investigation with the IO on 642010. In his custody Inspector Sudhir sent the dead body in the mortuary of BJRM Hospital where he got preserved the same. He deposed that after the postmortem the dead body was handed over to the relatives of the deceased. After the postmortem doctor handed over to him three sealed parcels sealed with the seal of KGBJRM alongwith sample seal which he handed over to the IO who had taken into possession Sessions Case No. : 57/10 Page 10 of 28 11 vide memo Ex. PW 12/A. The dead body which was handed over to the relatives of the deceased, IO executed the handing over receipt. The same is Ex. PW 12/B.
26. PW 14 SI Mahesh Kumar is the drafts man who on 1862010, visited the place of incident and on the instance of IO he took the rough notes and measurements of the spot and on the basis of those rough notes and measurements, he prepared the scaled site plan. He proved the same as Ex. PW 14/A.
27. PW 15 H.C. Dalbir Singh is the MHC(M). He deposed about the depositing of exhibits of the case in the malkhana and sending the same to the FSL (Rohini) and the relevant entries made by him in register No. 19. He proved on record the entry in register No. 19 at serial No. 2994 as Ex. PW 15/A. He also deposed that on 2362010 the exhibits of the present case were got deposited in FSL (Rohini) Vide RC No. 18/21 through constable Dalbir. He proved on record the copy of RC as Ex. PW 15/B. He further deposed that after depositing the exhibits, constable Dalbir handed over him the acknowledgments. He proved the copy of the same as Ex. PW 15/C and Ex. PW 15/D.
28. PW 16 Dr. K. Goel conducted the postmortem on the dead body of Sushil Bhadur Singh. He proved on record his Sessions Case No. : 57/10 Page 11 of 28 12 postmortem report as Ex. PW 16/A.
29. PW 17 is constable Balbir Singh Jaggi who on 2342010 on the direction of IO collected eight sealed parcels and two sample seals from MMC(M) alongwith FSL form vide RC No. 18/21 and deposited the same in FSL Rohini. After depositing the exhibits he handed over the acknowledgment to MHC(M).
30. PW 18 Inspector Sudhir Kumar is the IO of the case he unfolded the sequence of investigation done by him. He proved on record the sketch of both the cartridges (live and fired) and also the sketch of the DBBL prepared by him as Ex. PW 18/A, his endorsement on the statement of Chander Bali Pandey as Ex. PW 18/B, copy of formal FIR as Ex. PW 18/C, rough site plan of the plae of incident prepared by him as Ex. PW 18/D, copy of DD No. 4A dated 642010 as Ex. PW 18/E, request for postmortem as Ex. PW 18/F and brief facts collectively as Ex. PW 18/G, handing over memo of dead body as Ex. PW 18/H, FSL result as Ex. PW 18/J and Ex. PW 18/J1 and DD No. 5A and 6A dated 642010 as Ex. PW 18/K and Ex. PW 18/L.
31. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C was recorded and all the incriminating Sessions Case No. : 57/10 Page 12 of 28 13 evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated. No evidence in defence was led by the accused.
32. I have heard Ld. APP for the state and Ms. Bindiya Malhotra, Ld Amicus Curiae for the accused and have also gone through the records of the case.
33. It is submitted by the Ld. APP that on the basis of the evidence recorded and the material on record accused be convicted.
34. On the other hand, it is urged by the Ld amicus curiae for the accused that there are contradictions in the testimony PW 2 Sh. Chanderbali Pandey (complainant). She further urged that no finger prints were lifted from the gun. It is further urged that the deceased was shot while he was cleaning his gun.
35. The case is based on circumstantial evidence and the law as far as circumstantial evidence has been well settled. The principles of law governing the proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Hon'ble Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating Sessions Case No. : 57/10 Page 13 of 28 14 circumstance, circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime.
