Delhi District Court
State vs 1. Bheshdhari @ Sanju @ Anand on 20 March, 2017
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No.DLSE010001342011
SC No.2178/2016
FIR No.208/11
PS Govind Puri
State Versus 1. Bheshdhari @ Sanju @ Anand
S/o Shri Hira Lal
R/o C215, Nehru Camp,
Govindpuri, New Delhi.
2. Arvind Kumar Gupta @ Desilwa
S/o Shri Jagdish Swarup Gupta
R/o H. No. TA70, Gali no. 4,
TKD Extn., New Delhi.
3. Abid
S/o Shri Hisamuddin
R/o RZ51, Gali No. 6,
TKD Extn., New Delhi.
_____________________________________________________________
Date of Institution : 19.09.2011
Date of arguments : 04.02.2017 & 17.03.2017
Date of judgment : 20.03.2017
SC No.2178/2016 & 2214/2016 1 of 38
AND
IN RE: ID No.DLSE010001442011
SC No.2214/2016
FIR No.213/2011
PS Govind Puri
State Versus Abid
S/o Shri Hisamuddin
R/o RZ51, Gali No. 6,
TKD Extn., New Delhi.
______________________________________________________________
Date of Institution : 13.10.2014
Date of arguments : 04.02.2017 & 17.03.2017
Date of judgment : 20.03.2017
JUDGMENT
1. By this common judgment, I propose to decide case FIR No. 208/11 Police Station Govindpuri titled as State Vs. Bheshdhari & Others and also case FIR No.213/11 Police Station Govindpuri titled as State Vs. Mohd. Abid as both the cases are connected with each other.
2. As per case of prosecution, on 29.06.2011 at 11:43 pm in the night, PCR call was received from Ct. Dinesh at Police Station Govindpuri regarding beating by a bad element named Bheshdhari at C449, DDA Flats, Navjeevan Camp, Govindpuri, New Delhi. The said information was recorded vide DD No. 49A Ex.PW3/A and was sent to SC No.2178/2016 & 2214/2016 2 of 38 SI Hans Raj (PW25) through Ct. Shailender (PW19) for necessary action.
3. On receipt of DD No.49A, SI Hans Raj alongwith Ct. Shailender reached at jhuggies in Navjeevan Camp near Pocket 4, Govindpuri, New Delhi, where a number of people were found present. No injured was found present at the spot. Meanwhile, SI Hans Raj received DD No.78B Ex.PW17/C regarding admission of injured Sheru in AIIMS, Trauma Center. Therefore, he along with Ct. Shailender went to AIIMS, Trauma Center by leaving Ct. Jag Pal at the spot. Injured Sheru was found admitted in the hospital, where he was being treated. The injured was declared unfit for statement by the doctor. SI Hans Raj collected MLC of Sheru. No eyewitness was found present in the hospital.
4. Thereafter SI Hans Raj prepared rukka Ex.PW25/A on DD No.49A. He gave the said rukka to Ct. Shailender for registration of FIR. Duty Constable Ravi Kumar handed over three sealed pulandas with the seal of JPNATC CMO i.e. (i) bullet recovered from the body of injured, (ii) clothes of injured and (iii) personal search article of injured to SI Hans Raj, who seized the said pulandas vide seizure memos Ex.PW8/C, Ex.PW8/B and Ex.PW8/A. He recorded statement of Ct. Ravi Kumar and thereafter came back to the spot of incident.
5. Crime team officials were called, who inspected the spot of SC No.2178/2016 & 2214/2016 3 of 38 incident and gave their report to SI Hans Raj. In the meantime, Ct. Shailender came back to the spot after registration of FIR and handed over copy of FIR and original rukka to the IO of the case. SI Hans Raj seized two mobile phones i.e. one of TATA Indicom having number 9210153333 and another of Samsung having number 8826055921 from the stairs and from near the stairs from the spot. The said mobile phones were seized vide seizure memo Ex.PW4/C. One live cartridge was also found at the spot. Sketch of the said live cartridge Ex.PW19/A was prepared. The said cartridge was seized vide seizure memo Ex.PW4/B. The blood sample from the spot found at the spot was taken. Some floor pieces of concrete stained with blood were also taken and seized vide seizure memo Ex.PW4/A. In the meantime, Guddu @ Sharique (PW7) and Bablu @ Dablu (PW6) came at the spot. They claimed themselves to be eyewitnesses of the incident. SI Hans Raj prepared site plan of the spot of crime Ex.PW25/B at the instance of Guddu. He tried to search for the accused persons but they could not be found.
6. On 30.06.2011, SI P. K. Jha (PW17) along with HC Anil, HC Satender, Ct. Arun and Ct. Brij Pal, the members of Special Staff, SouthEast District were patrolling in the area. At about 8:30 pm, when they were near Lady Sri Ram College, a secret informer came to SI P. K. Jha who told them about the persons involved in the incident of SC No.2178/2016 & 2214/2016 4 of 38 firing at Govindpuri on 29.06.2011 were likely to come to Bus Stand, Central School, Andrews Ganj, New Delhi. SI P. K. Jha gave the information in this regard to Inspector Special Staff and he also shared the said information to other police persons who were accompanying him. A raiding party consisting of all the members was formed. Public persons were requested to join the investigation but they did not agree. Thereafter, they all went to the pointed place i.e. Bus Stand, Andrews Ganj with the informer
7. As per case of prosecution, at about 9:15 pm, all the three accused came there, who were apprehended on the pointing out of informer. On being interrogated, they disclosed their names as Arvind Kumar Gupta, Anand @ Bheshdhari and Abid. They were taken to the office of Special Staff where they were interrogated and thereafter, all the three accused were arrested. Accused Arvind Kumar was arrested vide arrest memo Ex.PW17/A. Accused Abid was arrested vide arrest memo Ex.PW17/B and accused Anand @ Bheshdhari was arrested vide arrest memo Ex.PW17/C. Their personal search was conducted vide memos Ex.PW17/D (of Abid), Ex.PW17/E (of Anand) and Ex.PW17/F (of Arvind Kumar Gupta). The disclosure statement of accused persons Ex.PW10/B (of Abid), Ex.PW10/A (of accused Anand) and Ex.PW10/C (of accused Arvind Kumar Gupta) was recorded. Accused persons were got medically examined in Batra SC No.2178/2016 & 2214/2016 5 of 38 Hospital.
