TC- 35

UILS Intra Department Judgment Writing

Competition, 2022

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 IN THE COURT OF SESSIONS JUDGE

RIVERDALE

Case No. 467 of 2022

Decided on:10.10.2022

State of Narnia…………………………………………………Prosecution

Versus

Maj. (Retd) Rajiv Sharma……………………………………...Accused

FIR No.001 Dated 01.01.2022

U/S 395 of DPC and 25,27 of Arms Act, 1959
Police Station: Division 3, Riverdale.

Present: PP for the state.

Maj. (Retd) Rajiv Sharma accused along with counsel.

JUDGMENT:-
Introduction

1) The ASI Vinod Kumar, Division 3 police station, Riverdale has sent the accused
namely Maj. (Retd) Rajiv Sharma to face trial under Sections 396/302 of DPC and
Sections 25,27 of Arms Act, 1959.

2) The brief facts of the prosecution case are that the criminal law was set into motion
against the accused on the statement of the complainant- which is to the effect that on
the evening of December 31, 2021, a high stakes poker game was held on the
Octavious floor of the Blue Maddison Hotel & Casino owned by Ms. Nita Rao on the
ship "Aurora" in the Arabian River. After 11 PM, it was discovered that four guys in
suits who were carrying eight waterproof bags had broken into the Octavious vault.
The alarm went off as the four guys moved towards the deck to escape, and they

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 dropped eight bags into a motorboat driven by Pappu Chhote. Two of the men escaped
by rappelling into the motorboat While the other two awaited their turn to rappel
down, the head of Operations, Maj. (Retd) Rajiv Sharma shot and killed one of them
and the other was injured by a shot fired on his knee by Mr. Lalit Arora who is Chief
Security Officer at Blue Maddison.

3) An FIR was registered on the complaint of the complainant, Ms. Nita Rao for the
offences under section 395 of DPC and section 25 and 27 of Arms Act, 1959. But after
completion of the investigation, challan for section 396 read with section 302 of DPC,
1860 was presented before the court. The witnesses’ statements were recorded and the
accused was arrested. Further the chargesheet was framed against the accused.

4) On presentation of challan against the accused persons, copies of the challan was
supplied free of cost to the accused persons as envisaged under section 207 CrPC.

Prosecution Arguments –
5) Prima Facie, case under Section 396 read with Section 302 of the Dianan Penal
Code, 1860 are made out against the accused Maj. (Retd.) Rajiv Sharma and
accordingly charge was framed against him. The charges were read over to the
accused in the language he understands and he has also understood the charges to
which he pleads not guilty and claim trial.
6) In order to prove its case, prosecution has examined PW 1, Ms. Nita Rao who
proved on record that the final call on the guest list was made by the accused
(Annexure 7) and this has been corroborated by the statement of PW 2, Naman
Kaushal, an interested witness who also made it evident through his statement that
the accused was an active participant in the planning of entire Dacoity, and also
aided in the entrance of the Octavious floor. He has also stated that 4 men were on
board and one was waiting on a motorboat to assist the escape as provided under
Annexure-8.
7) The accused himself was responsible for the security of the entire ship as confirmed
by the PW 1 and PW 2, so he knew when the guards will change their position. He
took advantage of the same for undetected entry and that is when the 4 men entered
the ship. With respect to the time of the commission of the crime, there has been a
discrepancy but it has been submitted by the prosecution that in every statement the
time is between 11:00 to 12:00 p.m. when the accused persons were in the Aurora so
there cannot exist any alibi as well so the discrepancies of time in witnesses’

