Delhi District Court
S C No. 66/14 State vs Ramdhan Yadav & Anr. on 9 September, 2014
S C No. 66/14 State Vs Ramdhan Yadav & Anr.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-04
DISTRICT COURTS DWARKA ; NEW DELHI
S. C. No. 66/14
FIR No. 253/11
Police Station Chhawla
Under Section 307/326/34 IPC & 27/30 Arms Act
I.D. No. 02405R0212072013
STATE
Versus
1. Ramdhan Yadav
S/o Late Sh. Puran Singh
R/o VPO Paprawat,
Najafgarh, New Delhi.
2. Mohit Yadav
Sh. Mawsi Ram
R/o Village Paprawat, Najafgarh,
New Delhi. ......Accused
Date of institution 05/07/14
Judgment reserved on 01/09/14
Judgment Pronounced on 09/09/14
Decision Acquitted
Judgment Page 1 of 10
S C No. 66/14 State Vs Ramdhan Yadav & Anr.
JUDGMENT
1. The FIR in question arose on the complaint filed under section 200 Cr.P.C.
by the complainant Naresh @ Rinku.
2. Complainant alleged that he was having friendly relations with the accused Mohit for last many years and there were money transactions between them. On 12.11.2011, the complainant asked for his money to which the accused Mohit told the complainant to come in the evening. At about 9.00 pm, when the complainant went to meet the accused Mohit then the complainant along with his two friends namely Nazakat and Bhajan along with accused Mohit consumed liquor and thereafter the accused Mohit asked the complainant to accompany him to his maternal uncle's (accused no.1 Ramdhan Yadav) house. The complainant accompanied the accused Mohit to his uncle's plot where the accused no.1 came out armed with gun upon this accused Mohit shouted "Ki mama isko goli maar do". Then accused no.1 fired a gunshot towards the complainant. The complainant in order to save himself hide by the side of a car, then again the accused no.1 fired a gunshot which resulted into a bullet injury on his head. The complainant some how along with his friend escaped from the spot and due to the fear of his family the complainant put a bandage on his head and Judgment Page 2 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
slept, however, on the next date the complainant went to Narayani Hospital, Najafgarh where the complainant was found to have suffered bullet injury. The complainant was operated, bullet was removed from his head and he was discharged on 08.11.2011.
3. Both the accused were charge-sheeted to face the trial for the offence punishable U/s 307/326/34 IPC and also U/s 27 & 30 Arms Act.
4. The charge for the offences punishable U/s 307/34 IPC was framed against both the accused persons and the charge for the offence punishable U/s 27 Arms Act was framed against the accused Ramdhan Yadav. Both the accused persons pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case has examined three witnesses.
Unfortunately the complainant Naresh @ Rinku got expired (not due to alleged injury of the present case but otherwise) and his testimony could not be recorded.
6. PW-1 Nazakat Ali deposed that the complainant Naresh was his good friend and there was a dispute between Naresh and accused Mohit. On 02.11.2011, he along with Naresh and Bhajan had a party and after the party got over they went from the said place. The witness deposed that he does not no anything else about this case.
Judgment Page 3 of 10
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7. PW-2 Bhajan, deposed that Naresh was his good friend and there was a dispute between Naresh and accused Mohit. On 02.11.2011, on calling of Naresh for a party he went Naresh's Village on his Santro car bearing no. HR-26-N-4961, black colour and had a drinking session in his car along with Naresh and Nazakat. After the drinking session got over, he along with Nazakat left the spot and went to his house and since he was heavily drunk he left the car in the custody of Naresh. PW-2 further deposed that on the next date he found that his car was seized by the police and he does not know anything else in this case.