8. DD No.20 under section 41.1 Cr.P.C. Ex.PW17/G was recorded by SI P. K. Jha. On 01.07.2011, in pursuance of his disclosure statement, accused Abid led the police party to his house i.e. RZ51/6, Tughlakabad Extension, New Delhi and got effected recovery of one country made pistol from under mattress of his bed. The pistol on being checked was found to be loaded with one used cartridge. Sketch of pistol and cartridge was prepared vide Ex.PW3/E. The country made pistol along with empty cartridge was sealed with the seal of PKJ and thereafter, was seized vide seizure memo Ex.PW17/H. SI P. K. Jha prepared a complaint (kalandra) Ex.PW17/I. He made endorsement on the same and gave to Ct. Arun for registration of FIR. SI Arun went to Police Station, got the FIR registered in the case, came back to the spot and handed over copy of FIR and asal tehreer to the IO of the case. Thus, FIR No.213/11 PS Govindpuri was registered on the basis of complaint and endorsement of SI P. K. Jha.
9. Further investigation of case FIR No.213/11 Police Station Govindpuri was handed over to HC Jai Pal, who came to the spot. SI P. K. Jha handed over seizure memos, FSL Form, sketch of arms and ammunition and custody of accused Abid to HC Jai Pal.
10. On 01.07.2011, DD No.5 was received at Police Station Govindpuri, wherein it was informed that Special Staff Police had SC No.2178/2016 & 2214/2016 6 of 38 apprehended Bheshdhari, Arvind and Abid, who had disclosed about their involvement in case FIR No.208/11. The accused persons were produced in the court of learned MM by Special Staff Police on 01.07.2011. SI Hans Raj (PW28), IO of case FIR No. 208/11, applied for interrogation of accused persons. After grant of permission by the court, accused persons were interrogated. Disclosure statement of accused Abid Ex.PW4/H, of Arvind Ex.PW4/I and of accused Bheshdhari Ex.PW4/J were recorded. They confessed for their involvement in the case. Therefore, after their interrogation accused Bheshdhari, Abid and Arvind were arrested vide memos Ex.PW4/E, Ex.PW4/F and Ex.PW4/G. Their personal search was conducted vide memos Ex.PW22/A, Ex.PW22/B and Ex.PW22/C respectively. The accused persons were remanded to police custody for two days.
11. Pursuant to his disclosure statement, on 02.07.2011, accused Bheshdhari took the police party to a park near Pocket 3 and 4, Hanuman Mandir, Govindpuri from where he got recovered one danda and one live cartridge. SI Hans Raj prepared sketch of cartridge Ex.PW12/A. The cartridge and danda were seized vide seizure memo Ex.PW12/B after seal. Accused Arvind took them to the same park and got recovered one danda which was like a cricket bat and the same was seized vide seizure memo Ex.PW4/A. Accused Abid disclosed that the katta used by him in the incident was already got recovered by him to SC No.2178/2016 & 2214/2016 7 of 38 police of Special Staff.
12. Matter was investigated as per law. IO of the case conducted various stages of investigation in the matter. All the three accused were found involved in the commission of offence in the case. Therefore, on conclusion of investigation, they were chargesheeted to face trial.
13. Accused Abid was also found involved in the commission of offence in case FIR No.213/11, therefore, he was chargesheeted to face trial for offence punishable under section 25 of Arms Act in the said case.
14. All the accused, on their appearance before the court of learned MM, was supplied copy of charge sheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was made.
15. As the offence under section 307 IPC is exclusively triable by the Court of Session, therefore, the matter was committed to the Court of Session for trial in accordance with law.
16. Prima facie, sufficient material was found to frame charge against all the accused for offence punishable under section 307/34 IPC. Additionally, sufficient material was also found to frame charge under section 27 of Arms Act against accused Abid, therefore, charge for the said offences was framed against accused persons on 05.10.2011 to which they pleaded not guilty and claimed trial.
SC No.2178/2016 & 2214/2016 8 of 38
17. In order to bring home the guilt against accused persons in case FIR No.208/11, prosecution has examined twenty five witnesses. Out of total 25 witnesses examined by the prosecution, PW5 Mohd. Sheru is injured while PW6 Bablu @ Dablu and PW7 Guddu @ Sharique are the eyewitnesses. PW1 Ct. Rambir Singh, PW2 Mohan Singh, PW3 HC Dharam Pal (DD Writer), PW8 Ct. Ravi Kumar, PW 13 ASI Mange Lal (Duty Officer), PW15 HC Bharat Ram [the then MHC(M) in PS Govindpuri], PW18 Ct. Surjeet, PW20 Rajender Singh, Record Clerk, AIIMS Trauma Center, PW21 Rajiv Ranjan, Nodal Officer, TATA Tele Services Ltd. and PW23 Ms. Meghna Yadav, the then DCP, who granted sanction for prosecution of accused Bheshdhari @ Sanju @ Anand are the formal witnesses of the prosecution. PW9 SI Naresh Kumar, Incharge Mobile Crime Team and PW11 Ct. Purshottam, the photographer are the members of crime team, who visited the place of incident. SI Naresh Kumar proved his Inspection Report Ex.PW9/A. Ct. Purshottam proved the photographs of the spot of crime which are Ex.PW11/A1 to Ex.PW11/A5 and their negatives Ex.PW11/B1 to Ex.PW11/B5. PW4 Ct. Jagpal Singh, PW12 HC Gajender Singh, PW14 Ct. Khushi Ram, PW16 Ct. Ishwar, PW19 Ct. Shailender and PW22 Ct. Pradeep joined the investigation of the case along with IO SI Hans Raj. PW10 HC Anil Kumar, PW17 SI P. K. Jha and PW24 Ct. Brijpal are the members of Special Staff, South SC No.2178/2016 & 2214/2016 9 of 38 East District, who apprehended the accused persons on the basis of secret information. PW25 SI Hans Raj is IO of the case, who conducted various stages of investigation in the matter and on conclusion of investigation, filed challan against the accused persons.