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 statements are immaterial as the manner in which the offence has been committed
was told by witnesses was the same and without any discrepancies.
8) Further, PW 2 also confirmed that the accused had a small conversation with the
deceased and then shot him on his head with his special edition Smith and Wesson
custom engraved model 60, .38 revolver (Exhibit 1) around 11:30-12:00 p.m. Even
PW 3, Dr. Dehant Trehan Forensic Pathologist who conducted the post mortem of
the deceased and confirmed that there was a single gunshot wound which had a 15
mm entry with internal beveling and approx. 33 mm exit with external beveling
(Annexure 4). On the examination of PW 5, Dr. Saabah Hooda who made the
forensic report confirmed that the proximity of firearm with the deceased cannot be
more than 15 ft., standing at the same level the prosecution has contended that the
weapon could have also been placed nearer to the deceased and in this close range
there cannot be any chance of accident on the part of the accused and the cartridge of
17 x .38 Live Hornady can be used both in the Smith and Wesson revolver as well as
Glock 38. The grooves of three bullets match the .38 Handgun and grooves of one
bullet matches the Smith and Wesson custom engraved 60, .38 revolver (Annexure-
6).
9) The prosecution submits that the intentions to kill is not always required to prove the
guilt of the accused, mere knowledge is also enough as in this case the accused is a
retired Army Officer who has considerable amount of experience in killing people
and handling weapons and he had a fear of getting caught so he shot dead the
accused on the vital part of the body, as also stated in the statement of PW 2, thus it
is logical to say that he had the knowledge and also intended to kill the deceased.
10) The prosecution contended that they have proved beyond reasonable doubt that the
accused was active participant and aided the commission of that Dacoity he also
murdered the deceased in order to save himself from getting caught.

Defence Arguments-
11) The statement of the accused was recorded u/s 164 Criminal Procedure Code,1973
under Annexure 8. The learned counsel for the defendant has examined DW2, Ms.
Meenakshi Arora, who proved on record the occurrence of offence on the eve of 31 st
December 2021. Thereafter the defence counsel examined DW3, Mr. K.Kappe who
was taken as hostage by the other accused Naman Kaushal. Thereafter the defence

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 counsel examined DW4, Mr. Lalit Arora who proved on record his statement under
Annexure 7. Thereafter the defence counsel examined DW5, Dr. D.D. Dang who
proved on record the medico legal report of the co accused Naman Kaushal under
Annexure-5
12) The learned counsel for defence has completely denied to the prosecution version of
the case and stated that the accused is innocent and has been falsely implicated in
the present case. The counsel for defence has submitted that the accused was not the
only person who had the remote control over the Octavious vault, PW1 and DW4
also had such control. Moreover, the accused did not have the authority to prepare
the guest list, he was just allowed to scrutinize the background of the guests. He also
submitted that there has been a discrepancy in the time of occurrence of the offence
as PW2 has stated that the offence was committed post 11:30 PM, DW4 has stated
the time of occurrence of offence as 10:55 PM, DW 2 stated the time of escape of
accused persons to be 12’o clock and DW 3 has stated that he heard the firing of shot
at around 11’o clock. Therefore, there is a reasonable doubt regarding the time of
occurrence of the offence. The defence counsel submitted that the circumstantial
evidence is unreliable as the prosecution was unable to establish the chain of events
and the whole case solely rests upon uncorroborated circumstantial evidence.
13) The counsel for defence has also submitted that the accused did not shoot the
deceased intentionally as required under section 302 of DPC. The accused was
acting in private defence which was a necessity at that point of time and it happened
accidently. The confession made by PW2 has been contended to be unreliable
because it lacks corroboration and also, he is an interested witness in the present
case.
14) The defence counsel has also contended that the present case lacks proper
investigation. Relying on Ramakant Rai Vs. Madan Rai1 the learned counsel for the
accused submitted that the prosecution has drastically failed to prove the guilt of the
accused beyond reasonable doubt and in proving the charge against the present
accused and thus, he may very kindly be acquitted from the charges levelled against
him.

Ratio Decidendi -
15) I have heard learned PP and learned defence counsel and perused the record on file.
1
Cr. LJ 2004 Sc 36

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 Following points crop up in the present case which require determination by the
Court: -
(i) Whether Major Rajiv Sharma is guilty of the offence of Dacoity?

(ii) Whether Major Rajiv Sharma is guilty of Murder?

