SANJAY KUMAR GUPTA Vs. STATE

JUDGEMENT

(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 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 CRL. A. No. 417 of 2009 Page 3 of 10 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.