12. On conclusion of prosecution evidence, statement of all the accused under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances appearing against them was put to them, to which they claimed innocence and alleged false implication.
13. Accused Bheshdhari and Abid denied to lead any evidence in their defence, while accused Arvind Kumar Gupta examined DW1 Pawan Kumar in his defence. Thereafter, defence evidence was closed.
14. Chargesheet in case FIR No.213/11 was filed against accused Mohd. Abid in the court of learned MM. Charge in the said case for offence punishable under section 25 of The Arms Act was framed against accused on 21.09.2011, to which he pleaded not guilty and claimed trial.
15. To prove its case in case FIR No.213/11, prosecution examined as many as nine witnesses in all. PW3 SI P. K. Jha and PW5 Ct. Arun are the witnesses, who apprehended the accused. They are the witnesses, who were present at the time of recovery of weapon of offence i.e. katta from the possession of accused. PW1 Ms. Meghna SC No.2178/2016 & 2214/2016 10 of 38 Yadav, the then Additional DCP is a formal witness of the prosecution. She granted sanction Ex.PW1/A for prosecution of accused Abid for offence under section 25 Arms Act. PW2 HC Jai Pal is the first IO of the case. PW4 W / SI Rajni, the duty officer, is a formal witness of the prosecution. She recorded FIR No.213/11 Ex.PW4/A on the basis of rukka given to her by Ct. Arun Kumar. She made endorsement on rukka vide Ex.PW4/B. PW6 Ct. Nagender Kumar, PW8 Sunil Kumar and PW9 HC Banwari Lal are the formal witnesses of the prosecution. PW7 HC Surender Kumar is the last IO of the case, who concluded investigation in case FIR No.213/11 and thereafter filed challan in the court against accused Abid.
16. Vide order dated 10.10.2014, the case FIR No.213/11 PS Govindpuri titled as State Vs. Mohd. Abid was committed to the Court of Session as connected case bearing FIR No.208/11 under section 307/34 IPC PS Govindpuri titled as State Vs. Bheshdhari & Others was pending trial in the Court of Session. The country made pistol recovered from accused Abid in case FIR No.213/11 was used with an attempt to commit murder of injured Sheru in case FIR No.208/11, therefore, it was thought desirable that both the cases be decided by one court.
17. On receipt of file of case FIR No.213/11 PS Govindpuri, it was found that prosecution witnesses were already examined. Therefore, SC No.2178/2016 & 2214/2016 11 of 38 statement of accused under section 313 Cr.P.C. was recorded. Accused Mohd. Abid when examined under section 313 Cr.P.C. in case FIR No. 213/11, claimed innocence and alleged false implication. He denied to lead evidence in his defence. Therefore, defence evidence was closed.
18. In the course of trial in the matter, prosecution filed an application under section 464 Cr.P.C. for framing of charge for offence under section 25 of Arms Act against accused Bheshdhari @ Sanju @ Anand. The said application was contested by accused by way of filing written reply. Vide order dated 17.03.2017, the application of prosecution was allowed and charge for offence under section 25 of The Arms Act was framed against accused Bheshdhari @ Sanju @ Anand to which he pleaded not guilty and claimed trial.
19. As the parties had already led evidence in the case even in respect of charge for offence under section 25 Arms Act against accused Bheshdhari @ Sanju @ Anand, therefore, no further evidence was led in the case.
20. I have heard and considered the submissions advanced by Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Shri A. U. Khan, learned counsel for all accused persons and carefully perused record of the case.
21. The main points for consideration to be decided by this court in both the cases are as under : SC No.2178/2016 & 2214/2016 12 of 38 i. Who are the persons who fired upon injured Mohd. Sheru? ii. What was the weapon of offence with which the offenders / assailants caused injuries to injured?
iii. Whether the offenders had intention or knowledge and caused injuries to injured that if death of injured Mohd. Sheru was caused, they would have been guilty of murder?
iv. Whether accused Abid was found in possession of katta i.e. country made pistol along with one empty cartridge in contravention of notification issued by Delhi Administration?
v. Whether accused Abid fired country made pistol on injured Mohd. Sheru causing him grievous injury and he used the fire arm in violation of section 5 of The Arms Act?
vi. Whether accused Bheshdhari @ Sanju @ Anand was found in possession of one live cartridge which is an ammunition as defined in The Arms Act?
vii. If the answer to the aforesaid questions is in affirmative, then for what offences the accused persons are liable to be punished?
22. My issue wise findings on the above mentioned points for determination are given herein below: Point for determination No. 1 :
Who are the persons, who fired upon injured Mohd. Sheru?
23. Testimony of PW5 Mohd. Sheru, the injured, PW6 Bablu @ SC No.2178/2016 & 2214/2016 13 of 38 Dablu and PW7 Guddu @ Sharique is relevant to decide the aforesaid issue. PW5 Mohd. Sheru deposed that his brother resided at F7, Navjeevan Camp, Govindpuri, New Delhi. He deposed that on 29.06.2011, he had come to Govindpuri and at about 99:30 pm, he was going to the house of his brother. Two boys namely Dablu and Guddu residents of Govindpuri, who were earlier known to him being his neighbours met him near their house at the end of the gali. He testified that four persons including Chander Prakash and three others i.e. the accused persons came there firing towards him. They were shouting "maar do saale ko, bachna nahin chahiye". As per the witness, accused Bheshdhari tried to save him from other accused. Accused Abid had hit accused Bheshdhari by the butt of pistol. He further deposed that all the accused were having pistol in their hands. He suffered injury on his neck. He further deposed that he was stabbed by knives and he suffered knife injury on his left arm, left leg as well as on his abdomen. As per the witness, he fell down on the ground. He was taken to hospital by a person named Monu and from there, he was shifted to Safdarjung Hospital. He correctly identified all the accused persons in the court.
