Sanjay Kumar Gupta vs The State, Govt. Of Nct Of Delhi
2009 Latest Caselaw 3608 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on: 01.09.2009
%                                                     Date of decision: 07.09.2009


+                               CRL. A. No.417 of 2009


SANJAY KUMAR GUPTA                                         ...APPELLANT
                                Through:        Mr. Sumeet Verma, Advocate.


                                          Versus


THE STATE, GOVT. OF NCT OF DELHI         ...RESPONDENT
                     Through: Mr. Pawan Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   No

2.        To be referred to Reporter or not?                    No

3.        Whether the judgment should be
          reported in the Digest?                               No

SANJAY KISHAN KAUL, J.

1. The appellant, Sanjay Kumar Gupta, was charged with the

offence under Section 302 of the IPC of committing the

murder of deceased Mohd. Tabrez on 12.6.2004 with a

katta (country made pistol) and for offence under Sections

25/27 of the Arms Act, 1959 (for short „Arms Act‟). On

framing of charges he pleaded not guilty and claimed trial.

In terms of the impugned judgement and order of sentence

the appellant has been held guilty of both offences under

Section 302 of the IPC and under Sections 25/27 of the

Arms Act and sentenced to undergo rigorous imprisonment _____________________________________________________________________________________________

for life and pay fine of Rs.2,000.00 for the offence under

Section 302 of the IPC while for offences under Sections

25/27 of the Arms Act, has been sentenced to undergo RI

for a period three years and pay fine of Rs.1,000.00 in

respect of each of the two offences. The appeal has, thus,

been preferred against the judgement dated 30.1.2009 and

the order of sentence dated 2.2.2009.

2. It is the case of the prosecution that the appellant used to

drive a bus while the deceased used to ply a rickshaw.

About 10-12 days prior to the incident the deceased was

stated to have purchased a mobile phone from the

appellant for which some balance payment was outstanding

which was not paid despite the demand. On 12.6.2004 at

about 1:30/2:00 p.m. the appellant came to the shop of one

Mohd. Maqbool (PW-2), who is the brother of the deceased

complaining about the failure of the deceased to pay the

balance amount to the appellant. The appellant was

accompanied by his wife. The wives of the appellant and

Mohd. Maqbool are sisters. The said PW-2 claims that he

asked the appellant to reach his jhuggi and that he would

bring the deceased there itself. The deceased, Mohd.

Maqbool and one Afzal are stated to have gone to the

jhuggi of the appellant where hot words are stated to have

been exchanged between the appellant and the deceased.

The appellant is stated to have brought out a country made

pistol and fired at the deceased whereupon the deceased

fell down in a pool of blood. Mohd. Maqbool attempted to

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apprehend the appellant and raised an alarm whereafter

many persons gathered and the appellant was

apprehended at the spot. The country made pistol was

snatched from the appellant and the appellant was

apprehended. The police on arrival took the appellant into

custody and the katta was handed over to the police. The

deceased was rushed to Sanjay Gandhi Hospital where he

was declared „brought dead‟.

3. The case of the prosecution is primarily based on the

testimonies of Maqbool, PW-2 and Afzal, PW-3 both of

whom were with the deceased and in the jhuggi where the

incident took place. Thus, the testimonies of these two

witnesses have to be examined carefully. PW-2 stated in

the examination-in-chief what has been recorded

hereinbefore. In the cross-examination PW-2 has

categorically stated that the deceased, Afzal and PW-2 were

inside the jhuggi of the appellant and that they had gone to

make the payment of the money. The suggestion that the

said three persons had come to beat up the appellant has

been denied. The suggestion made that the katta was fired

actually by PW-2 at the appellant and by mistake the bullet

hit the deceased, who died, has been denied. It has also

been stated that the single shot was fired inside the jhuggi.

A suggestion has been made to these witnesses in cross-

examination that he owed a sum of Rs.18,000.00 to the

appellant which was the genus of the dispute and it has

been stated that the deceased had informed PW-2 that he

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had to pay some money to the appellant though the exact

amount had not been disclosed. The deceased is stated to

have been carrying the money along with mobile but the

same was not handed over to the appellant as prior to that

a quarrel broke out.