Point no i)-
16) The prosecution has relied upon the statements of PW2 who has pleaded guilty
under a confession U/S 164 in front of the Sessions Judge stating that even if the
accused is the friend of deceased, his statements cannot be disregarded
completely. Relying on section 118 of the Dianan Evidence Act, 1872 and the
case of Madhusundan Das v Narayanbai2 and Asha v State of Rajasthan,3 the
prosecution has made efforts to establish the competency of the statement given
by PW2. As per the contentions made by the prosecution the statements of PW1
and DW4 have also corroborated the confession of PW2 stating that firstly, the
accused was the one who had the authority to finalize the list of the guests.
Secondly, he was responsible for rotation of guards due to which dacoits did not
face any difficulty in reaching the Octavious special vault. On the other hand,
the learned counsel for defence while relying upon the statements of DW4 and
PW1 stated that the accused was not the only one who had the control over the
Octavious special vault. DW4 and PW1 also had the remote control of that
vault. They have contended that the accused did not have the authority to
prepare the list but his task was only to check the background of the guests. Our
attention has been drawn towards the fact that the mere accessibility of remote
control to DW4 and PW1 is not sufficient to prove the innocence of the accused.
It is agreed that the accused did not have the authority to prepare the list but his
actual duty was to make the final list and he had the discretion to allow or
disallow any person from entering the Blue Maddison Hotel & casino that day
as stated by PW1. It is also to note here that the accused was having the charge
of security on the Octavious floor and the DW4 was supposed to look after the
security at other places as mentioned by DW4 and confirmed by PW1. So, all
the men that were positioned in the Octavious that day were in control of the

2
AIR 1983 SC 114
3
AIR 1997 SC 2828

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 accused. It has been stated by DW4 in his statement that the accused was taking
rounds at the Octavious special vault after every fifteen minutes and information
was received that the guards in Octavious special vault had informed that the
other co- accused were some guests who forgot their way.
It has been held by the Apex Court in Gurpreet Singh vs. State of Haryana 4
that,
It is now well settled that while circumstantial evidence alone and by itself is
enough to form basis of conviction. Provided, however there is no snap in the
chain of events: the chain of events must thus be complete in such a way so as to
point to the guilt of the accused person and to none others.
Thus, the prosecution has succeeded in establishing a complete chain of events
to establish that the accused is involved in committing or attempting Dacoity at
Blue Maddison Casino.
17) The word ‘conjointly’ means to united and concerted action of the persons
participating in the transaction. 5 The prosecution in the present case has
submitted that the accused has assisted the other accuse in the case to enter the
Octavious floor of the Blue Maddison Hotel and provided them with all relevant
information about the security layout of the Blue Maddison Hotel which is also
corroborated by the confession made by PW2 under Annexure-8 who has stated
in his statement,
“This was going to be a five-man job, with Maj. Rajiv Sharma providing
support from the inside. Me, Babaji, Kesu Firangi and Bhiku Matre’s were to be
on the guest list, and we were told that we would have no problem entering the
Blue Maddison.”
Therefore, the threshold of acting conjointly is also fulfilled by the accused.
18) Section 391 of DPC provides the definition of the offence of dacoity and
signifies that the number of people who are committing dacoity must be five or
more. Not only those who perform the actus reus or the main offence of
robbing, but even those people are also guilty of this offence who are present
and aiding such commission of offence. The prosecution claims that the
testimony of DW4, PW2, and DW2 satisfies the requirement of the crime of
dacoity for having at least five or more persons. Our attention has been drawn to