24. PW5 Mohd. Sheru resiled from his earlier statement given to police under section 161 Cr.P.C. Therefore, after seeking permission of the court, he was crossexamined at length by learned Additional PP for State. He denied the suggestion that accused Bheshdhari was SC No.2178/2016 & 2214/2016 14 of 38 collecting Rs.3,000/ from his brother for running cable network or had collected Rs.10,000/ from him. He further denied the suggestion that he was called by accused Bheshdhari at Navejeen Camp on 29.06.2011 for returning amount of Rs.10,000/. He further denied the suggestion that on the said date at about 10:45 pm, accused Bheshdhari, Abid and Arvind Kumar took him towards the jhuggi of CBlock, Navjeevan Camp and started beating him. He further denied the suggestion that accused Bheshdhari hit him with a danda and when he tried to catch that danda, accused Bheshdhari again hit him on his forehead by that danda. He also denied the suggestion that it was accused Bheshdhari who had shouted "Abid! goli maar, bhag na jaye. Aaj isko jaan se khatam kar de". He also denied the suggestion that all the accused came to him while accused Abid shot at him.
25. PW5 Mohd. Sheru was crossexamined by learned counsel for accused persons and from his crossexamination, some facts have emerged which show that the injured Mohd. Sheru has made sufficient improvements during his testimony recorded in the court from the earlier statement given to the police. The witness admitted that the police had recorded his statement under section 161 Cr.P.C. during the course of investigation in the case. The witness was confronted with his statement Ex.PW5/DA, where it was found that the fact that accused persons came there firing towards him was found to be not SC No.2178/2016 & 2214/2016 15 of 38 recorded. Further, in his statement Ex.PW5/DA, the fact that all the accused were having pistol in their hands was also not found recorded.
26. Thus, from the analysis of the testimony of PW5 Mohd. Sheru, it emerges on record that all the three accused persons were present at the spot of crime. Accused Abid was the person, who fired upon him due to which he suffered bullet injury on his back. There is sufficient improvement in the testimony of Mohd. Sheru recorded in the court from the statement Ex.PW5/DA which he earlier gave to police. In his testimony, PW5 Mohd. Sheru has tried to save accused Bheshdhari by not speaking incriminating things about him. However, he has admitted that all the three accused including accused Bheshdhari were present at the spot at the time of commission of offence in the case. They fired upon him with pistol. He further admitted that all the accused persons were shouting "maar do saale ko, bachna nahin chahiye".
27. PW6 Bablu @ Dablu is an eyewitness of the incident. He deposed that on 28.06.2011 at about 10:30 pm, he had come to the house of Guddu and when he was returning to his house along with Guddu, Mohd. Sheru met him on the road. They accosted each other. As per the witness, four persons including the three persons came there and they started firing in the air. He further deposed that Mohd. Sheru ran towards jhuggies. He testified that all the accused were seen by him firing towards Sheru. He stated that Sheru suffered bullet injury on his SC No.2178/2016 & 2214/2016 16 of 38 neck. He further deposed that all the accused persons had stabbed Mohd. Sheru with knives. He correctly identified all the three accused persons as the persons, who fired towards Sheru and caused bullet injury to him. They also gave stab injury to him with knives.
28. In his crossexamination by prosecution, PW6 Bablu @ Dablu denied the suggestion that accused Bheshdhari had hit Mohd. Sheru by a danda on his head and the other accused persons had also beaten Mohd. Sheru by dandas. He also denied the suggestion that date of incident was of 29.06.2011 instead of 28.06.2011. The witness has admitted about the incident and the manner in which the injury was inflicted by the accused persons to injured. The date of incident is 29.06.2011. His testimony was recorded in the court on 31.01.2012 i.e. after a period of around seven months. It may be possible that due to lapse of time, he forgot exact date of incident.
29. In his crossexamination by counsel for accused persons, PW6 Bablu @ Dablu reasserted that he had seen accused Abid firing at injured Mohd. Sheru. He denied the suggestion that he did not see, who fired at Mohd. Sheru due to which he suffered bullet injury. He affirmed that it was accused Abid, who fired at Mohd. Sheru causing him injury. He denied the suggestion that he was not present at the spot nor had seen the incident.
30. From the testimony of PW6 Bablu @ Dablu, it is seen that all SC No.2178/2016 & 2214/2016 17 of 38 the three accused persons came at the spot, they fired in the air. They also fired towards injured Mohd. Sheru due to which he suffered bullet injury on his back. It is further seen from his testimony that accused persons had also caused stab injury to him with knives.
31. PW7 Guddu @ Sharique is also an eyewitness of the incident. He deposed that on 28.06.2011 at about 10.30 pm when he along with his friend Dablu @ Bablu came outside their house, Mohd. Sheru met them at the end of the gali. They started talking to each other. As per the witness, four persons including accused Abid and Arvind Desilwa came there firing in the front side. He ran to his house. Sheru fled away from the other side. He could not see as to who suffered injury in the incident.
32. PW7 Guddu @ Sharique was declared hostile by learned Additional PP for State. He was crossexamined at length but he did not support the prosecution case. In his crossexamination, he admitted that he had seen accused Abid firing. However, he stated that he could not say that it had hit Mohd. Sheru or not. Thus, from his testimony, it is seen that he admits about the incident of firing and presence of accused persons at the spot. However, he could not tell as to who suffered injuries in the incident and who caused those injuries.
33. Testimony of PW5 Mohd. Sheru and PW6 Bablu @ Dablu is found to be in consonance with each other on material aspects. Both SC No.2178/2016 & 2214/2016 18 of 38 the witnesses admit presence of all the accused persons at the spot. The accused persons fired towards Mohd. Sheru. Mohd. Sheru suffered bullet injury in the incident. He was also stabbed with knife. It appears that in the course of trial, PW5 Mohd. Sheru was won over by accused Bheshdhari or compromised the matter with him outside the court, therefore, he discriminated his role in the commission of offence and deposed in favour of him. Therefore, he said that accused Bheshdhari tried to save him from other accused persons. Contrary to his deposition, PW6 Bablu @ Dablu, who is an eyewitness of the incident and an independent witness, rather he is friend of Mohd. Sheru, has categorically stated that all the accused were seen by him firing towards accused Mohd. Sheru. Thus, the testimony of PW6 Bablu @ Dablu is found to be more credible and reliable in respect of the role played by the accused persons in the commission of offence in the case than that of injured Mohd. Sheru. Accused Arvind Kumar @ Desilwa examined DW1 Pawan Kumar in his defence, who appears to be an interested witness. DW1 Pawan Kumar has deposed only to favour the accused Arvind Kumar @ Desilwa.
