Delhi District Court
State vs Manish Jain Etc on 22 July, 2024
IN THE COURT OF SH. PANKAJ ARORA:
ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA: DELHI
SESSIONS CASE NO. 44685/2015
CNR No. DLNE01-000259-2012
FIR No. 228/2011
P.S. Seelampur
U/s : 323/341/336/307 of IPC
U/s 25/27 of Arms Act
STATE
Versus
1. Manish Jain,
S/o Sh. Mukesh Kr.Jain
R/o A-63, Gali No. 7, Near Zero Pusta, Kuthwara,
New Usmanpur, Delhi.
2. Ashu Jain
s/o Sh. Babu Ram
r/o 323, Block No. 321, Kanshi Ram Niwas Baraut,
District Bhagpat,
U.P.
3. Mohsin
s/o Sh. Liyakat Ali
r/oH.No. T-666,
Gali No. 10, Gautam Puri, Delhi.
Shri Ram Colony, Delhi
Date of Institution : 16-02-2012
Date of Argument : 10-07-2024
Date of Judgment : 22-07-2024
JUDGMENT
1. Brief facts of this case are that on 26-06-2011 at about 11:55 pm, an information was received at PS Seelampur through Wireless Operator that brother of Caller had been shot fired by FIR No. 228/2011 State Vs. Manish Jain Etc. Page 1 of 32 some boys near water tank, Gautampuri, Seelampur, which was reduced into writing vide DD no. 24A and it was marked to SI Mukesh Kumar (hereinafter referred as Investigating Officer/ IO). Thereafter, IO along with Ct. Ishwar Singh reached at the spot where no eyewitness was found. Neither any blood stains nor any fired cartridge case was found. On inquiry, they were informed that victim had already been taken to GTB hospital. Thereafter, IO along with Ct. Ishwar Singh went to GTB hospital and collected MLC of victim Javed from the concerned doctor, who had endorsed, 'patient came with alleged history of gunshot at around 11:30 pm on 26-06-2011'. Thereafter, IO proceeded to record statement of victim Javed, who stated that he was running mobile repairing shop. On 26-06-2011 at about 11 pm, he received phone call of his friend Vishal, who reported to him that he had quarrel with one Manish and Ashu at eating point (Dhaba) and both Manish and Ashu were calling him at near Gautampuri water tank and he was scared. He requested him (Javed) to join him. He left from his home on his motorcycle and when he reached near Jain Dairy, Shastri Park, he found Vishal and his neighbour Lakshay Raghav, aged 14 years were standing there. He got Vishal and Lakshay seated on his motorcycle. In the meanwhile, his friend Aarif r/o Usmanpur reached there and asked him to proceed and stated that he would follow them. At about 11:30 pm when they reached water tank, Gautampuri, he noticed that accused Manish, Ashu and one more associate were standing there on road at a haunted place. All three accused persons had stopped them and on seeing Vishal, accused Manish and Ashu started abusing him and uttered, " tu Shastri Park mein bahut hero banta hai, tujhe aaj sabak sikhate hai'. Accused FIR No. 228/2011 State Vs. Manish Jain Etc. Page 2 of 32 Manish and Ashu started beating Vishal. In the meanwhile, Aarif also reached there on his motorcycle. He along with Aarif tried to save Vishal from the clutches of accused persons. Manish took out a pistol and fired in the air. Vishal and Aarif got scared and moved backside. Manish and Ashu caught hold of him and exhorted Mohsin by saying, 'Mohsin yeh Vishal ka bada himayati banta hai. Ise sabak sikhate hai.'. Accused Manish and Aashu started beating him with leg and fist blows. Their associate Mohsin said 'dur hato, iska khel khatam kar deta huin'. Mohsin opened fire upon him which hit him on his neck and he fell down. On seeing this, all three accused persons fled from the spot with the pistol, whereas Lakshay Raghav, Aarif, and Vishal remained standing there under fear. He got called at 100 number through Akshay Raghav from his mobile phone. Aarif and Lakshay brought him to Zero Pusta on motorcycle from where PCR van shifted him to GTB hospital. He claimed that he could get arrested accused persons as accused