Delhi District Court
State vs Manoj Kumar on 6 April, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 119/07
FIR No. 95/07
P.S. Nangloi
U/s 302 IPC
& 25/54/59 Arms Act
State Versus Manoj Kumar
S/o Sh. Vishwanath Prasad,
R/o House no. RZQ7,
Gurudwara Wali gali,
Nihal Vihar, Nangloi,
Delhi.
Date of Receipt : 31.05.2007
Date of Conclusion of arguments : 01.04.2010
Date of Decision : 03.04.2010
JUDGMENT :
1. The accused Manoj Kumar has been chargesheeted by PS Nangloi for commission of offence under Section 302 IPC and 25/54/59 Arms Act.
2. Story of prosecution in brief is that on 01.02.2007 at about 10.45 pm, FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 1/28 Laxmi heard some noise outside her house, where the STD booth was situated. She noticed that her brother Ujaghar Singh was having some altercation with accused Manoj. Accused Manoj took out a katta and fired a gun shot on the neck of Ujaghar Singh. Ujaghar Singh fell down and started bleeding. Laxmi raised alarm and chased the accused, but he succeeded in fleeing. She removed injured with her brotherinlaw Samarjit to Sanjay Gandhi Memorial Hospital, where Ujaghar Singh was declared brought dead. FIR was registered. During investigation, the accused was apprehended. He confessed the commission of crime and also got recovered the katta used in the commission of offence. In the katta, one empty shell was found and accused also got recovered one live cartridge. Katta, empty shell and live cartridge were seized. These were sent to FSL for analysis. After completion of the investigation, the charge sheet against the accused was filed in the Court.
3. Learned Metropolitan Magistrate after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
4. The accused was charged for the offence punishable U/s 302 IPC and FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 2/28 for the offence punishable u/s 25/54/59 Arms Act by my learned Predecessor. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. Prosecution in order to bring home the guilt of the accused, examined 27 witnesses. IO of the case Ins. Ishwar Singh could not be examined as he died on 10.03.2008 during the pendency of the case. Thereafter, Ld. Addl. PP closed the prosecution evidence.
6. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the entire evidence. He stated that he has been falsely implicated in this case. He did not wish to lead evidence in defence. Thereafter the case was fixed for final arguments.
7. I have heard arguments from Ms. Neeta Gupta, the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused and perused the record.
8. Ld. Addl. PP submitted that in the present case, there were two eye witnesses namely Laxmi examined as PW1 and Vishnu examined as PW25. Learned Addl. PP submitted that PW1 is the real sister of the FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 3/28 deceased, but simply because she is the real sister of the deceased, her testimony cannot be discarded. There is no such rule of law that testimony of a close relative cannot be relied upon. Ld. Addl. PP in support of her arguments relied upon the judgment cited as Dharam Pal vs. State of U.P., AIR 2008 SC 920, wherein, it was held that :
"The evidence of the witness who were relatives of deceased cannot be discarded in the absence of any infirmity in said evidence."
She has fully supported and corroborated the prosecution case on all material particulars. Ld. Addl. PP submitted that PW1 deposed in her examinationinchief that :
"..... I heard a voice as my younger brother Ujjagar was having altercation with someone infront of my house. I came out from my house to see my brother as where he was going leaving the shop. And when I came out I saw my brother Ujjagar there and accused present in the court today (witness correctly identified the accused by pointing out her finger) was also there and he fired gun shot on his neck after a little altercation. I raised alarm and chased the accused...."
9. Learned Addl. PP submitted that this statement of PW1 clearly FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 4/28 shows that it was the accused who fired gun shot on the neck of Ujjagar, the deceased. According to the prosecution story, the other eye witness was Vishnu, who has been examined as PW25. PW25 Vishnu has not fully supported the prosecution casae. He was also crossexamined by the Ld. Addl. PP, but despite that his statement is very important. He in his statement, proves the presence of PW1 on the spot and at the same time, he also establishes and proves the presence of the accused also on the spot. Ld. Addl. PP submitted that merely because, he was crossexamined by the Ld. Addl. PP, that does not mean that his entire testimony has to be discarded. It is well settled principle of law that testimony of a hostile witness can also be considered and relied upon. Ld. Addl. PP relied upon the judgment cited as State of U.P. v. Ramesh Prasad Misra and another (1996) 10 SCC 360, wherein it was held that : "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of prosecution or defence may be accepted."