34. In view of overall analysis of the testimony of PW5 Mohd. Sheru and PW6 Bablu @ Dablu, it is amply clear that it were all the three accused namely Bheshdhari, Abid and Arvind Kumar @ Desilwa, who came at the spot and fired upon injured Mohd. Sheru.
SC No.2178/2016 & 2214/2016 19 of 38 Point for determination No. 2 :
What was the weapon of offence with which the offenders / assailants caused injuries to injured?
35. As per deposition of PW5 Mohd. Sheru, the accused persons had fired upon him with pistol and he suffered bullet injury on his back. He further deposed that he was also stabbed by knives and he suffered knife injury on his left arm, left leg as well as on his abdomen. PW6 Bablu @ Dablu has fully supported the testimony of injured Mohd. Sheru on all material aspects. He has categorically deposed that the accused persons came at the spot and started firing in the air. He further deposed that he had seen all the three accused firing towards Mohd. Sheru, who had suffered bullet injuries on his back. He further deposed that all the accused persons had also stabbed Mohd. Sheru with knives.
36. Injured Mohd. Sheru, after the incident, was taken to AIIMS Hospital by his friend Monu. He was admitted in the hospital with alleged history of assault and fire arm injury over left back. The doctor noted entry wound of 1.5 of fire arm. The doctor further noted incised wound over RT forehead, RT eyebrow, umbical area. As per MLC of Mohd. Sheru Ex.PW20/A, he suffered grievous sharp injury in the incident. Thus, the oral testimony of injured and eyewitness is SC No.2178/2016 & 2214/2016 20 of 38 supported with medical evidence.
37. From the consideration of above facts and material, it is held that the accused persons caused injuries to injured Mohd. Sheru with pistol and knife. Point no. 2 is decided accordingly.
Point for determination No. 3 :
Whether the offenders had intention or knowledge and caused injuries to injured that if death of injured Mohd. Sheru was caused, they would have been guilty of murder?
38. PW5 Mohd. Sheru, the injured stated that the accused persons fired towards him. They were shouting "maar do saale ko, bachna nahin chahiye". The accused persons were having pistol in their hands. He suffered bullet injury on his back. He was also stabbed by knives and he fell on the ground. PW6 Bablu @ Dablu supported the testimony of injured Mohd. Sheru by stating that the accused persons were firing towards Mohd. Sheru and he suffered bullet injury on his back. The accused persons also stabbed Mohd. Sheru with knives. The MLC of injured Mohd. Sheru shows that he suffered grievous sharp injury in the incident. The accused persons were three in number. They fired from pistol upon injured Mohd. Sheru. Thus, it is seen that there was mens rea for killing the injured on the part of accused persons which was followed by actus reus i.e. firing upon him with pistol.
SC No.2178/2016 & 2214/2016 21 of 38 Thus, in the given facts and circumstances of the case, it is seen that the accused persons had requisite knowledge and intention that if death of injured Mohd. Sheru was caused due to fire arm injury, they would have been guilty of murder. Hence, they committed the offence punishable under section 307/34 IPC.
Point for determination No. 4 :
Whether accused Abid was found in possession of katta i.e. country made pistol along with one empty cartridge in contravention of notification issued by Delhi Administration?
39. PW17 SI P. K. Jha and PW24 Ct. Brij Pal (both in case FIR No. 208/11 and SI P. K. Jha (PW3) and Ct. Arun (PW5) in case FIR No. 213/11) are the recovery witnesses of the weapon of offence i.e. pistol from the possession of accused. Accused Abid along with his associates was apprehended at the instance of secret informer by Special Police Staff, SouthEast District on 30.06.2011. He confessed for his involvement in the commission of offence in case FIR No.208/11. His disclosure statement Ex.PW3/B was recorded by SI P. K. Jha. Pursuant to his disclosure statement, he took the police party to his house on 01.07.2011 and got recovered one country made pistol from his house. SI P. K. Jha opened the katta from which empty cartridge of 315 was taken out. Sketch of pistol and cartridge SC No.2178/2016 & 2214/2016 22 of 38 Ex.PW3/E was prepared. Thereafter, country made pistol alongwith empty cartridge was seized after seal vide seizure memo Ex.PW3/D.
40. The country made pistol and empty cartridge was sent to FSL, Rohini for examination. The ballistic expert, on examination of country made pistol and empty cartridge, gave the opinion that the same were fire arm / ammunition as defined in The Arms Act, 1959 vide report Ex.PW7/A.
41. Accused Abid was not having any valid licence or permit to possess the country made pistol and cartridge with him. Thus, he was found in possession of country made pistol and cartridge Ex.P1 in contravention of notification issued by Delhi Administration.
42. In the course of arguments, it was submitted by learned counsel for accused that so far as recovery of pistol and cartridge from house of accused Abid is concerned, the same suffers from material contradictions. He submitted that as per the testimony of PW17 SI P. K. Jha, recovery of one pistol containing one used cartridge was effected from the house of accused Abid. Whereas, PW24 Ct. Brij Pal deposed that one pistol containing one live cartridge was recovered. He further submitted that no independent witness was joined at the time of recovery of the weapon of offence despite their availability. He submitted that recovery of said weapon of offence from such a densely populated residential area without public witness vitiates the SC No.2178/2016 & 2214/2016 23 of 38 prosecution case. He submitted that recovery of pistol and cartridge from the house of accused is highly doubtful, therefore, accused Abid is entitled to be acquitted.
