Delhi District Court
State vs Sheru on 23 December, 2024
DLST010009592018
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT SAKET
COURTS, NEW DELHI
State Vs. Sheru
FIR No. 94/2013
PS Sangam Vihar
JUDGEMENT
1. Sl. No. of the case : 111/2018
2. Date of institution of the case : 16.11.2016
3. Name of complainant : State
4. Date of commission of offence : 03.03.2013
5. Name of accused, parentage : Sheru S/o Sh. Idrish, R/o F-6,
Navjeevan Camp, Govindpuri,
New Delhi
6. Offence complained of or proved : 307/34 IPC and 27 Arms Act
7. Plea of accused : Accused pleaded not
guilty
8. Final order : Acquitted
9. Date on which order was reserved : 17.12.2024
10. Date of pronouncement : 23.12.2024
FIR No.94/2013 State Vs. Sheru Page No. 1/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:55:24
+0530
1. Proceedings herein got initiated by way of receipt of DD No.53A dated
03.03.2013 PS Sangam Vihar regarding brother of caller having been shot by a
person named Sheru. On this, SI Manjeet alongwith Ct. Hira Lal reached at
the spot i.e., near Shiv Mandir whereupon they came to know that the injured
had been shifted to Batra hospital. During this course, on receiving DD No.5B
dated 04.03.2013, PS Sangam Vihar, SI Manjeet reached at Batra hospital
where he procured the MLC of injured Ved Prakash whereon in the history of
assault, gunshot injury was mentioned and nature of injuries was opined as
grievous. On request of SI Manjeet, doctor opined the witness Ved Prakash fit
for statement whereupon SI Manjeet recorded his statement. In the said
statement, injured alleged that he alongwith his friend Harender and another
boy was getting heat from the bone fire near main gate of Shiv Mandir, H-
Block, Gali No.16. At that time, some boys came on 3 motorcycles from the
side of Kumar Sweets and they stopped their motorcycles near them. Sheru,
who was residing in the jhuggi of Govindpuri and had met the injured 1-2
times earlier, was sitting pillion on one of the motorcycles. He allegedly came
near the injured and abused him. Thereafter, he started asking him about one
Besdari who was known to him(injured). When he stated that he was not
knowing anything about him, one of the boys with Sheru allegedly slapped
him. Sheru allegedly shot a fire in air from the katta like weapon which he was
carrying at that time and second bullet was fired on the right thigh of the
injured. Thereafter, on hearing the sound of police siren, they all fled on their
motorcycles. The friend of injured namely, Harender and the other boys
present with them had fled from there as soon as gunshot was fired. It was
FIR No.94/2013 State Vs. Sheru Page No. 2/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:55:33
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alleged that around 10-15 minutes thereafter, Harender had taken him to Batra
hospital in the car of his friend. Sheru was allegedly telling his accomplice
while fleeing that the bullet had hit in the leg so he will survive.
2. On the basis of aforementioned statement, FIR No. 94/2013 u/s 307/34
IPC was lodged at PS Sangam Vihar. After registration of FIR, investigation
was taken up. After completion of investigation, charge-sheet for the offences
u/s 307 IPC and 27 Arms Act was filed against accused before Ld. Magistrate
on 16.11.2016. After compliance u/s 207 Cr.P.C., matter was committed u/s
209 Cr.P.C. which was received by way of assignment by Ld. Sessions Court
on 02.02.2017. Same was received by this Court by way of transfer in terms of
order dated 30.07.2024 of Ld. Principal District & Sessions Judge (South) on
05.08.2024.
3. Charge for the offences u/s 307/34 IPC and Section 27 Arms Act was
framed against the accused on 01.03.2017 to which he had pleaded not guilty
and claimed trial.
4. In order to prove its case, prosecution examined following nine
witnesses:-
S.No. Name of Documents proved Role
Witness
Endorsement on Rukka as
PW-1 HC Ex.PW1/A, computerized copy of
1. Kailash FIR as Ex.PW1/B and certificate Duty Officer
Chand u/s 65B Indian Evidence Act as
Ex.PW1/C
FIR No.94/2013 State Vs. Sheru Page No. 3/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:55:42
+0530
His statement given to police as
PW-2 Sh. Ex. PW-2/A, arrest memo of
2. Complainant/injured
Ved Prakash accused Sheru as Ex.PW2/B and
pant of witness as Ex.P-1
Sketch of empty khol as
Ex.PW3/A, its seizure memo
PW-3 Ct. He with IO during
3. as Ex.PW3/B and seizure
Hira Lal investigation
memo of sealed pullanda of
pant of injured as Ex.PW3/C
Personal search memo of accused
PW-4 Ct. as Ex.PW-4/A and disclosure He was with IO
4.
Gopal statement of accused as Mark during investigation
PW4/A
DD No.53A as Ex.PW5/1, DD
No.5B as Ex.PW5/2, tehrir as
PW-5 SI Ex.PW5/3, site plan as Ex.PW5/4 1st IO
5.