Ld. Addl. PP also relied upon the judgment cited as Radha Mohan Singh vs. State of U.P., AIR 2006 SC 951.
FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 5/28
10. Learned Addl. PP submitted that the fact that PW1 was also on the spot is also evident from the testimony of PW4 Sawarjit Prasad, who stated that : "At about 11 p.m, I heard a noise of my sister in law from the gali. I came out and found my brother in law Ujjagar lying injured"
It is important to note that Sawarjit Prasad is the husband of sister of PW1. This witness has also stated that she was there and it is not disputed. Even in the MLC, it is mentioned that it was Laxmi, who brought Ujjagar Singh to Sanjay Gandhi Memorial Hospital. Ld. Addl. PP submitted that from all this evidence, it is clear that it was PW1 Laxmi, who was on the spot and witnessed the incident and shifted the injured to the hospital. She correctly identified the accused that he is the person, who fired on the neck of the deceased. The ocular evidence about the fact that deceased was fired with a fire arm at his neck, is also corroborated by the postmortem report, which is proved on record Ex. PW13/A. According to this report, following external injuries were found on the dead body :
1. Fracture and dislocation of upper central incisor tooth
2. Incise looking lacerated wound on right side of neck just below mastoid region of size 6 cm x 1.5 cm x cavity deep. FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 6/28 Abraded caller of size 0.5 cm present all around the circumference. Margins were inverted. (entry wound of the fire arm)
3. Lacerated wound on the back of neck just below posterior hair line .5 cm x .5 cm x cavity deem. Margins were everted. (exit wound of fire arm) Cause of death is given as "cranio cerebral damage consequent to fire arm injury". Fire Arm injury is antimortem in nature.
11. Learned Addl. PP submitted that from all this documentary and medical evidence, the ocular evidence of PW1 is fully corroborated. According to this postmortem report, which was conducted on 02.02.2007 at about 2.30 pm, the time since death was 16 hours, which comes to the time of incident as deposed by PW1, that is around 10.30/10.45 pm. Learned Addl. PP submitted that so far as the credibility of PW1 is concerned, she has stood through the test of crossexamination. The defence taken is that there was no light on the spot and the defence in his regard has been relied upon the testimony of photographer examined as PW16, who stated that he took photographs by using search light and there was no other source of light. Learned Addl. PP submitted that these photographs were FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 7/28 taken between 12.40 am to 1.10 am, whereas this incident has taken place at around 10.30/10.45 pm. PW1 and other witnesses have stated that there was sufficient light. Even in the scaled site plan Ex. PW7/A, the source of light has been shown. Other witnesses have also stated that there was sufficient light as it was coming from the bulbs installed outside the houses. So far as the testimony of PW25 is concerned, Ld. Addl. PP submitted that he does not say that there was no light. It was only PW2, who was examined in chief on 25.04.2008 and was recalled after about seven months for cross examination and he turned hostile and stated that there was no arrangement of light in the street. Ld. Addl. PP submitted that keeping in view the fact that he was crossexamined after a period of more than six and half months and he turned hostile and did not support the prosecution case, clearly shows that he was won over by the defence and under these circumstances, his testimonyinchief can be relied upon. Learned Addl. PP in support her arguments relied upon the judgment cited as Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, AIR 1999 SC 1853.
12. Ld. Addl. PP submitted that PW2 in his examinationinchief specifically stated that he rented out the ground floor of the house no. C16, Chandan Vihar, Nangloi to one Laxmi, wife of Sant Ram and her FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 8/28 brother Ujjagar Singh was also staying with her. He has further stated that :
"On the intervening night of 1/2.2.2007, I was sleeping in my house and on hearing a crises of Laxmi, it came to my knowledge that some one had fired gun shot at Ujjagar and he was shifted to hospital by Laxmi where Ujjagar expired later on."