8. PW-3 SI Hari Singh, is the IO of the case. He deposed that on 03.11.2011 at about 1.30 am he received a call regarding firing of gunshot at Village Paprawat and he along with Ct. Jai Singh went to the spot where accused Ramdhan was present. The accused Ramdhan handed over his gun to him with 12 live cartridges in a belt and 2 empty fired cartridges which were seized vide seizure memo Ex. PW-3/D & E. IO recorded the statement of accused Ramdhan and on the basis of this statement a case FIR no.228/11, U/s 452/336/34 IPC PS Chhawla, was got registered against three persons and one of them was Naresh (complainant) and others were unkown. PW-3 further deposed that at about 12.16 pm, he got an information regarding Naresh being admitted to Narayani Hospital, Najafgarh, with a gunshot injury. PW-3 collected the MLC of Naresh Ex. PW-3/A and seized one Judgment Page 4 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
pallet Ex. PW-3/B from the hospital. In case FIR no.228/11, PW-3 arrested other co-accused persons namely Bhajan and Nazakat Ali and Santro car was taken into possession by him vide seizure memo Ex. PW-3/C. He got examined the Santro Car from FSL and a memo in this regard was prepared vide Ex. PW-3/H. IO got prepared of sketch of double barrel gun Ex. PW-3/F and cartridges vide Ex. PW-3/G. The accused in case FIR no. 228/11 filed a complaint case U/s 200 Cr.PC against the accused persons which resulted into the FIR in question. After registration of present FIR the seized articles were sent to FSL and the report of the same is Ex. PW-3/I & J. Both the accused persons were granted anticipatory bail in the present matter by the Hon'ble High Court of Delhi. During investigations of the case, PW-3 recorded the statements of witnesses and arrested the accused persons on 10.12.2012 vide memos Ex. PW-3/K & L and collected the CDR of the mobile number of the Naresh which is Ex. PW-3/O.
9. Since, no incriminating evidence came against the accused Mohit, in the testimony of eye witnesses, recording of his statement under section 313 CrPC was dispensed with.
10. The accused Ramdhan in his statement recorded under section 313 CrPC stated that the present FIR was registered as an after thought to the case registered against the complainant Naresh wherein some persons entered in the house of the accused and were trying to steal his Scorpio car. The Judgment Page 5 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
accused fired two rounds of bullet on them and got registered the case no. FIR 228/11, PS Chhawla. It is stated that the two rounds were fired by him in order to save his property.
11. I have gone through the evidence which has come on record & the submissions made by Counsels for parties
12. The prosecution in order to succeed in the case has to prove that in furtherance of his common intention with accused Mohit, to cause murder of complainant Naresh, accused Ramdhan fired a gun shot on him. However, as stated above the complainant Naresh got unfortunately expired and other two eye witnesses of the alleged incident are hostile to the case of the prosecution and did not support the allegation that accused Ramdhan fired a gun shot on the complainant.
13. It has been contended on behalf of the prosecution that the prosecution has proved that the complainant Naresh sustained a bullet injury by proving the MLC of Naresh as Ex PW3/A and a pallet which was removed from the head of the complainant was also seized by the IO as per seizure memo Ex PW3/B. It is argued that the double barrel gun from which bullet was fired was seized from the possession of accused Ramdhan and the accused Ramdhan in his statement recorded under section 313 CrPC admits to have fired the gun shot. Thus, the injury on the person of complainant Naresh Judgment Page 6 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
stands proved and it is also proved that the such injury was caused from the bullet fired from the double barrel gun by the accused Ramdhan, therefore, the accused Ramdhan is liable to be convicted for the offence punishable under section 307 IPC as well as under section 27 Arms Act.
14. Both PW1 & 2 who as per the prosecution version are the eye witnesses to the alleged incident have not supported the prosecution version. Although, the accused Ramdhan has admitted that he did fire a bullet but there is no evidence on record to establish that bullet fired by the accused actually hit the complainant Naresh. As per the prosecution version the complainant did not go to any hospital after receiving the alleged bullet injury instead he went to his house and slept. The complainant on the next day went to Narayani Hospital where the pellet embedded in his head was removed. It is not explained that if at all the complainant had suffered a bullet injury then why he did not report the matter to police or why did he not go the Hospital with the gun shot injury immediately after receiving the same. Thus, in absence of any positive evidence, it cannot be presumed that the pellet which was removed from the head of the complainant was actually sustained by him of the gun shot fired by the accused Ramdhan.