Manjeet and empty cartridge as
Ex.PW5/P1
His request seeking opinion from
PW-6 Retd. doctor containing endorsement 2nd IO of the case
6. SI Shabbir who had filed
made by doctor at Batra Hospital
Ahmad charge-sheet
as Ex.PW6/A
PW-7 Sh. Statement u/s 161 Cr.P.C. as Eye witness of the
7.
Harender Mark PW-7/A incident
He proved the MLC bearing no.
9197 dated 04.03.2013 pertaining
PW-8 Sh. to injured Ved Prakash by Record Clerk from
8. Manoj
identifying the signature and Batra Hospital
Kumar
handwriting of Dr. Prunandu as
Ex.PW8/A
9. PW-9 Dr. Opinion on the MLC Ex.PW8/A He was called for
FIR No.94/2013 State Vs. Sheru Page No. 4/27
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2024.12.23
16:55:49
+0530
proving the nature
of injuries as
Asif Beig
concerned doctor
had left the hospital
5. After examination of prosecution witnesses, PE was closed on
13.11.2024. Statement of the accused u/s 313 Cr.P.C. was recorded on
23.11.2024 wherein he pleaded his innocence. He stated as under:-
“He has deposed falsely against me. I did not commit any such offence. I had
never met Ved Prakash. I had never gone to Sangam Vihar as alleged. Friends
of Ved Prakash namely Abid Hussain, Arvind Desilva and Sanju @ Besdari
were convicted on the basis of my testimony in case FIR No.208/2011, u/s 307
IPC, PS Govind Puri. In that case, I was attacked with gunshots and knives.
Abid Hussain was an accomplice with Ved Prakash in case FIR No.580/2013,
U/s 302/34 IPC, PS Govind Puri. After FIR No. 208/2011 PS Govind Puri,
three false cases including the present one were got registered against me to
pressurize me. One case was pending before the Court of Ms. Neera
Bhariaoke, the then Ld. ASJ wherein Abid had shot himself and falsely
implicated me. I was acquitted in that case. In another such case filed at the
instance of Arvind Desilva, I was exonerated by ACP after making special
inquiry. This is also a false case.”
6. Sh. Shambhoo Dutt, Judicial Assistant, Record Room Sessions, South-
East District, Delhi was examined as DW-1 by accused in his defence. DW-1
placed on record the summoned record i.e., judgments pertaining to FIRs
registered at PS Govindpuri bearing Nos. 208/2011, 213/2011, 580/2013 and
1296/2014 as Ex.DW1/A(OSR) (common judgment pertaining to FIR No.
FIR No.94/2013 State Vs. Sheru Page No. 5/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:55:55
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208/2011 and FIR No. 213/2011), Ex.DW1/B (OSR) and Ex.DW1/C(OSR)
respectively. He was not cross-examined by Ld. Addl. PP for State despite
opportunity. Thereafter, DE was closed on 03.12.2024.
7. Arguments heard.
8. It has been argued by Ld. Addl. PP for State that prosecution has
successfully proved its case beyond reasonable doubts for commission of
offences in question against the accused. It has been submitted that the MLC
of the injured on record corroborates the case of prosecution. It has been
submitted that DD No. 53A dated 03.03.2013 PS Sangam Vihar on record
contains the name of accused as the one who had shot the brother of the caller
in H-Block, Gali No. 16, Shiv Mandir. It has been submitted that the phone
number of the caller has also been mentioned there. It has been submitted that
though it could not be clarified during trial as to whom the said number
belongs, however same might be belonging to Harender or Nishant who were
present alongwith injured at the relevant time. It has been submitted that this
conclusion is strengthened by the fact that as per PW-2 as well as PW-7,
injured was taken to the hospital by PW-7 (Harender) alongwith one Nishant
and in the MLC of the injured, same phone number has been mentioned. It has
been further submitted that PW-2 Sh. Ved Prakash has deposed consistently
before the Court. It has been submitted that PW-7 who is an eye witness to the
incident though could not identify the accused however in his cross-
examination by Ld. Substitute Addl. PP, he admitted the suggestion that he
FIR No.94/2013 State Vs. Sheru Page No. 6/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:01
+0530
was unable to identify the accused as he had not seen him after the incident in
question which happened in the year 2013. It has been submitted that it shows
that his inability to identify the accused might be due to lapse of time. It has
been submitted that an empty cartridge was recovered from the spot thereby
further corroborating the case of prosecution. It has been submitted that the
testimony of an injured witness carries more weight as no such person will
ordinarily like to let the real culprits go scot-free. It has been submitted that
PW-2 in his examination-in-chief stated that accused had fired upon him
however in his cross-examination, he stated that he had fired on his leg. It has
been submitted that use of firearm, without taking into consideration the injury
received as a result thereof, in itself was sufficient to show the intention of the
accused to kill the complainant. He has prayed for conviction of the accused.