Ld. Addl. PP submitted that from the testimony of PW2, it is clear that Laxmi along with her husband and deceased was residing there. In the crossexamination of this witness, it has come on record that Ujjagar Singh was running the STD Booth, which was situated in front of his house. Learned Addl. PP submitted that so far as PW1 is concerned, she has stood through the test of crossexamination and there is no reason to disbelieve the testimony of PW1. The accused was later on apprehended and he refused to join the Test Identification Parade (TIP), but that is not of much importance as the accused has correctly been identified by PW1 and PW25. The accused also got recovered a katta (countrymade pistol) and when it was opened, it was found containing one empty shell. The accused also got recovered one live cartridge. The recovery of the weapon and cartridges also establish that accused used the same for FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 9/28 committing the murder of Ujjagar Singh and that is why, empty shell was found inside it.
13. Ld. Addl. PP submitted that it has also come in the evidence that countrymade pistol, which the accused got recovered from his house was in working order and empty shell as well as live cartridge were ammunition as per the definition provided by the Arms Act as deposed by PW26. The report of the expert has also been proved on record as Ex. PW26/A. Learned Addl. PP submitted that onus, which was on the prosecution has fully been discharged and it is proved that accused caused the murder of Ujjagar Singh by firing on his neck from the pistol Ex. P2, which he later on got recovered. Ld. Addl. PP submitted that keeping in view all these facts corroborated by medical evidence, the accused be held guilty and convicted.
14. On the other hand, Learned defence counsel submitted that in the present case, the investigation has not been properly conducted and the accused has been falsely implicated in this case. It has come in the testimony of PW25 that there were many suspects in the commission of offence and PW25 himself was one of the suspect. He was also kept in the custody of the police and interrogated in this case. Under these circumstances, his statement allegedly recorded FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 10/28 on 02.02.2007 is in fact an after thought and he was introduced later on as witness to implicate the accused in this case. The testimony of PW1 has also been later on recorded only to implicate the accused, who is an innocent person. Learned defence counsel submitted that firstly, there was no light on the spot and therefore, possibility of identification of accused by PW1 and PW25 itself is doubtful. Learned defence counsel submitted that prosecution witness PW2 himself has stated that :
" It is correct that there is no streetlight in the street, where my house is situated. There is no arrangement of light in the street. One cannot identify any person in the street after the sunset, unless the said person is known to me."
Learned defence counsel submitted that the testimony of this witness finds corroboration from PW16, who stated that :
"I took these photographs between 12.40 am to 1.10 am. I took the photographs in emergency light, which was with the crime team. There was no other source of light on the spot."
15. From the testimonies of PW2 coupled with the testimony of PW16, it is clear that there was no light on the spot. Even PW7 stated that there was no electric bulb on the electric pole, which clearly shows FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 11/28 that there was no provision for the street light and according to PW2, it was dark and it was not possible to identify any person. Under these circumstances coupled with the fact that PW25 clearly says that he was kept in the police station for 2/3 days and acused was shown to him and PW1 was also called there, clearly shows that accused was falsely implicated in this case. He was shown to the witnesses in the Police station leading to his identification in the court. The ground that he was shown to the witnesses in the police station, was already taken by the accused, when he refused to join the TIP proceeding. The TIP proceeding has already been proved on record as Ex. PW12/C, wherein he stated that :
"Main TIP nahi karwana chahta, kyonki muje Nangloi thane me IO ne marne wale ke rishtedaro ko dikha diya tha. I pese se nai hoon aur illake me muje sub jante hai"
16. Learned defence counsel submitted that in view of this fact, it is clear that IO of the case has manipulated the evidence and the accused was already shown to the witness and the statements were manipulated.