43. The katta and empty cartridge was recovered from the possession of accused in case FIR No.213/11 PS Govindpuri and the same was used in firing the injured in case FIR No.208/11 under section 307 IPC. PW3 SI P. K. Jha and PW5 Ct. Arun, both are recovery witnesses of the prosecution. Both the witnesses have deposed that country made pistol alongwith one empty cartridge was recovered from the house of accused. There is no inconsistency in their deposition so far as recovery of weapon of offence i.e. country made pistol and empty cartridge is concerned. Both the recovery witnesses have categorically deposed that country made pistol and one used cartridge was recovered from the house of accused.
44. PW3 SI P. K. Jha was also examined in case FIR No.208/11 PS Govindpuri. Ct. Brij Pal (PW24) is also a recovery witness, who was present at the spot at the time of recovery of weapon of offence from the house of accused Abid. He deposed on the same lines as deposed by SI P. K. Jha except on the aspect that the country made pistol was found to be loaded with one live cartridge. Sketch of country made pistol and empty cartridge Ex.PW3/E in case FIR No.213/11 shows that the cartridge was empty. This document was prepared by SI P. K. Jha SC No.2178/2016 & 2214/2016 24 of 38 which has been signed by recovery witnesses Ct. Arun Kumar and Ct. Brij Pal. The oral testimony of Ct. Brij Pal is found to be contrary from the documentary evidence in the form of document Ex.PW3/E. The ballistic report also shows that country made pistol alongwith empty cartridge was sent for examination. Further, it is seen that the recovery was effected on 01.07.2011. Testimony of Ct. Brij Pal was recorded in the court on 08.12.2014 after a period of around three years and five months. Thus, there is every possibility that he might have forgotten about the cartridge which was found inside the country made pistol. In view of above, the recovery of country made pistol alongwith empty cartridge from the house of accused cannot be doubted only on account of the fact that one of the recovery witness namely Ct. Brij Pal has deposed that country made pistol alongwith live cartridge was recovered.
45. I do not agree with the submissions of learned counsel for accused persons that nonjoining of public witnesses at the time of recovery of weapon of offence i.e. pistol and cartridge from the house of accused makes the recovery highly doubtful. Police officials are as much good and truthful witnesses as the public persons are SI P. K. Jha in his crossexamination has stated that entry was made in the Roznamcha Register about their departure to the house of accused. He denied the suggestion that accused Abid did not lead them to his house.
SC No.2178/2016 & 2214/2016 25 of 38
46. SI P. K. Jha when crossexamined in case FIR No.213/11 PS Govindpuri stated that there were public persons present at the place of recovery. He deposed that he had asked the said public persons to join the investigation but none agreed. He denied the suggestion that he had not gone to the spot nor had effected any recovery from the house of accused Abid or he was falsely implicated in the case and the case property i.e. weapon of offence (pistol and cartridge) was planted upon accused.
47. Thus, a reasonable explanation has been furnished by SI P. K. Jha, recovery witness of weapon of offence, for nonjoining of public persons in the investigation. It is a matter of common knowledge that common public generally avoid to become a witness in a police case. Therefore, only on account of the fact that public persons were not joined at the time of recovery of weapon of offence from the house of accused Abid does not make the recovery doubtful.
48. In the case of Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, it was held by Hon'ble Apex Court that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds. Therefore, such an attitude could do neither credit to the Magistrates nor good to the public. It only runs down the prestige of police administration. As no previous enmity has been SC No.2178/2016 & 2214/2016 26 of 38 brought on record against the police officials by the accused persons nor any malafides are shown to their action, therefore, their testimony regarding the recovery of pistol and cartridge Ex.P1 (colly.) at the instance of accused Abid cannot be doubted.
49. Accused Abid failed to show any valid licence or permit to possess the country made pistol and the cartridge Ex.P1 (colly.) at the time when the same was found in his possession on 01.07.2011 at about 11.00 am at his H. No. RZ51, Gali No. 6, Tughlakabad Extension, New Delhi.
50. PW1 Ms. Meghna Yadav, the then Additional DCP, SouthEast District granted sanction under section 39 of Arms Act on 02.01.2012 for prosecution of accused Abid for offence under section 25 Arms Act. She proved the sanction which is Ex.PW1/A. As per the witness, she granted sanction for prosecution of accused Abid after perusal of entire case file and after applying proper application of mind.
51. For the aforesaid reasons, in my view, prosecution succeeded to prove on record beyond all shadow of reasonable doubt that on 01.07.2011, accused Abid was found in possession of katta i.e. country made pistol along with one empty cartridge Ex.P1 (colly.) in contravention of notification issued by Delhi Administration. Thus, he committed the offence punishable under section 25 of The Arms Act. Point for determination No. 5 :
SC No.2178/2016 & 2214/2016 27 of 38 Whether accused Abid fired country made pistol on injured Mohd. Sheru causing him grievous injury and he used the fire arm in violation of section 5 of The Arms Act?
52. PW5 Mohd. Sheru, the injured and PW6 Bablu @ Dablu, the eyewitness, both have deposed that accused Abid fired towards Sheru and he suffered bullet injury on his back. As per deposition of PW5 Mohd. Sheru, accused Abid fired upon him with a pistol. PW6 Bablu @ Dablu in his crossexamination has reasserted that it was accused Abid, who fired at injured Mohd. Sheru and caused injuries to him. The katta used by accused Abid for firing upon injured Mohd. Sheru was recovered from his house at his instance on 01.07.2011 and the same was seized in case FIR No.213/11.
53. The MLC of injured Mohd. Sheru shows that he suffered grievous sharp injury in the incident. A fire arm injury was noted by the doctor in his MLC Ex.PW20/A. The ballistics report Ex.PW7/A shows that the country made pistol, recovered from the possession of accused Abid, which was sent to FSL was found in working condition. The ballistics expert in his report Ex.PW7/A noted that the country made pistol .315 bore Mark Ex.F1 and 8 mm/.315 cartridge Ex.EC1 was a fire arm / ammunition as defined in The Arms Act, 1959.
54. In view of above, I am of the view that prosecution has SC No.2178/2016 & 2214/2016 28 of 38 succeeded to prove on record that accused Abid fired from country made pistol on injured Mohd. Sheru causing him grievous injury. The accused used the fire arm in violation of section 5 of The Arms Act. Thus, he committed the offence punishable under section 27 of The Arms Act.