He has relied upon the following judgments:-
(a) Vasant Vithu Jadhav Vs. State of Maharshtra, Crl. Appeal No.
522/1997 (SC);
(b) Sivamani And Anr. Vs. State, Crl. Appeal No. 3619/2023 (SC);
(c) Kamal Singh Vs. State of U.P., Crl. Appeal No. 1496/1995 (Allahabad
HC).
9. Per contra, it has been submitted by Ld. Defence Counsel that the case
of prosecution is full of doubts. It has been submitted that it is not clear as to
who had made call to police at 100 number. It has been submitted that no
investigation was conducted on this particular aspect. It has been submitted
that as per the FIR, injured Ved Prakash was present at the spot soon before
FIR No.94/2013 State Vs. Sheru Page No. 7/27
Digitally
signed by
SUNIL SUNIL
Date:
GUPTA
GUPTA 2024.12.23
16:56:09
+0530
the incident with one Harender and another boy who was not known to him
however, in his testimony before the Court, he suddenly referred to that other
boy as his friend Nishant. It has been submitted that as per the FIR, several
boys had come on three motorcycles whereas as per PW-7, three persons had
come on a motorcycle. It has been submitted that it is worth noting that PW-7
did not state anything regarding him having called the police. It has been
stated PW-7 in his testimony has clearly mentioned that the accused had
covered their faces with a piece of cloth at the time of incident in question. It
has been submitted that is it also not clear as to how the name of the accused
came to be mentioned in the FIR. It has been submitted that as per PW-2, he
came to know about the name of the accused from Harender however as per
PW-7 Sh. Harender, he was told about his name by the injured Ved Prakash. It
has been submitted that no recovery of weapon has been effected from the
accused and no bullet was recovered from inside the body of injured. It has
been submitted that as per the MLC on record, injured was referred for
surgery consultation. It has been submitted that in case, the injury was serious,
he would have been straightaway referred for surgery. It has been submitted
that there is nothing on record to suggest as to whether the injured had taken
any further treatment. It has been submitted that no medical record pertaining
to further treatment, if any, has been placed on record. It has been submitted
that the injury suffered by injured Ved Prakash is on his thigh which is not a
vital part of the body. It has been submitted that as per PW-9, bullet injury can
be simple and non dangerous also in certain cases. It has been submitted that
the accused was not arrested from the spot rather he was arrested after aroundFIR No.94/2013 State Vs. Sheru Page No. 8/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:17
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1 ½ months of the incident from outside the Saket Court Complex. It has been
submitted that accused herein has been falsely implicated in this case as he
had lodged case FIR No. 208/2011, PS Govindpuri against one Bheshdhari @
Sanju @ Anand, Arvind Kumar Gupta @ Desilwa and Abid who were friends
of Ved Prakash and present FIR was got registered soon thereafter to
pressurize him. It has been submitted that Bheshdhari, Abid and Desilwa were
convicted in that case vide judgment dated 20.03.2017 of Ld. ASJ-02, South-
East, Saket Courts. It has been submitted that it has been mentioned in the
charge-sheet itself that PW-2/injured had told the police about Sanju @
Bheshdhari, Arvind @ Desilwa and Mohd. Abid being his own men. It has
been submitted that in these facts, when the alleged weapon of offence has
also not been recovered from the accused, there is no sufficient material
against him on record. Prayer has been made for his acquittal.
10. In rebuttal, it has been submitted by Ld. Addl. PP that call made to
police vide DD No. 53A dated 03.03.2013 PS Sangam Vihar soon after the
incident is relevant U/s 6 of the Indian Evidence Act as res gestae. It has been
submitted that same can be taken into consideration by the Court even when
the maker of the call has not been identified as such.
11. I have considered the submissions from both the sides alongwith
record.
FIR No.94/2013 State Vs. Sheru Page No. 9/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:25
+0530
12. Accused herein has been charged with for the commission of offences
U/s 307/34 IPC and Section 27 Arms Act. PW-2 Sh. Ved Prakash and PW-7
Sh. Harender are the two material witnesses examined by prosecution as they
had allegedly witnessed the incident in question. Another alleged eye witness
namely Nishant could not be examined as he had expired on 09.07.2019. In
his testimony dated 29.08.2017 before the Court, complainant/PW-2 Sh. Ved
Prakash stated that on 03.03.2013 at about 11:30 PM, he alongwith his friends
namely Harender and Nishant was sitting near main gate of Shiv Mandir, H-
Block, Gali No. 16, Sangam Vihar near bone fire and at that time, some boys
came on three motorcycles from the side of Kumar Sweets. He stated that they
stopped the motorcycles in front of them and one of the boys namely Sheru
(accused herein) started making queries about the person namely Besdari from
him to which he stated that he was not knowing him. He further stated that
thereafter, the boy accompanying the accused slapped him and accused Sheru
made a fire in the air. Thereafter, he again fired upon him (PW-2) due to which
the bullet hit on his right thigh. He stated that police siren sound was coming
from distance and after hearing the same, accused and his associates fled from
there. He stated that when accused fired, his friends Harender and Nishant had
ran away and when the accused alongwith his associates had escaped from
there, they both came back and took him to Batra Hospital in a vehicle. He
stated that at the hospital, police of Sangam Vihar met him and recorded his
statement (Ex.PW-2/A). He was discharged from the hospital after treatment.