17. Learned defence counsel further submitted that presence of PW1 on the spot is itself doubtful. If she would have been there, the FIR FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 12/28 should have been registered on her statement, but FIR is not on her statement. She also stated that she chased the accused along with PW25, but PW25 is silent on his aspect. This again creates a doubt about the presence of PW1.
18. Learned defence counsel submitted that according to the story of the prosecution, injuries caused on the person was with fire arm, whereas according to the MLC of the deceased, proved on record as Ex. PW 5/A, there was incised wound, right side of neck of around 6 cm x 1 cm x 1 cm. This MLC does not show that there was any fire arm injury on the person of deceased. Secondly, this document also does not show that there was any other injury also on the person of deceased. Even the details of PCR Form shows that Ujjagar Singh sustained injuries with some sharp object as has come in Ex. PX, wherein Sunita, sister of the deceased that Ujjagar Singh has sustained injuries with some sharp object.
19. Learned defence counsel submitted that information given by Sunita to the PCR and the MLC proved by the prosecution Ex. PW5/A clearly shows that Ujjagar Singh sustained injuries with some sharp object and that is why, doctor has referred the injury as incised wound. Interestingly, in the postmortem report Ex. PW13/A, the doctor has FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 13/28 referred the three injuries. Doctor has also noticed one exit wound on the neck, which was not mentioned by the doctor, who prepared the MLC Ex. PW5/A. This itself creates doubt about the truthfulness of the postmortem report and also of the witnesses examined by the prosecution.
20. Learned defence counsel submitted that next evidence is about the recovery of weapon of offence. Learned counsel submitted that PW 19 Ct. Surender was also with the IO when allegedly, the recovery was effected. According to prosecution case, it was the accused, who got recovered the katta Ex. P2. Ld. Defence counsel submitted that testimony of PW19 in this respect is very important, who stated in this crossexamination that :
"I do not remember how many stories were there in the house of the accused as it was night time. I remained at the gate of the house along with accused and only Ins. Ishwar Singh and SI Jai Parkash went inside the house. Ins. Ishwar Singh and SI Jai Parkash brought a katta, one empty shell, one cartridge in a polythene from inside the house."
21. Learned defence counsel submitted that in view of the testimony of PW19, it is clear that the recovery was not at the instance of the FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 14/28 accused and it was not the accused, who produced the katta before the police, as the accused along with PW19 remained outside the house. So far as the testimony of Ins. Jai Parkash is concerned, he was examined as PW23 and his testimony on this aspect is also very important. He stated during crossexamination that :
"The house of the accused was of double story. Accused was living on the first floor. The staircase to the first floor was from inside the house. I had not seen any other person on the ground floor or the first floor of said house. I did not inquire about the owner of the house."
Learned defence counsel submitted that according to this witness, the accused was residing on the first floor, but nobody met him inside the house, either on the ground floor or first floor, meaning thereby that the accused was in the custody and his house was lying open, which is something unbelievable.
22. Learned defence counsel submitted that from the testimony of these witnesses, the recovery of katta at the instance of the accused has become doubtful. There is no evidence also that this is same katta, which was used in the commission of crime. No opinion from the doctor was taken about the weapon, even the wax powder which was FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 15/28 lifted from the wound was not sent to FSL for analysis. Learned defence counsel submitted that keeping in view all these contradictions, benefit of the same be given to the accused and he be acquitted.