4
AIR 2002 SC 3217
5
Dambaru Dhar Injal, (1951) 2 Ass. 365.

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 the point that PW2 in his confession, has stated that
“This was going to be a five--man job, with Maj. Rajiv Sharma providing
support from the inside. Me, Babaji, Kesu Firangi and Bhiku Matre’s were to be
on the guest list. Pappu Chote was supposed to take us to the Aurora in a motor
boat, and wait for us while we robbed the Casino.”
The statement of DW4 and DW2 is in corroboration with the statement of PW2.
DW4 stated in his statement under Annexure 7 that,
“A few minutes later there was again chatter on the intercom that 4
men with large black bags were seen running to the deck. I immediately climbed
one floor and ran towards the deck where I saw four men in suits throwing bags
down from the ship.”
DW2 has also stated in her statement under Annexure 7 that,
“But just as I was about to leave, I saw four men run onto the deck. They were
carrying large bags.”
The four men in suit have been directly involved in committing dacoity. Along
with them another co-accused named Pappu Chhote has also contributed in
commitment of the offence as he has aided the four men in escaping from the
Blue Maddison Hotel. Therefore, it is evident from the above discussion that
there were five people other than the accused who were involved in commitment
of the offence of dacoity on 31 st December 2021 at Blue Maddison Hotel and
therefore the offence so committed is not robbery but it is dacoity as defined by
section 391 of DPC.
19) The prosecution has further contended that there can be a discrepancy related to
time in the statements of the witnesses due to error in observation, error of
memory etc. but it is immaterial. On the contrary the counsel for defence has
submitted that there is a serious discrepancy of half an hour between the
statements of PW2, DW4, DW2 and DW3. Therefore, the prosecution has been
unable to make out a proper chain of events to prove the guilt of the accused.
It was held by the Hon’ble court in State of Rajasthan Vs. Kalki 6 and also
followed in Subodh Nath vs. State of Tripura 7 that in the depositions of
witnesses there are always normal discrepancies however honest and truthful
they may be. Those discrepancies are due to normal errors of observation,

6
1981 Cr.LJ 1012
7
(2013) 4 SCC 122

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 normal errors of memory due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence, and the like. Material discrepancies
are those which are not normal, and not expected of a normal person.

Therefore, such a small discrepancy related to time of occurrence of the offence

can not be a sole ground for disproving the guilt of the accused. Moreover, the
time of commitment of offence stated by all the witnesses is in between 11pm to
12pm. So, a minor difference may be there due to difference in observations by
different people.
Point no. ii)
20) In order to bring the guilt of the accused u/s 302 of DPC, the prosecution has
placed predominance reliance on the testimonies of PW 2, Naman Kaushal an
interested witness in the present case (Annexure 8) who stated that the accused
conversed with the deceased and then shot him with his special edition Smith and
Wesson engraved model 60, .38 revolver in the head of the deceased (exhibit 1),
corroborated with the statement of PW 3 Dr. Dehant Trehan, the Forensic
Pathologist who conducted the post mortem (Annexure 4) and PW 5, Dr. Saabah
Hooda who made the Forensic Report (Annexure 6) and stated that the cause of
death was the bullet shot and the grooves of one bullet was found on special
edition of Smith and Wesson custom engraved model 60, .38 revolver in which
the .38 live Hornady cartridges can also be used.
21) The prosecution contended that if there is motive to do an act then the adequacy
of that motive is not always necessary to prove the guilt of the accused, as
heinous crimes are committed even with a slight motive. Thereafter, the
prosecution contended that merely having knowledge that natural and probable
consequence of an act would lead to the death of the other person is a suffice
ingredient to prove the conviction u/s 302 DPC.
22) Learned Counsel for the accused has raised contentions that the prosecution has
miserably failed to prove the guilt of the accused in the alleged offence. Court’s
attention was drawn to the statement of DW 1 the accused who confirmed that
PW 1 and DW4 were also responsible for the control and the security of the
Octavious vaults; DW 2 Ms. Meenakshi Arora who heard the gunshots; DW 3 K.
Kappe who was made hostage by one of the co accused and was hit by him