Point for determination No. 6 :
Whether accused Bheshdhari @ Sanju @ Anand was found in possession of one live cartridge which is an ammunition as defined in Arms Act?
55. On receipt of DD No.49A Ex.PW3/A, PW25 SI Hans Raj alongwith Ct. Shailender went to the spot i.e. jhuggies in Navjeevan Camp, near Pocket 4, Govindpuri, where people were found gathered. No injured was found at the spot. Meanwhile, he received DD No.78B Ex.PW17/C through Ct. Jagpal and came to know that injured Sheru was admitted in AIIMS Trauma Center. He deputed Ct. Jagpal at the spot and went to Trauma Center, AIIMS along with Ct. Shailender where injured Sheru was found being treated. The injured was declared unfit for statement by the doctor. He collected MLC of Sheru. He prepared rukka Ex.PW25/A on DD No. 49A and got the FIR registered in the case through Ct. Shailender. He seized the pulandas handed over to him by duty constable Ravi Kumar at AIIMS Trauma Center vide SC No.2178/2016 & 2214/2016 29 of 38 memos Ex.PW8/C, Ex.PW8/B and Ex.PW8/A. Thereafter, he came back to the spot of incident.
56. PW25 SI Hans Raj deposed that from the spot, he seized two mobile phones, one from the stairs and second from near the stairs. The phones were seized vide seizure memo Ex.PW4/C. He further deposed that on the spot, he also found one live cartridge on the base of it KF 7.65 was written. He prepared sketch of cartridge Ex.PW19/A. The same was kept in a plastic box and was seized after seal vide seizure memo Ex.PW4/B.
57. PW19 Ct. Shailender, who accompanied SI Hans Raj to the spot, has deposed on the same lines as deposed by SI Hans Raj (PW
25). He supported the testimony of SI Hans Raj on the aspect of recovery of mobile phones and one live cartridge from the spot of incident. Both the witnesses correctly identified the mobile phones Ex.PW4/1, Ex.PW4/2 and cartridge Ex.PW19/1 in the course of their deposition in the court.
58. As per deposition of PW25 SI Hans Raj, the accused persons were arrested in the case and during their interrogation, they gave disclosure statement Ex.PW4/H (Abid), Ex.PW4/I (Arvind) and Ex.PW4/J (Bheshdhari). Pursuant to their disclosure statement, they pointed out the place of incident on 02.07.2011. SI Hans Raj deposed that accused Bheshdhari took them to a park near Pocket 3 and Pocket SC No.2178/2016 & 2214/2016 30 of 38 4, Hanuman Mandir, Govindpuri and from there, he got recovered one danda and one live cartridge. He proved the sketch of cartridge which is Ex.PW12/A.
59. In his crossexamination, PW25 SI Hans Raj stated that recovery of articles was made at about 11:00 am or 12:00 noon. He admitted that public persons were moving outside the park and there were residential houses around the said park. He further admitted that he did not join any public person from those houses to become witness in the recovery proceedings of cartridge, danda and cricket stump. He also admitted that he did not prepare any memo regarding handing over and taking over of the seal used by him for preparing the pulandas of case property i.e. danda, cartridge and stump.
60. PW12 HC Gajender Singh is also a recovery witness of cartridge which was effected at the instance of accused Bheshdhari. He deposed that on 02.07.2011, he joined the investigation along with SI Hans Raj. As per the witness, accused Bheshdhari, when he was in police custody, gave disclosure statement Ex.PW4/J to the IO of the case. He further deposed that after his disclosure statement, accused Bheshdhari led them to a park in back side of Shakti Hanuman Mandir, Pocket 4, Tughlakabad Extension, Kalkaji, New Delhi where he pointed out a place having bushes and stated that there he had thrown the weapon of offence. From there, he brought out a danda like handle SC No.2178/2016 & 2214/2016 31 of 38 of spade and one live cartridge from bushes and handed over the same to the IO of the case. As per the witness, KF 7.65 was engraved on the bottom of that cartridge. IO prepared sketch of cartridge which is Ex.PW12/A.
61. In his crossexamination, PW12 HC Gajender Singh admitted that there was no special identity mark on the danda recovered at the instance of accused Bheshdhari. As per the witness, it was accused Bheshdhari, who brought out the said danda and live cartridge from bushes. He admitted that the said articles were visible from the bushes. He stated that IO did not call any person from pocket IV, TKD to be witness of recovery by accused.
62. From the deposition of PW12 HC Gajender Singh and PW25 SI Hans Raj, it is seen that public persons were available at the time of recovery of alleged danda and live cartridge at the instance of accused Bheshdhari. SI Hans Raj as well as PW12 HC Gajender Singh, both have not furnished any explanation as to why public persons were not joined to become witness at the time of recovery of cartridge, danda and cricket stump at the instance of accused Bheshdhari despite their availabilities. The live cartridge allegedly recovered at the instance of accused Bheshdhari was not produced in the court and shown to PW 25 SI Hans Raj during the course of his deposition. The said live cartridge was also not exhibited during the course of deposition of PW SC No.2178/2016 & 2214/2016 32 of 38 12 HC Gajender Singh. As per deposition of PW12 HC Gajender Singh, the danda allegedly recovered at the instance of accused Bheshdhari was not having any special identity mark. He admitted that the articles got recovered by accused Bheshdhari were visible from the bushes. Thus, nonjoining of public persons at the time of recovery of danda and live cartridge at the instance of accused Bheshdhari and nonexhibition of live cartridge during the course of deposition of recovery witnesses, the recovery of danda and live cartridge at the instance of accused Bheshdhari becomes highly doubtful.
63. In view of foregoing reasons, in my view, prosecution has failed to prove on record that accused Bheshdhari was found in possession of one live cartridge which is an ammunition as defined in The Arms Act.
64. It was submitted by learned counsel for accused persons that prosecution miserably failed to prove the motive for committing the offence by the accused persons. It is well settled principle of law that motive is an important element of crime which prosecution is required to prove but even if prosecution fails to prove the motive behind the crime even in that situation also the accused can be convicted and prosecution case cannot be doubted only on this account. In the case of Nizam & Another Vs. State of Rajasthan AIR 2015 SC 3430, it was held by Hon'ble Apex Court that even if prosecution fails to prove the motive, that will not be a ground to throw away prosecution case.