23. After hearing the arguments and going through the record, I found that so far as the eyewitnesses are concerned, there were two eye witnesses i.e. PW1 Laxmi and PW25 Vishnu. PW25 has not supported the prosecution case, whereas PW1 has fully supported and corroborated the prosecution case. It is well settled principle of law that testimony of even hostile witness can be relied upon. Before coming to the statement of PW1, it is important to refer to the statement PW2. According to this witness, PW1 was residing as tenant in his house and his brother Ujjagar Singh was also staying with her. He also stated that on the intervening night of 1/2.2.2007, he was sleeping in his house and on hearing the cries of Laxmi, he woke up and he came to know that some one had fired on Ujjagar. During crossexamination, he also stated that Ujjagar Singh was running a STD booth. Learned defence counsel has tried to discredit this witness on the strength of crossexamination conducted after more than 6 months, wherein he took a 'U' turn. However, even in that crossexamination, he admitted that Laxmi was living with her brother FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 16/28 in his house as tenant and Ujjagar Singh was running a STD booth. The other witness, who removed the injured to the hospital was PW4. He stated that at about 11.00 pm, he heard a noise of his sisterinlaw from the gali and he came out and thereafter, he removed Ujjagar to hospital. There is no crossexamination of PW4 on this aspect. From the testimony of these two witnesses, it is clear that PW1 was residing there along with deceased Ujjagar and Ujjagar was running a STD booth. These two witnesses also prove the presence of PW1 on the spot.
24. Now, I come to the testimony of PW25. He has turned hostile, but still he proves the presence of PW1 on the spot and also of the accused. He also stated that Ujjagar Singh was having a STD Booth. Corroborating the testimony of PW1, he correctly identified the accused that he was talking with the deceased and there is no cross examination of PW25 about the presence of Laxmi on the spot. In view of all this, it is clear that Laxmi was there. It is also well settled principle of law that testimony of a close relative cannot be a ground by itself to discredit a witness, particularly when presence of that person is not disputed. PW1 has correctly identified the accused. He also stated that accused was talking with the deceased and this testimony of PW1 finds corroboration from the testimony of PW25, FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 17/28 who also stated that accused was talking with the deceased. PW1 stated that accused fired on the neck of the deceased. The only discrepancy in the testimony of PW1 and PW25 is that according to PW1, she chased the accused along with PW25, whereas PW25 is silent on this aspect. In my opinion, this does not discredit PW1 of its own merit. PW1 has been crossexamined at length, but she stood through the test of crossexamination. The attack on the testimony of PW1 is also on the ground of light. According to defence, there was not sufficient light on the spot and it was not possible for PW1 to see and identify the accused. Ld. Defence counsel in this respect relied upon the testimony of PW2, who stated during his crossexamination that : "It is correct that there is no street light in the street, where my house is situated. There is no arrangement of light in the street. One cannot identify any person in the street after the sunset, unless the said person is known to me."
25. Learned defence counsel has also relied upon the testimony of PW 16, who stated that : "I took these photographs between 12.40 am to 1.10 am. I took the photographs in emergency light, which was with the crime team. There was no other source of light on the spot." FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 18/28
26. Learned defence counsel submitted that even SI Mahesh Sharma, who prepared the scaled site plan and was examined as PW7 stated that there was no bulb on the electric pole shown in the site plan, meaning thereby that there was no light and it was not possible for PW1 to recognize and identify the accused, but I do not agree with the contention of the learned defence counsel, as So fas the testimony of PW2 is concerned, his testimony clearly shows that he was own over by the defence. Secondly, PW1 has stated that :
"It is correct that there is no official street light but lights are there outside the houses. Light is also installed outside my house and as well as the house of our neighbour. The bulbs installed for lighting are not of zero watt and there was proper light at that time."
Even, in the site plan Ex. PW7/A, the source of light has been shown. It is also relevant to mention here that there is no such suggestion to PW23 SI Jai Parkash and also to PW25 Vishnu that there was no light on the spot. Therefore, in view of the testimony of PW1 and site plan Ex. PW7/A, I do not find any force in the arguments that there was no light. So far as, PW16 is concerned, it is important to mention here that PW16 is referring to the time of 12.40 am to 1.10 am, when he took the photographs, whereas this incident has taken placed at about 10.45/11.00 pm, when the people FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 19/28 were still awake and moving in the street. Under these circumstances, I found that testimony of PW1 is fully corroborated by the documentary evidence i.e. Site plan Ex. PW7/A and statement of PW7. I do not find any force in this arguments that there was no light. Even otherwise, PW25 identified the accused as the person, who was talking with the deceased, meaning thereby that there was light and that is why, he was able to see him. It is important to note that there is no crossexamination to PW25 on this aspect. So far as the issue of showing the accused to PW1 is concerned, she has specifically stated that accused was not shown to her in the police station and that she did not visit the police station with PW25.