4. It is important to note at this stage itself that neither any

money nor the mobile were found on the deceased after his

death. PW-2 has stated that he had not taken out the

money and the mobile from the pocket of the deceased.

The PW-2 who was present in the jhuggi has also stated

that "I cannot say as to on what account the dispute

between the two took place". He has, however,

categorically stated that Afzal was also present there and

that a lot of hue and cry was raised during the quarrel as a

result of which the public persons had gathered at the site.

It has been specifically denied that Afzal was not present at

the time of the incident. The said witness stated that the

police also recorded the statement of the public persons

though the witness did not know the name of such persons.

Once again, it is important to note that no such public

witness has been produced by the prosecution.

5. The testimony of PW-3, Afzal, in his cross-examination has

supported what has been deposed by PW-2. However, in

the cross-examination he has made the following

statement:

"I do not know whether we had gone to make the payment of remaining amount to the accused or we had gone to settle the matter. I did not enter the hutment of the jhuggi of accused. I kept standing _____________________________________________________________________________________________

near the staircase. I did not go to the first floor of the jhuggi or my Mami even after hearing the sound of fire. It is wrong to suggest that nothing happened in my presence. The deceased was fired in my presence."

6. The aforesaid shows that on the one hand PW-3 claims to

be inside the jhuggi and assisted in the apprehension of the

appellant while in the same breath he has stated that he

never entered the hutment or the jhuggi of the appellant

and kept standing near the staircase. The incident

happened on the first floor of the jhuggi and he has stated

that he did not go to the first floor even after hearing the

sound of fire (gunshot). Immediately thereafter, once

again, the witness has denied the suggestion that he did

not happen to be present and he affirmed that the

deceased was fired at in his presence. The aforesaid

jumbling up of the narration of the incident by PW-3

becomes vital in the present matter as PW-2 was not only

an interested witness being the brother of the deceased but

the allegation of the defence was that it was actually PW-2,

who had fired the shot at the appellant which accidentally

hit the deceased. The admission made in the cross-

examination by PW-3 shows that he was not present inside

the jhuggi and thus only the appellant, the deceased and

PW-2 were present in the jhuggi. He has reaffirmed this

fact by stating that he did not even go to the first floor of

the jhuggi where the incident took place even after hearing

the sound of fire (gunshot).

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7. If this testimony is compared with what has been stated by

PW-2 it belies the statement alleging presence of PW-3 in

the jhuggi and it appears that PW-3 was waiting at the

ground floor. Another important aspect of the testimony of

PW-2 noticed above is his statement that the deceased had

accompanied him with the money and with the mobile to

settle accounts with the appellant. If this was so, there was

no reason for any altercation. The appellant would have

been more than happy to receive the money. If the money

would have been carried along with mobile the same would

have been found on the body of the deceased. PW-2 has

stated that he had never removed the money and the

mobile from the pocket of the deceased. The fact remains

that no such money or mobile phone was recovered from

the body of the deceased, nor the money or the mobile

phone were recovered from the personal search of the

appellant as is apparent from the personal search memo of

the appellant (Exhibit PW-2/G) which reveals only Rs.102/-,

one purse and an impounding slip of the driving license

were recovered from the appellant when the appellant was

arrested.

8. It is equally important to note that the katta was not

recovered from the appellant by the police nor has any

material evidence been led to connect the katta to the

appellant other than the testimonies of PW-2 and PW-3. It

is the version of these two witnesses that the katta was in

the hand of the appellant who fired the same and on the

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attempt of the appellant to run away from the spot was

apprehended by PW-2, PW-3 and other public persons at

the site and that PW-2 snatched the katta from the hand of

the appellant. The connection of the katta with the

appellant has not been established other than this

testimony and if this testimony is in doubt then no such

connection is established especially as no public witness

has been examined. The trial court on the testimonies of

these two witnesses has, in fact, found that the deceased

had not gone to meet the appellant accompanied by PW-2

& PW-3 with the object of repaying the balance money as

alleged by PW-2. Thus, the trial court itself has found

inconsistencies in the testimonies of PW-2 & PW-3. There

are, however, two facts, which have weighed with the trial

court in convicting the appellant.