36. The above said principles deducible from the 5 principals of law laid down by the Hon' Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 which are as follows :
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra where the following observations were made:
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distacne between 'may Sessions Case No. : 57/10 Page 14 of 28 15 be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
HOMICIDAL DEATH
37. According to the prosecution Sushil Bahadur Singh died of a gun shot received by him on his neck. The testimony of PW 16 Dr. K. Goel who conducted the postmortem on the dead body and gave his report is Ex. PW 16/A. According to PW 16 on external examination of the dead body he found that there Sessions Case No. : 57/10 Page 15 of 28 16 was one big irregular lacerated punctured wound 5 cm. x 4 cm. in size over right side base of neck just above and adjacent to right clavicle. Margins were burnt, blackish with abraded collour. Initial tract of the wound was cheery red in colour. No other external injury was found on the body and on internal examination there was blood clots with cherry red discolouraton were seen all around right side neck. The right sided neck vessels, muscles and other soft tissues were extensively blasted out. There was one plastic wed and multiple lead pallets were recovered from the soft tissues of right side neck. There was fracture communition of right clavicle with clots. The right side area of sixth and seventh cervical vertebrae were extensively blasted out due to blast effect of fire arm with clots around. As per his opinion, the injuries were antemortem in nature caused by fire arm which was shot gun and range of fire arm was close range. He further opined that fire arm injury was sufficient to cause death in ordinary course of nature. So in view of the postmortem report and opinion of PW 16 it can be safely concluded that the death of Sushil Bahadur Singh was a homicidal death.
38. Now it is to be seen who had caused the death of Sushil Bahadur. According to the prosecution accused was Sessions Case No. : 57/10 Page 16 of 28 17 working as a gunman and used to have frequent quarrel with deceased Sushil Bahadur, who also used to work as unarmed security guard in the same establishment and was shot on 642010 by the accused. The relevant witnesses examined by the prosecution are PW 1, PW 2 and PW 6.
39. PW 6 was working as Branch head of SIS Security and according to him deceased and accused were employees of the agency. According to PW 6 accused was employed as armed gun man and deceased was working as unarmed security guard. He proved on record the attendance register as Ex. PW 6/A, which shows that on the day of the incident both i.e the deceased and the accused were on duty during the same shift. He also proved on record copy of salary slip of Suresh Kumar and Sushil Bahadur as Ex. PW 6/B and Ex. PW 6/C, copy of their recruitment in SIS India Ltd as Ex. PW 6/D and Ex. PW 6/E and copy of ESI card of deceased Sushil as Ex. PW 6/F.
40. This witness was not cross examined and his testimony has gone unrebutted and unchallenged. So from the unrebutted testimony of the PW 6 is is proved that :
(a) Both deceased and accused were the employees of SIS Security.
Sessions Case No. : 57/10 Page 17 of 28 18
(b) On the date of the incident they both were on duty at the same time.
(c) Accused was on duty as armed guard.
(d) And deceased was on duty as unarmed guard.
41. Having concluded this now it is to be seen whether accused committed murder of Sushil Bahadur.
42. PW 1 Brijesh Pandey was working as guard on 642010, at NDPL Training Center from 10 p.m to 6 a.m. At about 2 p.m he heard sound of bullet and he rushed to main gate and saw Sushil Bahadur lying in pool of blood and accused was present there with his gun in his hand. He further deposed that accused told him that he had killed Sushil Bahadur Singh. He further deposed that Chander Bali Pandey took gun from the hand of accused and he had called the police at No. 100. So PW 1 was the first one to reach the spot where he saw Sushil Bahadur lying on the ground and accused was present there with his double barrel gun. He has deposed that the accused confessed to having killed Sushil Bahadur.
43. This witness was cross examined and he denied that accused had not made any confession to him. He further denied that Sushil Bahadur tried to kill the accused and during Sessions Case No. : 57/10 Page 18 of 28 19 grappling the gun went off and Sushil Bahadur died. Otherwise, there is nothing in his cross examination to discredit this witness.
44. It was argued by the Ld. Amicus Curiae that according to PW 1 the gun shot was heard at about 2 a.m but according to PW 2 the gun shot was heard by him at about 9:45 p.m. According to Ld. Amicus Curiae this discrepancy is itself sufficient to discredit the testimony of these two witnesses. It is further submitted that PW 2 in his cross examination has stated that he had not heard the gun shot where as in his examination in chief he has stated that he heard the gun shot at 9:45 p.m.