15. Moreover, FSL report, Ex PW3/I, in respect of the pellet recovered from the head of the complainant opines that the said pellet shows that it could be no. 1 shot of a standard bore ammunition and does not conclusively proves that Judgment Page 7 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
the same was fired from the gun recovered from the accused Ramdhan. Thus, for the want of evidence, it stands not proved that the accused Ramdhan Yadav in furtherance of common intention with the accused Mohit fired a bullet on complainant to cause his murder.Hence, the accused persons are entitled to be acquitted for the offence punishable U/s 307 IPC.
16. The accused Ramdhan is also facing the trial for using his 12 Bore Double Barrel Gun without any permission or authority and in contravention of Section 5 of Arms Act. The prosecution has proved that the accused fired with his double barrel gun and recovered 12 live cartridges and two empty cartridges from him as per seizure memos PW3/D & E. The accused in his statement recorded U/s 313 Cr.P.C. does not dispute the firing of bullets from his gun and has stated that he fired two rounds towards some persons who had entered his house with intention to steal his Scorpio Car and after this incident he lodged a complaint which resulted into a FIR no. 228/2011 PS Chhawla.
17. The FIR 228/2011 PS Chhawla registered on the complaint of the accused has been proved on record as Ex. PW3/DA and in this FIR the accused has stated that in self defence he fired two rounds on the boys who tried to steal a car from his house. Now, the only question which needs to be considered, is the alleged exercise of right of private defence by the accused. Judgment Page 8 of 10
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18. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence.
19. In present case, the accused has duly proved the FIR Ex. PW3/DA which was registered on his complaint wherein the accused categorically mentioned that some persons tried to steal a Scorpio car from his house and on his complaint the said FIR was registered U/s 452/336/34 IPC. PW3 who Judgment Page 9 of 10 S C No. 66/14 State Vs Ramdhan Yadav & Anr.
is IO of the case deposed in his cross examination that during the investigation of the case, it was found that Naresh (Complainant in this case) intruded the house of accused Ramdhan, therefore, in these facts, the accused had a right to save his property and firing of two rounds of bullet by him cannot be termed as an offence, specially when the said bullets did not cause harm to any person. Accordingly, I find that the accused Ramdhan had used his gun in his private defence and therefore, it cannot be termed as the usage of his licensed gun in contravention of Section 5 of Arms Act. Thus, the accused Ramdhan is entitled to be acquitted for the offence punishable U/s 27 of the Arms Act.
20. In the light of the aforesaid discussions, the accused persons stands acquitted for the offence punishable under section 307/34 IPC and accused Ramdhan Yadav is acquitted for the offence under section 27 Arms Act as well. Both are directed to furnish a personal bond in sum of Rs15,000/- with surety in the like amount under provisions of Section 437-A Cr.P.C. File be consigned to record room.
Announced in open Court on 9th Day of September, 2014.
Gautam Manan ASJ04, SouthWest, Dwarka, New Delhi.
Judgment Page 10 of 10
S C No. 66/14 State Vs Ramdhan Yadav & Anr.
09.09.2014
Present: Sh. Alok Saxena, Ld. APP for the State.
Both the accused on bail with counsel Sh. Jogender Singh. Vide separate judgment, the accused persons stands acquitted for the offence punishable under section 307/34 IPC and accused Ramdhan Yadav is acquitted for the offence under section 27 Arms Act as well. Both are directed to furnish a personal bond in sum of Rs15,000/- with surety in the like amount under provisions of Section 437-A Cr.P.C.
Bail bond furnished and accepted.
File be consigned to record room.
Gautam Manan ASJ04, SouthWest, Dwarka, New Delhi 09.09.2014 Judgment Page 11 of 10