SURESH KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) Present appeal has been filed against the impugned judgment dated 05.06.2012 and order on sentence dated 04.08.2012, whereby the appellant has been sentenced to undergo life imprisonment for the offence punishable under Section 302 of Indian Penal Code and fine of Rs.10,000/- and in default of the payment of fine rigorous imprisonment for six months. Appellant has been further sentenced to undergo simple imprisonment for three months for the offence punishable under Section 30 of the Arms Act and fine of Rs.1,000/- and in default of payment of fine further simple imprisonment for one month.

(2.) Mr. Sumeet Verma, Advocate appearing on behalf of appellant submits that the impugned judgment is contrary to the well settled principle of criminal law and the law laid down by the Hon'ble Supreme Court of India in various cases. It is also contended that learned Trial Court has totally ignored the facts and circumstances of the case and the impugned judgment is totally contrary to the evidences. It is further contended that the learned Trial Court has erred and failed to consider the material lapse in the present case and also failed to take into account the material contradictions in the statements of witnesses with respect to the time of incident. It is contended that as per PW1 Brijesh Pandey, the incident took place on 6.4.2010 at 2:00 a.m. in the night while as per PW2 Chanderbali Pandey, the incident took place at 9:45 p.m. It is further contended that these contradictions go to the root of the matter as both these witnesses claimed to have reached the spot immediately on hearing the gun shots and on reaching the spot they were informed by the appellant that he had fired the gun shots. It is also contended that the prosecution has failed to compare the finger prints of the appellant with the finger prints on the weapon of offence i.e. Double Barrel Gun.

(3.) Mr. Verma next contended that in the cases of circumstantial evidence, the motive assumes importance, however in the present case, the prosecution has failed to establish any motive for the appellant to have fired gun shots and killed the deceased. An alternate, argument has also been raised by Mr. Verma that in case, the prosecution's case is taken to be true that due to a quarrel, appellant fired at the deceased, in that case having regard to the fact that only a single shot was fired, the appellant did not take any undue advantage of the helplessness of the deceased, the single gun shot in fact hit the base of the neck of the deceased however as per the MLC, the bullet hit the upper shoulder of the deceased. It is thus contended that the present case of the prosecution falls within the purview of Section 300 of Indian Penal Code moreover the incident took place in the heat of the moment on account of a sudden quarrel and the appellant did not have any intention to commit the murder of the deceased. Mr. Verma further contended that to invoke the Exception IV of Section 300 of Indian Penal Code, four requirements must be satisfied by the accused; he must show that (i) there was a sudden fight; (ii) there was no premeditation on the part of the accused; (iii) the act of the accused resulting in the death of the victim was done in the heat of passion; and (iv) the assailant should not have taken any undue advantage of the situation and should not have acted in a cruel manner. It is further contended that in the present case, all these requirements are fulfilled and therefore the appellant should have been given the benefit of exception IV of Section 300 of Indian Penal Code.