He stated that he had accompanied IO to the place of incident and had shown
the same to him on which site plan was prepared. He stated that after about 1
FIR No.94/2013 State Vs. Sheru Page No. 10/27
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SUNIL SUNIL
Date:
GUPTA
GUPTA 16:56:32
2024.12.23+0530
or 1 ½ month of the incident, he came to Saket Court alongwith IO where he
saw and identified accused Sheru as the one who had committed the offence in
question upon which he was arrested. He also stated that after some days, he
was called to the police station with regard to other accused persons whose
names were disclosed by the accused Sheru to police upon which he told that
no such person as disclosed was involved in the incident. He stated that he
cannot identify the empty cartridge case which was seized from the spot as
same was not seized in his presence. He correctly identified a black colour
pant produced by MHCM as the one belonging to him which he was wearing
at the time of incident.
13. In his cross-examination, he stated that he was not knowing the
accused and that he had seen him 2-3 times prior to the incident in the vicinity
of Govindpuri. He stated that he came to know his name from his friend
Harender who used to reside in Hamdard Nagar, Sangam Vihar. He stated that
he came to know about the name of accused through Harender about 7 years
back. He denied the suggestion that there was friendship between Harender
and Sheru. He admitted the suggestion that the place where they were sitting
near bone fire was having sufficient light. He stated that he and his friends did
not notice the registration number of the motorcycle. He stated that he had
seen the faces of the persons who were driving the motorcycle and they were
not in muffled face. He volunteered to say that he was unable to recollect as to
whether motorcycle driver was wearing helmet or not. Accused Sheru was
stated to be sitting as a pillion rider on a black splender motorcycle. He stated
FIR No.94/2013 State Vs. Sheru Page No. 11/27
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signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2024.12.23
16:56:38
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that Basedari was known to him since about 8-9 years. He stated that the
Basedari was residing in Govindpuri. He stated that he was knowing Abid. He
admitted the suggestion that Basedari was the friend of his elder brother. He
admitted that 3-4 cases were pending against him apart from a case u/s
323/324 IPC, PS Sangam Vihar pending in Court No. 212. He also admitted
that one murder case involving 6 accused including him and Abid pertaining
to PS Govindpuri was also pending before Sessions Court. He stated that he
was taken to hospital in a car driven by his friend Nishant which was parked at
some distance. He denied the suggestion that he had falsely implicated the
accused at the instance of Abid. He denied the suggestion that accused was not
present at the spot at the time of incident or that he had deposed falsely.
14. PW-7 Sh. Harender deposed on 14.10.2024 that the incident had
happened before the day of jagran held on 10.03.2013. He stated that on the
intervening night before 12 midnight, he alongwith one Nishant, Ved Prakash
(PW-2) and another boy whose name he was not able to recollect was sitting
near bone fire near main gate of Shiv Mandir. He again stated it was probably
3rd or 4th March 2013. He stated that in the meanwhile, three persons came on
the motorcycle and stated talking with Ved Prakash after alighting from the
motorcycle. He stated that he was not knowing those persons and that one of
them fired in the air. He stated that thereafter, that person also shot Ved
Prakash in his leg due to which he fell down and afterwards all the three
accused left the spot on the motorcycle whereas he alongwith Nishant took
injured Ved Prakash in the car of Nishant to the Batra Hospital. He stated that
FIR No.94/2013 State Vs. Sheru Page No. 12/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:45
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before shooting Ved Prakash on his leg, those persons were asking from him
about one Veshdari and injured was saying that he was not knowing anything
regarding him. He stated that he cannot identify the accused as all of them
had covered their faces with a piece of cloth. As the witness did not support
the case of prosecution, he was cross-examined by Ld. Addl. PP for State with
permission of the Court wherein he stated that he was not knowing Sheru who
was resident of Jhuggi of Govindpuri. He denied the suggestion that he had
told police that out of three accused persons, one was Sheru who was residing
in Jhuggi of Govindpuri or that he was known to him prior to the incident. He
was confronted with his statement U/s 161 Cr.P.C. in this regard. He
volunteered to say that Ved Parkash had told him about Sheru. He admitted
that he had not told police that those boys had covered their faces. Accused
Sheru present in the Court was specifically pointed out to him and he was
asked as to whether he was able to identify him to which he replied in
negative. He admitted the suggestion that he was unable to identify the
accused as he had not seen the accused after the incident. He denied the
suggestion that he was in constant touch with accused over phone after the
incident. He further denied the suggestion that he was deliberately not
identifying the accused as he had been won over by the accused and wanted to
save him.