9. The first fact taken into account is that the pant and the

shirt of the appellant were found to have bloodstains. The

shirt had bloodstains of a blood group of the deceased

while insofar as the pant is concerned it could only be

verified that the blood was human. This established fact

coupled with, admittedly, some dispute having occurred

where hot words were exchanged, have been held by the

trial court to be conclusive to prove that the katta was fired

by the appellant and not by PW-2. The second factor which

has weighed with the trial court is that the bullet shot had

hit the deceased in front of right side of the chest and thus

the bullet wound was forced from the front. The trial court

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concluded that the entry of the bullet was such that it could

be fired by a person standing just opposite and thus it could

not be that the bullet was fired by PW-2 at the appellant

and by mistake hit the deceased.

10. Learned counsel for the appellant has explained that if what

is stated by PW-2 would have been correct, PW-2 would

naturally have tried to save his brother or handled his body

and the bloodstains would have come on the clothing of

PW-2. No such bloodstains were found. The bloodstains

were found on the clothes of the appellant which, if at all,

would support the theory that it is the appellant who was

helpful and was framed by PW-2. Learned counsel also

drew our attention to the postmortem report (Exhibit PW-

12/A) to contend that the entry wound was on the right side

of the chest but the exit wound was on the back of the left

side of the chest. Thus, the bullet wound was diagonal and

not a straight one. The testimony of PW-12, Dr. V.K. Jha,

who conducted the postmortem establishes "singing and

tattooing present spreaded up to the front of chest upper

side" (on the right side of the chest) showing that the firing

had taken place from a close range.

11. On appreciation of evidence as discussed aforesaid as also

the testimony of the IO, PW-21 as also ASI, Roop Chand,

PW-15 clearly show that the incident took place on the first

floor room where the blood was found. The wound was

caused by the country made pistol which was recovered.

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However, other than testimonies of PW-2 & PW-3 there was

no evidence produced to link the weapon to the appellant.

12. We have discussed the testimonies of PW-2 & PW-3 in detail

which are the relevant testimonies relied upon to convict

the appellant and if the same are inconsistent then the

benefit of doubt has to go to the appellant. We find that

even the trial court has found inconsistencies in the

testimonies of the said two witnesses. It belies the story as

set up by PW-2. We also cannot lose sight of the fact that

the defence set up is that it is PW-2 who fired the bullet at

the appellant and by mistake hit his brother, the deceased.

No independent witnesses have been examined. We do not

find that the conviction of the appellant can be sustained

on the two grounds as set out in the impugned judgement.

13. The trial court has assumed that the wound is a straight

one and directly on the right side of the chest. The wound

has been inflicted from a close distance but then the jhuggi

itself was a small one measuring approx. 7 ft. X 6 ft. The

wound, as apparent from the testimony of PW-12 and the

postmortem report, is a diagonal one and not a straight

one. Thus, one of the reasons for the trial court to have

accepted the versions of the firing of the katta by the

appellant cannot be sustained. Insofar as the blood being

found on the clothes of the appellant is concerned there

could be more than one situation where such blood could

have been so found including an effort of the appellant to

handle the body of the deceased if his version was to be

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accepted of the firing by PW-2. This can hardly be the sole

ground on which the case can be said to have been proved

beyond all reasonable doubt against the appellant. The

conviction of the appellant is dependent on the testimonies

of PW-2 & PW-3. Once their testimonies are found to be

inconsistent on crucial aspects including about presence of

PW-3 in the room and the very object of the visit (to repay

the amount to the appellant) the testimonies of these two

witnesses become unreliable and it would not be proper to

sustain the conviction of the appellant based on the

testimonies of these two witnesses.

14. The alternative plea of the learned counsel for the appellant

on the issue of the offence being one under Section 304

Part-II of the IPC relying upon the pronouncement in Pappu

@ Hari Om Vs. State of Madhya Pradesh 2009 (4) SCALE

521 needs no further discussion as we have found that the

appellant is entitled to the benefit of doubt in view of the

testimonies of PW-2 & PW-3 being inconsistent and not

trustworthy.

15. The appellant is accordingly acquitted giving him the

benefit of doubt and be released forthwith, if not wanted in

any other case.

SANJAY KISHAN KAUL, J.

SEPTEMBER 07, 2009                                           AJIT BHARIHOKE, J.
b'nesh

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