27. Learned defence counsel submitted that testimony of PW25 is not reliable as he remained in the police station and he was also one of the suspect. In my opinion, this admission by PW25 before the court itself shows his credibility and trustworthiness. He had spoken the truth that he was also one of the suspect and police had taken him. Therefore, in my opinion, testimony of PW25 cannot be discarded merely because, he was one of the suspect in this case, particularly when he has also stood through the test of crossexamination and the defence has not been able to breach the veracity of this witness. FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 20/28
28. According to PW1, the accused fired on the neck of the deceased. There is some discrepancy in the postmortem report and MLC Ex. PW5/A. In the MLC Ex. PW5/A, doctor has referred to only one incised wound and there is no reference to any other wound, but in the postmortem report, doctor has referred to one entry wound and one exit wound. After going through both these documents, I found that doctor who prepared MLC Ex. PW5/A declared the injured brought dead and referred one wound i.e. Incised wound, right side of neck of around 6 x 1 x 1 cm. Whereas, in the postmortem report, the doctor has referred three injuries :
1. Fracture and dislocation of upper central incisor tooth
2. Incise looking lacerated wound on right side of neck just below mastoid region of size 6 cm x 1.5 cm x cavity deep. Abraded caller of size 0.5 cm present all around the circumference. Margins were inverted. (entry wound of the fire arm)
3. Lacerated wound on the back of neck just below posterior hair line .5 cm x .5 cm x cavity deem. Margins were everted. (exit wound of fire arm) From the observations made in the MLC, it is clear that the doctor in the MLC was referring to injury no. 2 referred in the postmortem report and he has referred as incised wound in the postmortem report, who FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 21/28 has examined the body in detail, clearly mentioned that wound appeared to be incised, whereas it was a lacerated wound and in fact was an entry wound of fire arm. The doctor who conducted postmortem, has also found one exit wound of the fire arm. The doctor during postmortem examined the body in detail, therefore, in my opinion, much importance cannot be attached to MLC Ex. PW5/A, wherein doctor after finding the person to be dead has referred the same to the mortuary without examining or taking care of the person as according to him, he was already dead and was not required any medical attention. Therefore, not much importance can be attached to this negligence conducted on the part of the doctor, who prepared the MLC Ex. PW5/A. There is nothing on record that any injury was caused to the deceased after he was declared dead. There is no crossexamination to PW13 on this aspect that injury no. 3 mentioned in the postmortem report was caused later on or not antimortem in nature.
29. Keeping in view all these facts, I do not find any reason to disbelieve the postmortem report Ex. PW13/A. The postmortem report finds corroboration from the testimony of PW1 that accused fired on the neck of the deceased and she removed the injured to the hospital. This fact is also corroborated by MLC Ex. PW5/A that Laxmi brought FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 22/28 the injured to the hospital. So far as the PCR call details and the entry on PCR form is concerned in my opinion, much importance cannot be attached to the same as the PCR messages are just to set the police machinery into motion so as to make them reach the place of occurrence or to take the victims to the hospital or to bring them into action for taking measures as the circumstances of the case may warrant. No evidentiary value can be attached to such cryptic statements. In any case, such statements cannot be considered at a higher pedestal than statements made under section 161 of the Code of Criminal Procedure. In having this view, I find support from the judgment titled as Sanjeev Nanda v The State, Crl. Appeal no. 807/2008, Rajiv Gupta v. State (Govt. of NCT of Delhi) Crl. Appeal N. 767/2008 and Bhola Nath & another v. State (Govt. of NCT of Delhi) Crl. Appeal no. 871/2008 - Date of decision :
20.07.2009 - Justice Kailash Gambhir.