15. In his cross-examination by Ld. Defence Counsel, he denied the
suggestion that several public persons had gathered at the spot after the
incident. He stated that he did not personally know Veshdari. He further stated
FIR No.94/2013 State Vs. Sheru Page No. 13/27
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signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:52
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that he do not know the number of motorcycle on which the assailants had
come. He stated that he was not taken to the spot by IO after the incident. He
volunteered to say that Ved Prakash was so taken to the spot. He admitted that
he knew Abid residing in Govindpuri who is BC of that area. He stated that he
was not knowing him before the incident. He denied the suggestion that Ved
Prakash had got injured in a quarrel between them on that day or that no one
had come on the motorcycle and had not shot him in the leg. He denied the
suggestion that present case was falsely registered.
16. PW-8 Sh. Manoj Kumar, Record Clerk from Batra Hospital has
proved the MLC of complainant Ved Prakash as Ex.PW8/A. He identified the
signatures and handwriting of Dr. Prunandu, the then Chief Medical Officer
on the same because had seen him writing and signing during the course of his
official duty. In his cross-examination, he stated that in the year 2015, around
200-250 doctors were working at Batra Hospital and that he can identify
signatures and handwriting of all those doctors. He denied the suggestion that
he could not have identified the handwriting/ signatures of Dr. Prunandu. Ld.
Defence Counsel has sought to discredit the testimony of PW-8 on the ground
that it would not have been possible for anyone to identify
handwriting/signatures of 200-250 doctors. His submission is that the MLC
has not been proved as per law. This Court is unable to agree with said
submission of Ld. Defence Counsel. There is no dispute to the fact that PW-8
Sh. Manoj Kumar was working as Record Clerk on 04.03.2013 when the
MLC in question was prepared by Dr. Prunandu. He has specifically stated
FIR No.94/2013 State Vs. Sheru Page No. 14/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:56:59
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that he had seen Dr. Prunandu writing and signing during the course of his
official duty. He was not cross-examined on this specific aspect. He was not
even given a suggestion that he had not seen Dr. Prunandu writing or signing
as such. In these facts, this Court is of the view that the identification of
signatures and handwriting of Dr. Prunandu by PW-8 cannot be doubted.
Whether PW-8 could have actually identified signatures and handwriting of all
200-250 doctors working at Batra Hospital at that time, is not relevant due to
his clear testimony qua signatures and handwriting of Dr. Prunandu.
17. As per MLC (Ex.PW8/A) on record, history of injury was disclosed to
the doctor as ‘gunshot at Sangam Vihar 11:30 pm 03/03/13’. Entry and exit
wounds were observed on his right thigh alongwith abrasion on left thigh.
Injuries have been opined to be grievous. ‘Surgery Consultation’ has also been
mentioned in the MLC. PW-9 Dr. Asif Beig while deposing about the MLC
(the doctor who had prepared the MLC, had left the hospital) stated that injury
sustained by gun shot is also considered as dangerous. In his cross-
examination by Ld. Defence Counsel, he stated that he cannot say as to
whether any surgery was conducted on the patient Ved Prakash. He also stated
that he cannot say on the basis of MLC as to whether any vital part of body of
the patient was injured. He stated that bullet injuries can be simple and non
dangerous also in certain cases. He stated that he was not a forensic expert to
answer the question as to whether the injuries in question could have been
sustained by the patient by way of self-infliction.
FIR No.94/2013 State Vs. Sheru Page No. 15/27
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:06
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18. Now the question to be examined is as to whether the prosecution has
successfully proved that the said injury was caused by the accused Sheru.
19. It is settled law that the testimony of an injured eye witness cannot be
brushed aside lightly. Regarding the manner in which such a testimony is to be
appreciated, this Court is guided by the judgment of Hon’ble Apex Court in
Balu Sudan Khalde And Anr. Vs. The State of Maharashtra, Crl. Appeal No.
1910/2010 wherein on this aspect, it was held as under:-
“26. When the evidence of an injured eye-witness is to be
appreciated, the under- noted legal principles enunciated
by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not allow
the real culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured, but notFIR No.94/2013 State Vs. Sheru Page No. 16/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:14
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the whole evidence.
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage of
time should be discarded.
27. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether,
in the circumstances of the case, it is possible to believe
their presence at the scene of occurrence or in such
situations as would make it possible for them to witness
the facts deposed to by them and secondly, whether there
is anything inherently improbable or unreliable in their
evidence. In respect of both these considerations,
circumstances either elicited from those witnesses
themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value
which a Court would attach to their evidence. Although
in cases where the plea of the accused is a mere denial,
the evidence of the prosecution witnesses has to be
examined on its own merits, where the accused raise a
definite plea or put forward a positive case which is
inconsistent with that of the prosecution, the nature of
such plea or case and the probabilities in respect of it will
also have to be taken into account while assessing the
value of the prosecution evidence.”