45. PW 2 Chanderbali Pandey in his cross examination has admitted that he had not heard the gunshot and he came to the spot after receiving the news. So his hearing or not hearing the gunshot at a particular time becomes irrelevant. PW 8 Lady constable Asha deposed that on 622010, she was on duty from 8 p.m to 8 a.m in the police control room PHQ and at about 2:41 a.m she received a call that a guard has opened fire upon his colleague guard. And she filled in the PCR form which is Ex. PW 8/A. So from the testimony of PW 1 and PW 8 it is clear that the incident occurred between 2 a.m and 2:41 a.m.
46. Now as far as his presence is concerned, it is Sessions Case No. : 57/10 Page 19 of 28 20 corroborated by PW 1 who has deposed that PW 2 came to the spot and took the gun from the accused. The police had arrived at the spot. The presence of PW 2 is also proved by PW 10 ASI Nand Kishore. PW 10 has deposed that supervisor of guard handed over the gun, which fact has also been deposed by PW
1. PW 18 is the IO of the case who had reached the spot at 3 a.m. He has also deposed that PW 2 met him at the spot and handed over the gun to him which was seized. And this shows that PW 2 was there at the spot before 3 a.m and the estimated time of incident is between 2 a.m and 2:45 a.m. In his cross examination IO has deposed that accused, PW 2, ASI Nand Kishore, Brijesh and constable Suresh were present at the spot. So from the testimonies of these witnesses, it is clear that PW 2 was present at the spot though he had not heard the gun shot and came after receiving the news. His testimony cannot be doubted and there is nothing in his cross examination which can render this witness unbelievable.
47. PW 6 has categorically stated that accused Suresh was employed as gun man with SIS Security. This fact has also been corroborated by PW 11 SI Anil Kumar who has deposed that the arm licence was issued in respect of Suresh Kumar. So it Sessions Case No. : 57/10 Page 20 of 28 21 stands proved that the gun in question belonged to the accused who was working as armed guard on the day of the incident.
48. So from the sequence of events discussed uptill now it is evident that on hearing the gun shot PW 1 arrived at the spot where he saw deceased and accused with gun present who confessed to the killing Sushil Bahadur. After some time PW 2 arrives there and takes gun from the accused who again confesses before PW 2 about killing Sushil Bahadur and thereafter PW 1 informs the police.
49. Now according to the prosecution, accused had made extra judicial confession before PW 1 and PW 2, which is another link in the chain of circumstances. There is nothing on record to show that PW 1 and PW 2 had any enmity with the accused.
50. It is settled that if the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and conviction can be founded thereon.
51. If the evidence about extra judicial confession comes from the mouth of witnesses who appeared to be unbiased not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the Sessions Case No. : 57/10 Page 21 of 28 22 accused, the words spoken by the witness are clear unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, the extra judicial confession can be accepted and can be the basis of conviction.
52. According to PW 1 and PW 2 who were present at the spot alongwith the accused and the gun, the accused according to PW 1 and PW 2 had deposed that he had killed Sushil Bahadur. As per these two witnesses the confession is short and crisp and there is no serious challenge to this in the cross examination. So there is no reason to disbelieve the confession of guilt made by the accused before PW 1 and PW 2.
53. The gun was taken into possession by the IO and on checking it was found by him that one barrel contained a live cartridge and another barrel contained empty cartridge which clearly indicated that the shot has been fired from the gun. Though there is no ballistic report on the record but the circumstances available on record and discussed hereinabove clearly shows that the gun belonged to the accused and shot was fired from the same. Even the accused has not denied the same, what the accused has stated is that the gun went on its Sessions Case No. : 57/10 Page 22 of 28 23 own when Satish Bhardwaj was cleaning it and simultaneously he has also taken the stand that the gun went off accidentally when he and the deceased were grappling with each other.