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 multiple times on the face; DW 4, Lalit Arora who was saw the four men running
towards the deck with eight large bags but no witness either saw the accused and
the deceased talking to each other or the accused shooting the deceased except for
PW 2 who himself is an interested witness. The defence contends that the court
must tread lightly when taking into account the statement of a co accused as he
must have some direct interest in seeing the accused get convicted.
23) Furthermore, the defence counsel has raised the contention that the investigation
has not been done properly as no finger prints were found on the guns also the
position of the body wherein the head of the deceased is placed on the side of the
accused which is also improper and therefore it has been contended that the
evidences have been disturbed with.
24) Our attention has been drawn towards the point that only PW 2, who himself is an
interested witness, saw the accused shooting the deceased and the other
prosecution witnesses only heard the gunshot, so although the testimony of PW 2
cannot be disregarded completely but cannot also be solely relied upon. Relying
upon the judgment of Haricharan Kurmi vs. State of Bihar8, where it was held
that,
“Confession of a co-accused person cannot be treated as substantive evidence
and can be pressed into service only when the court is inclined to accept other
evidence and feels the necessity of seeking for an assurance in support of its
conclusion deducible from the said evidence”
In this case also the other evidences and witnesses that were put forward by the
prosecution against the accused were not satisfactory and beyond reasonable
doubt in order to prove that the accused was guilty of the alleged offence so the
court cannot solely rely upon the co accused’s statement.
25) Further the position of the body is also a valid point to be considered and
according to Annexure 4, the entry of the gunshot wound is on the frontalis, that
is the front part of the head and according to Annexure 1 the head of the deceased
is on the side where the accused is standing so there is a reasonable doubt that
whether the accused shot the deceased or not.
26) The prosecution has failed to prove that the gunshot was from the accused’s gun
as there has been no finger print found on any of the guns. The prosecution have

8
AIR 1964 SC 1184

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 themselves contradicted their point that except PW 2 no one else saw the accused
shooting as they have also mentioned that DW 3 and DW 5 saw him shooting,
where it is evident from their statements that they only heard the gunshot. Relying
on the judgment of State of Bihar vs. Hanuman Koeri9 where it was held that
merely recovering the gun without any convincing evidence that it was used by
accused is not in any way a help to the prosecution.
27) Accordingly, in view of the entire discussion made above, we are of the considered
view that the prosecution has proved the point of commitment of dacoity against the
accused Maj. (Retd.) Rajiv Sharma beyond reasonable doubt. But there has been a
failure on part of the prosecution to prove it beyond reasonable doubt that the
accused shot and murdered the deceased. So, the court is of the view that the accused
will be given benefit of doubt bearing in mind that no other witness except the
interested witness saw the accused commit actus reus. It has been held by the Apex
court in Rafiq Ahmad vs. State of Uttar Pradesh,10
“We have already noticed that a person charged with a heinous or grave offence
can be punished for a less grave offence of cognate nature whose essentials are
satisfied with the evidence on record. Alike or similar offences can be termed as co-
ordinate offences.”
In the present case the offence of dacoity defined under section 391 and section 396
are cognate offences and therefore conviction can take place for minor offence under
section 391 without alteration of charge.
Therefore, we hold the accused Maj. (Retd.) Rajiv Sharma guilty for having
committed offence of dacoity alone punishable U/s, 395 of DPC. Let the convict be
taken into custody and he be heard on the quantum of sentence.

Pronounced Sessions Judge,

10.10.2022 Riverdale

9
1971 Cri LJ 182 (Pat)
10
2011 (8) SCC 300

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 UILS Intra Department Judgment Writing
Competition, 2022

QUESTION OF SENTENCE

Present: - PP for the state.

Maj. (Retd) Rajiv Sharma accused along with counsel

1) After hearing the convict and his counsel and gone through the facts and
circumstances of the case, we hereby convict the accused Maj. (Retd) Rajiv Sharma as
follows: -

Name of the Under Section Rigorous Fine Further R.I. in

Accused Imprisonment default to pay
for the Period fine

Maj. (Retd.) 395 Dianan Penal 8 Years Rs. 1000/- 10 Days

Rajiv Code, 1860
Sharma

2) The period of Judicial detention already undergone by the convict in this case be set off
against the above sentence of imprisonment. All the sentences shall run concurrently.
Case property if any be disposed of as per rules after the expiry period of appeal or
revision. Fine paid. File be consigned to the Judicial Record Room after due
compliance.

Pronounced. Sessions Judge,

10.10.2022 Riverdale

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UILS Intra Department Judgment Writing
Competition, 2022

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