20. Having said that, it is to be noted that accused in his statement u/s 313
Cr.P.C. before the Court stated that he had been falsely implicated by the
complainant Ved Prakash, whom he had never met, as his friends Abid
Hussain, Arvind Desilva and Sanju @ Beshdari were involved in case FIR No.
208/2011, u/s 307 IPC, PS Govindpuri at his instance. He also stated that he
FIR No.94/2013 State Vs. Sheru Page No. 17/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:21
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was falsely implicated in three different cases (including the present one) after
that. He also stated that out of those three cases, he was acquitted in one after
trial whereas in another case, he was exonerated by police after making special
inquiry. He stated that present case was also false and was got registered
against him to pressurize him. It has come on record by way of testimony of
DW-1 Sh. Shamboo Dutt, Judicial Assistant from Record Room Sessions
(South-East) that in case FIR No. 208/11, PS Govindpuri pertaining to an
incident dated 29.06.2011 lodged for the injuries caused to Sheru (accused
herein), three persons namely Bheshdari @ Sanju @ Anand, Arvind Kumar
Gupta @ Desilwa and Abid were convicted for the offence u/s 307/34 IPC
vide judgment dated 20.03.2017 of Ld. ASJ-02 (South-East). It has also come
on record that accused Sheru was acquitted in case FIR No. 34/17, PS
Govindpuri pertaining to an incident dated 08.12.2014 lodged at the instance
of one Abid Ahmad vide judgment dated 17.01.2018 of Ld. ASJ-06 (South-
East). Similarly, it has come on record that Abid was co-accused with Ved
Prakash @ Lala (complainant herein) in case FIR No. 580/13, PS Govindpuri
wherein all six of them were acquitted vide judgment dated 01.10.2022 of Ld.
ASJ-05 (South-East). In the chargesheet filed against the accused, it has been
mentioned that he had allegedly disclosed about involvement of Chander
Prakash, Sanju @ Bheshdari, Arvind @ Desilwa and Mohd. Abid in the
present case which was refuted by complainant Ved Prakash saying that they
were his own men. In his cross-examination also, PW-2 admitted that he was
knowing Bheshdari since last 8-9 years and that he was friend of his elder
brother. He also admitted that Abid was co-accused with him in a murder case
FIR No.94/2013 State Vs. Sheru Page No. 18/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
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pertaining to PS Govindpuri pending in Sessions Court. He had denied the
suggestions to the effect that accused was falsely implicated in this case at the
instance of Abid or that he had caused the bullet injury himself to falsely
implicate the accused. In these facts, the defence of accused to the effect that
he was falsely implicated at the instance of Abid and Bheshdari (friends of
complainant) due to registration of case FIR No. 208/11 PS Govindpuri
against them at his instance cannot be brushed aside lightly. Admittedly, FIR
No.208/11, PS Govindpuri was registered prior to registration of present case.
In these circumstances, the material on record will have to be examined
carefully because as held by Hon’ble Apex Court in Ramashish Ray Vs.
Jagdish Singh (2005) 10 SCC 498, previous enmity can, on the one hand,
provides motive while on the other hand, the possibilty of false implication
cannot be ruled out.
21. As rightly argued by Ld. Addl. PP for State, name of the accused
Sheru as having caused the injury in question came on record for the first time
in DD No. 53A dated 03.03.2013 PS Sangam Vihar(Ex.PW5/1). As per the
same, the caller informed the police that his brother had been shot near H-
Block, Gali No. 16, Sangam Vihar by a person named Sheru. The call was
made from the phone no. 9136153969. It is to be noted that same phone
number has been mentioned in the MLC of the injured (Ex.PW8/A) also
however the prosecution has failed to bring on record anything to the effect as
to who was using that number at the relevant time. Testimonies of PW-2 Sh.
Ved Prakash and PW-7 Sh. Harender are silent on this vital aspect. So, it
FIR No.94/2013 State Vs. Sheru Page No. 19/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:34
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remains unclear as to who had made the call regarding the incident to the
police naming accused Sheru as the assailant. Ld. Addl. PP has stated that the
phone number must be belonging either to PW-7 Sh. Harender or PW Nishant
who could not be examined due to his demise. This Court is of the view that
no such assumption can be drawn on this vital aspect and it was the duty of
prosecution to establish by way of cogent evidence as to who was the caller to
police. Ld. Addl. PP for State has also submitted that information contained in
DD No. 53A can be treated as res gestae because it was communicated to
police soon after the incident so as to form part of same transaction. To
appreciate this contention, it is relevant to quote here the appropriate provision
of law. Section 6, Indian Evidence Act, 1872 provides as under:-
“6. Relevancy of facts forming part of same
transaction.- Facts which, though not in issue, are
so connected with a fact in issue as to form part of
the same transaction, are relevant whether they
occurred at the same time and place or at different
times and places.