54. In reply to the questions put to the accused in his statement U/s 313 Cr.P.C he has simply denied each and every question and has not given any explanation. In cross examination of the witnesses it was suggested to them that accused was drinking water when the deceased picked up the gun and pointed towards him and when the deceased was about to pull the trigger, the accused in order to save himself has grappled with the deceased and in that process the shot was fired and bullet hit Sushil Bahadur. But to the IO it has been suggested that when the deceased was cleaning his gun he shot himself. So non explanation by the accused and taking diametrically opposite stances while cross examining the witnesses is also one of the circumstances against the accused.
55. So in view of the above discussions, the prosecution has been able to prove that the death of Sushil Bahadur was a homicidal death; both the accused and the deceased were on duty on the same day and there used to be frequent quarrel between them; gun belonged to accused; accused was employed Sessions Case No. : 57/10 Page 23 of 28 24 as armed guard and deceased was working as unarmed guard; gun was having one live cartridge and one fired cartridge in it; accused made extra judicial confession before PW 1 and PW 2 and he failed to give satisfactory reply U/s 313 Cr.P.C and there are bare denial to the questions put to him. So from these proved circumstances, it can safely be concluded that it was the accused and none else who had shot deceased Sushil Bahadur.
56. PW 11 SI Anil Kumar proved on record the arm licence No. NWKP/8/2008/32 issued in respect of accused Suresh Kumar as Ex. PW 11/B and also proved on record copy of show cause notice dated 08092010, vide which the arm licence had been suspended as Ex. PW 11/A. The incident occurred on 06042010, and the armed licence was cancelled on 08092010, so it has been proved on record that the accused was in lawful possession of the gun when he used the same and fired on deceased Sushil Bahadur. So the accused can safely be convicted U/s 30 of the Arms Act.
57. In view of the discussions, hereinabove, I am of the opinion that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Accused is, therefore, held guilty and convicted U/s 302 IPC and U/s 30 of the Sessions Case No. : 57/10 Page 24 of 28 25 Arms Act. Put up for arguments on the point of sentence on 772012.
(Announced in the open Court on 05062012.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 57/10 Page 25 of 28 26 IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE II, OUTER DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 57/10 FIR No. : 116/10 P.S. : Prashant Vihar U/s : 302 IPC & 27 Arms Act State Vs. Suresh Kumar S/o Sh. Gurdayal Chand R/o A2/95B, Lawrence Road, Delhi.
ORDER ON OF SENTENCE
1. I have heard Ld. APP for the state, Ms. Bindiya Malhotra, Ld. Amicus curiae for the convict and the convict on the point of sentence.
2. It is urged by the Ld. Amicus Curiae for the convict that the convict is a young man; has a family to support; is the only bread earner of his family having one son aged around 22 years Sessions Case No. : 57/10 Page 26 of 28 27 and a girl aged around 21 years who is to be married and he is not a previous convict.
3. On the other hand Ld. APP submits that the convict doesn't deserve any leniency and maximum i.e. death punishment be awarded to him.
4. Convict Suresh Kumar has been convicted by me vide separate judgment dated 05.06.2012 U/s 302 IPC and U/s 30 of the Arms Act.
5. It is not a rarest of the rare case inviting imposition of capital punishment. I therefore sentence convict Suresh Kumar to undergo life imprisonment U/s 302 IPC and pay a fine of Rs. 10000/. He will undergo rigorous imprisonment for six months in case of default of payment of fine.
6. The convict is further sentenced to undergo simple imprisonment for 3 months U/s 30 of the Arms Act and pay a fine of Rs. 1000/. He will undergo simple imprisonment for one month Sessions Case No. : 57/10 Page 27 of 28 28 in case of default of payment of fine. Ordered accordingly.
7. The benefit of section 428 Cr.P.C. be given to convict.
Copy of judgment and order on sentence be given to convict free of cost. File be consigned to Record Room.
(Announced in the open Court on 04082012).
(RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II OUTER DISTRICT ROHINI COURTS : DELHI 04.08.2012 Sessions Case No. : 57/10 Page 28 of 28