SC No.2178/2016 & 2214/2016 33 of 38
65. It was held by Division Bench of Hon'ble High Court of Delhi in the case titled as Naveen Dabas Vs. State 219 (2015) DLT 242 (DB) that "the motive is undoubtedly a significant element which the prosecution has to establish to fasten criminal liability upon an accused. In the case of direct evidence, motive fades into insignificance. However, where the trial is based upon circumstantial evidence, the need to prove motive gets highlighted. At the same time, motive is elusive in the sense that what impels someone to behave in the manner that he or she does, ultimately lies locked in his or her mind. It is, therefore, all the more difficult to prove motive - much less exclusively."
66. In view of aforesaid dictum pronounced by Hon'ble Superior Courts, it is clear that motive is a significant element which prosecution should prove to fasten the criminal liability upon an accused. However, merely on account of failure of proof of motive by the prosecution, the entire case of prosecution cannot be thrown away / dislodged.
67. In the present case, the injured Mohd. Sheru as well as prosecution witness PW6 Bablu @ Dablu have categorically deposed that the accused persons fired upon the injured and caused bullet injury to Mohd. Sheru. Though the prosecution failed to prove the motive for firing upon the injured, yet in the given facts and circumstances of the SC No.2178/2016 & 2214/2016 34 of 38 case, in my view, failure of motive for firing upon injured is not fatal to the case of prosecution.
68. It was further argued by learned counsel for accused persons that the Investigating Officer did not send the bullet taken out from the body of injured to FSL for examination. Hence, the said injury found on the body of injured stands not proved. He further argued that prosecution miserably failed to prove the case on all counts and hence, the accused persons are entitled to acquittal. The injured was examined in AIIMS Trauma Center vide MLC Ex.PW20/A. The contents of MLC Ex.PW20/A shows that the injured suffered grievous sharp injuries. It is not the fault of the victim if the Investigating officer did not send the bullet recovered from his body to FSL for examination. Recovery of bullet from the body of injured is an admitted fact. The fault committed by Investigating Officer during the course of the investigation, if any, cannot be ground to disbelieve the entire case of the prosecution.
69. Learned counsel for accused persons further argued that the Investigating Officer stated in his crossexamination that he reached at AIIMS Trauma Center where he met injured Mohd. Sheru who was found not fit for giving statement. He further submitted that in the application Ex.PW19/DA moved by IO for seeking permission of the doctor to record statement of injured Sheru, it is mentioned that patient SC No.2178/2016 & 2214/2016 35 of 38 was not present in the causality as mentioned at portion X. He submitted that the Investigating Officer neither met the injured in AIIMS Trauma Center nor recorded his statement.
70. Testimony of PW25 Retd. SI Hans Raj shows that as per his deposition, he went to Trauma Center in the evening and there he found that injured Sheru was referred to Safdarjung hospital. He stated that thereafter, he reached Safdarjung hospital and moved an application Ex.PW25/C for seeking permission of the doctor for recording statement of injured. He further deposed that the doctor declared the injured to be fit for statement and therefore, he recorded statement of injured Sheru under section 161 Cr.P.C. Even in his crossexamination, PW25 Retd. SI Hans Raj has stated that he left the spot and went to Trauma Center, AIIMS with Ct. Shailender, where he first met Duty Constable in Trauma Center. He categorically deposed that he did not go to AIIMS hospital. He has further deposed that he did not record statement of any person in Trauma Center, AIIMS at that time. He has reasserted that he first met Sheru in Safdarjung hospital, on 30.06.2011 where he recorded statement of Mohd. Sheru in about 1520 minutes.
71. Thus, considering the over all testimony of PW25 Retd. SI Hans Raj, no inconsistency is found in his deposition so far as recording of statement of injured Mohd. Sheru is concerned. Moreover, MLC of injured Mohd. Sheru Ex.PW20/A shows that he reached at the AIIMS SC No.2178/2016 & 2214/2016 36 of 38 Trauma Center on June 30 @ 00.44. The IO moved the application Ex.PW19/DA before CMO, AIIMS Trauma Center, New Delhi at about 4:35 pm. Since at that time, the patient was not present in casualty, therefore, a noting in this regard was given by the doctor. There is nothing on record to suggest that injured was not taken to AIIMS Trauma Center and he was not examined there.
72. It was also argued by learned counsel for accused persons that injured Mohd. Sheru is BC of the area. The prosecution failed to prove old enmity of the injured with the accused persons. He further submitted that the injured has falsely implicated the accused persons in this case. No cogent and sufficient reasons have been furnished by accused persons for their false implication in the case. They have also failed to prove their old enmity with the injured. If a person is BC of the area, the same does not give licence to others, to kill him or attempt to kill him without any rhyme or reason. There is no merit in the submissions of learned counsel for accused persons that since injured himself is BC of the area, therefore, he has falsely implicated the accused persons in this case.
73. For the reasons discussed above, I am of the considered view that prosecution has succeeded to prove its case for offence under section 307/34 IPC against all the three accused beyond all shadow of reasonable doubt. Prosecution has also succeeded to prove its case for SC No.2178/2016 & 2214/2016 37 of 38 offence under section 25 and section 27 of The Arms Act against accused Abid beyond all reasonable doubt. Accordingly, accused Bheshdhari @ Sanju @ Anand, Arvind Kumar Gupta @ Desilwa and Abid are hereby held guilty and convicted for having committed the offence punishable under section 307/34 IPC. Accused Abid is also convicted for committing the offence punishable under section 25 and section 27 of The Arms Act.
74. For the reasons mentioned in point for determination no.6, in my view, prosecution failed to prove the offence under section 25 of The Arms Act against accused Bheshdhari @ Sanju @ Anand. Therefore, he is hereby acquitted for the said offence.
75. Let accused persons be heard separately on the point of sentence.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 20.03.2017 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
SC No.2178/2016 & 2214/2016 38 of 38