Illustrations:
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or after
it as to form part of the transaction, is a relevant
fact.
(b) A is accused of waging war against the
[Government of India] [Substituted by A.O. 1950,
for “Queen”.]by taking part in an armed
insurrection in which property is destroyed, troops
are attacked, and goals are broken open. The
occurrence of these facts is relevant, as forming
part of the general transaction, though A may not
have been present at all of them.
FIR No.94/2013 State Vs. Sheru Page No. 20/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:41
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(c)A sues B for a libel contained in a letter forming
part of a correspondence. Letters between the
parties relating to the subject out of which the libel
arose, and forming part of the correspondence in
which it is contained, are relevant facts, though
they do not contain the libel itself.
(d)The question is, whether certain goods ordered
from B were delivered to A. The goods were
delivered to several intermediate persons
successively. Each delivery is a relevant fact.”
22. This rule is, in a sense, an exception to the general rule that hearsay
evidence is not admissible. The import of Section 6 has been explained by
Hon’ble Apex Court in Gentela Vijayavardhan Rao And Anr Vs. State Of
Andhra Pradesh, AIR 1996 SC 2791 as under:-
“The principle or law embodied in Section 6 of the
Evidence Act is usually known as the rule of res
gestae recognised in English Law. The essence of
the doctrine is that fact which, though not in issue,
is so connected with the fact in issue “as lo form
part of the same transaction-becomes relevant by
itself. This rule is, roughly speaking, an exception
to the general rule that hearsay evidence is not
admissible. The rationale in making certain
statement or fact admissible under Section 6 of the
Evidence Act is on account of the spontaneity and
immediacy of such statement or fact in relation to
the fact in issue. But it is necessary that such fact
or statement must be part of the same transaction.
In other words, such statement must have been
made contemporaneous with the acts which
constitute the offence or atleast immediatelyFIR No.94/2013 State Vs. Sheru Page No. 21/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:57:48
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thereafter. But if there was an interval, however
slight it may be, which was sufficient enough for
fabrication then the statement is not part of res
gestae. In R. v. Lillyman, (1896) 2 O.B. 167 a
statement made by a raped woman after the
ravishment was held to be not part of the res gestae
on account of some interval of time lapsing
between making the statement and the act of rape.
Privy Council while considering the extent up to
which this rule of res gestae can be allowed as an
exemption to the inhibition against nearsay
evidence, has observed in Teper v. Reginam,
(1952) 2 All E.R. 447, thus :
“The rule that in a criminal trial hearsay evidence
is admissible if it forms part of the res gestae is
based on the propositions that the human utterance
is both a fact and a means of communication and
that human action may be so interwoven with
words that the significance of the action cannot be
understood without the correlative words and the
dissociation of the words from the action would
impede the discovery of the truth. It is essential
that the words sought to be proved by hearsay
should be, if not absolutely contemporaneous with
the action or event, at least so clearly associated
with it that they are part of the thing being done,
and so an item or part of the real evidence and not
merely a reported statement.”
“The correct legal position stated above needs no
further elucidation.”
23. It is clear from above that to consider something as res gestae, the
words sought to be proved should be contemporaneous with event in qustion
in such a manner so as to be part of thing being done and not merely a
FIR No.94/2013 State Vs. Sheru Page No. 22/27
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SUNIL GUPTA
GUPTA Date:
2024.12.23
16:57:54
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statement reported by someone. The statement is not to be considered as part
of res gestae, if the interval between the two is sufficient enough for
fabrication. As per PW-2, incident in question had happened at around 11:30
PM whereas DD No. 53A was lodged at 11:55 PM. As mentioned earlier, it is
not clear from record as to who had made the call to police. It is also not clear
as to from which place the call was made. In these circumstances, this Court is
of the view that the aforementioned DD cannot be treated as res gestae
because there is considerable gap between the incident in question and the
time when DD was lodged giving sufficient time for fabrication.
24. Though PW-2 has deposed against the accused and has stated that he
had fired upon him which resulted in gunshot injury on his right thigh
however, there are certain material points in his testimony which are worth
mentioning here. As rightly pointed out by Ld. Defence Counsel, in his initial
statement given to police (Ex.PW2/A), PW-2 had stated that at the time of
incident, he was accompanied with Harender and one unknown boy whereas
in his testimony before the Court, he identified that boy as his friend Nishant.