30. Learned defence counsel submitted that according to the postmortem report, wax powder from the abraded collar side was taken and same was sent to FSL for detection of presence of gun powder, but same was returned, which clearly shows that prosecution has failed to prove that it was a fire arm injury, but I do not agree with this contention of learned defence counsel, as PW26, who appeared FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 23/28 from the FSL Rohini as ballistic expert, stated in his crossexamination that wax powder from abraded collar was returned back, because no control sample was sent with above said sample. Keeping in view this statement of expert, I do not find that on this ground, any benefit can be given to the accused.
31. So far the recovery of the weapon of offence, is concerned, there were two witnesses Ct. Surender and SI Jai Parkash. According to the story of the prosecution, the recovery was at the instance of the accused and he got recovered the weapon. HC Surender was examined as PW19 and SI Jai Parkash was examined as PW23. Ins. Ishwar Singh in this case could not be examined as he died during the pendency of the case. PW19 HC Surender stated that : "I do not remember how many stories were there in the house of the accused as it was night time. I remained at the gate of the house along with accused and only Ins. Ishwar Singh and SI Jai Parkash went inside the house. Ins. Ishwar Singh and SI Jai Parkash brought a katta, one empty shell and one cartridge in a polythene from inside the house. Vol. It was not a big house."
PW23, during his crossexamination stated : "The house of the accused was of double storey. Accused FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 24/28 was living on the first floor. The staircase to the first floor was from inside the house. I had not seen any other person on the ground floor or the first floor of the said house. I did not inquire about the owner of the house.
32. From this testimonies of PW19 and PW23, it is clear that accused did not get recover the katta as he remained outside the house. It is also surprising that when the accused remained outside the house, who opened the door of his house, whether it was lying open and if somebody was there, who was present. The onus was on the prosecution to prove the recovery of the katta, empty shell and live cartridge at the instance of the accused, in which, in my opinion, the prosecution has failed to prove.
33. From the above discussion, I found that prosecution has successfully proved that it was the accused, who fired on the neck of the deceased Ujjagar Singh and caused his death, but prosecution has failed to prove the recovery of weapon at the instance of the accused. I, therefore, hold the accused guilty u/s 302 IPC, but acquit him u/s 25/54/59 Arms Act. He is convicted accordingly.
Announced in open Court
on today i.e. 03.04.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 25/28
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 119/07 FIR No. 95/07 P.S. Nangloi U/s 302 IPC & 25/54/59 Arms Act State Versus Manoj Kumar S/o Sh. Vishwanath Prasad ORDER ON THE POINT OF SENTENCE 06.04.2010 Present: Ld. APP for the State.
Convict produced from J.C with Sh. Neeraj Yadav, Adv. Arguments heard on the point of sentence and perused the file. Ld. Counsel for the convict submitted that convict is aged about 36 years and he is not a previous convict and has no previous criminal record ; He is the first offender ; he is having wife and four minor children ; he is the sole bread earner of the family. Learned counsel submitted that murder FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 26/28 committed was not gruesome or diabolic and does not fall within the category of the rarest of the rare case. It is prayed that a lenient view may kindly be taken.
On the other hand, Ld. Addl. PP for the State submitted that convict caused the death of one innocent person. It is prayed that in view of the fact that convict killed one innocent person, no leniency be shown towards him and severest punishment be awarded.
Keeping in view all the submissions, facts and circumstances of the case, I found that for awarding Capital punishment, the case must fall in the category of rarest of the rare cases, but facts and circumstances of the present case, does not make this case falling under that category. No doubt, he murdered one innocent person, but as per the guidelines laid down by the Hon'ble Supreme Court in the various judgments, this case does not fall under that category. Keeping in view the gravity of offence, I sentence the convict Manoj Kumar to life imprisonment along with a fine of Rs. 5,000/ for the offence punishable u/s 302 IPC, in default of payment of fine, to undergo R.I., for six months.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 27/28 File be consigned to record room.
Announced in open Court
on today i.e. 06.04.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
DELHI
FIR no. 95/07 PS Nangloi State Vs. Manoj Kumar Page 28/28