It is not clear as to why the identity of Nishant was not disclosed by him to the
police at the first instance. As per PW-2, he was taken to hospital by PW-7
Harender and Nishant in the car driven by Nishant but he did not mention
anything about the make of vehicle, its registration number or its owner. As
per him, the vehicle did not belong to Nishant whereas PW-7 stated that the
vehicle was belonging to Nishant. Also, PW-2 did not state anything about the
registration number, make or color of the motorcycles on which the accused
alongwith his accomplices had come to the spot either in his statement given
FIR No.94/2013 State Vs. Sheru Page No. 23/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:58:00
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to police (Ex.PW2/A) or in his examination-in-chief. In his cross-examination,
he stated that the motorcycle on which accused Sheru was riding pillion was
black splendor. It is not clear as to why this vital fact was not disclosed by him
earlier. Similarly, PW-2 stated that the offenders had come on three
motorcycles whereas PW-7 stated that they had come on one motorcycle. As
mentioned earlier, PW-7 did not support the case of prosecution on the point
of identification of accused Sheru. Ld. Addl. PP for State has sought to
downplay the failure of PW-7 on this aspect by relying upon his statement in
cross-examination conducted by Ld. Subst. Addl. PP wherein he admitted that
he was unable to identify the accused as he had not seen him after the incident
in question which had happened in the year 2013. It is worth nothing here that
as per PW-7, the accused had covered their faces with a piece of cloth so there
was no possibility for him having seen the face of accused Sheru. In these
circumstances, his failure to identify the accused cannot be justified on the
ground that he could not do so due to lapse of time. Interestingly, as per PW-2,
name of accused Sheru was disclosed to him by PW-7 Harender whereas as
per PW-7, PW-2 had told him about the accused.
25. A per PW-5 SI Manjeet, after registration of FIR, he had went to spot
and injured (PW-2) had also arrived there after being discharged from the
hospital. He further stated that during search at the spot, one empty cartridge
case was recovered. As per PW-2, before the accused had shot him in the right
thigh, he had fired a shot in air. So, there should have been two empty
cartridge cases at the spot but the recovery of only one such case without any
FIR No.94/2013 State Vs. Sheru Page No. 24/27
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SUNIL GUPTA
GUPTA Date:
2024.12.23
16:58:06
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explanation creates doubt on the case of prosecution. As per the MLC of PW-2
on record (Ex.PW-8/A) and the testimony of PW-9, the bullet was not found in
the body of PW-2. Same might have exited because the exit wound was
present on his right thigh. It is surprising that the police was able to find the
empty cartridge case however, the bullet which had hit PW-2 could not be
found. None of the witnesses stated anything on this aspect. It is an admitted
case of the prosecution that the alleged weapon of offence could not be
recovered from the accused Sheru. So, the only evidence against him on
record is his identification by PW-2 which seems doubtful for the reasons
mentioned above.
26. As deposed by PW-6 Retired SI Shabbir Ahmad, during the course of
investigation, he had tried to obtain the opinion qua the nature of injury
sustained by the injured Ved Prakash from Batra Hospital by a request letter.
As per the request letter dated 17.06.2015 on record (Ex.PW-6/A), he had
posed three questions to the doctor concerned. One of the questions was
whether the injury has been caused from a bullet. The second question was
what could have been the distance from which the bullet was fired. The third
question was whether any bullet/splinter was found from the body of victim.
In response thereto, it was written on 14.07.2015 that there was no forensic
expert at the hospital. Thereafter, it was specifically written by Dr. Vipul Sud,
Medical Director of Batra Hospital & Medical Research Center that Dr.
Purnandu had left the hospital on 30.09.2015. Resultantly, the queries of SI
Shabbir Ahmad remained unanswered. Interestingly, the first question posed
FIR No.94/2013 State Vs. Sheru Page No. 25/27
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SUNIL
SUNIL GUPTA
GUPTA Date:
2024.12.23
16:58:13
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by him to the doctor to the effect as to whether the injury was caused by a
bullet shows that investigating agency was also not sure about the weapon of
offence. May be because it was not specifically so opined by the doctor in the
MLC and there was no other scientific evidence to indicate the same. In view
of the Court, the absence of opinion as to from how much distance the bullet
was fired and the failure of investigating agency to provide any explanation
for absence of any bullet/splinter which had allegedly hit the complainant was
enough to create doubt in the case of prosecution in these peculiar facts. As
mentioned earlier, the accused was having previous enmity with the friends of
the complainant so his false implication cannot be ruled out.
27. It is cardinal principle of criminal law that an accused is presumed
innocent until he is held guilty by a Court of competent jurisdiction. The onus
to prove the case against the accused lies upon the prosecution which has to
prove its case beyond reasonable doubt. If two views are possible on the
evidence available, one pointing to the guilt of the accused and the other to his
innocence, the one favourable to the accused ought to be adopted.
28. Considering the above discussion, this Court is of the view that the
prosecution has failed to prove its case against the accused beyond reasonable
doubt. It will not be safe to convict him on the basis of oral testimony of the
complainant alone which too is suffering from several infirmities as
mentioned earlier.
FIR No.94/2013 State Vs. Sheru Page No. 26/27
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SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.23
16:58:21
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29. Accordingly, accused Sheru stands acquitted of all the offences.
Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.12.23 16:58:28 +0530 Announced in the open (Sunil Gupta) Court on 23rd December, 2024 Additional Sessions Judge-06, South, Saket Courts, New Delhi FIR No.94/2013 State Vs. Sheru Page No. 27/27