Manish and Aashu were known to him very well and they both reside at Kaithwada Usmanpur and used to visit Shastri Park. He also claimed that he can also identify accused Mohsin, if produced before him. On the statement of complainant, the present FIR was registered for the offences punishable u/s 307/34 of IPC and u/s 27 of Arms Act. During investigation, the doctor concerned had handed over bloodstained shirt of victim Javed which was seized vide seizure memo Ex. PW3/A. After discharge of victim Javed from the hospital, site plan was prepared at his instance. Statements of eyewitnesses namely Aarif and Vishal were recorded. On 30-06- 2011, accused Manish Jain and Ashu Jain had surrendered themselves in the concerned court where they were formally FIR No. 228/2011 State Vs. Manish Jain Etc. Page 3 of 32 arrested. Their PC remand for two days was obtained. Their disclosure statements were recorded. On 02-07-2011, during PC remand, accused Mohsin was arrested from his house at T-666, Gali no. 10, Gautampuri, Delhi at the instance of accused Manish Jain. Accused Mohsin got recovered one country made pistol and live cartridge from Yamuna Khadar, Bela Farm house, near Usmanpur G. T. Road, which was seized vide seizure memo Ex. PW4/D. The exhibits were sent to FSL. Sanction u/s 39 of Arms Act was obtained. After completion of necessary formalities, chargesheet in the present case was filed in the court of concerned 'Ilaqua' MM.
COMMITTAL
02. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions vide order dated 16-02-2012 of ld. MM-07/(NE)/KKD. Thereafter, the then Ld. District and Sessions Judge, KKD Courts allocated this case to the ld. Predecessor of this court. CHARGE
03. On the basis of facts emerging from the chargesheet and after hearing the arguments, Ld. Predecessor of this court framed charges against the accused persons vide order dated 01-06-2012 for the offence punishable u/s 341/323/336/307/34 of IPC; u/s 27 of Arms Act against accused Manish and u/s 25/27 of Arms Act against accused Mohsin, to which the accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 20 witnesses.
(4) PROSECUTION EVIDENCE (i) PW-1 HC Kiran Pal was the Duty Officer posted at PS
Seelampur at the relevant time. He has proved the copy of FIR FIR No. 228/2011 State Vs. Manish Jain Etc. Page 4 of 32 as Ex. PW1/A and endorsement made by him on the rukka as Ex. PW1/B. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(ii) PW-2 HC Narayan Singh was posted as MHCM at PS Seelampur at the relevant time. He has proved the entries made by him in register no. 19 regarding deposit of case property and dispatch of exhibits to FSL. He has also proved the necessary RC record with regard to dispatch of exhibits and acknowledgment obtained from FSL regarding deposit of exhibits. The record proved by him are exhibited as Ex. PW2/A to Ex. PW2/J. During cross-examination by Ld. Defence counsel, he affirmed that in his statement dated 08-08-2011 and 12-07-2011 that fact that SI Mukesh Kumar deposited the parcels in Malkahna is not mentioned.
(iii) PW-3 Ct. Mahesh Yadav was the Duty Constable at GTB hospital on 27-06-2011. He claimed that on that day, doctor had handed over to him sealed pulanda with sample seal in relation of one admitted patient namely Javed. He has proved the seizure memo of said pulanda as Ex. PW3/A. The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(iv) PW4 Mohd. Javed was the victim in the present case. He deposed that on 26-06-2011, he was present at his house and at about 11:00 PM, his friend Vishal made a phone call to him and told that quarrel has taken place between him on one side and Manish and Ashu on other side at a dhaba. After receiving the above-said information, he left his house on motorcycle and on FIR No. 228/2011 State Vs. Manish Jain Etc. Page 5 of 32 reaching near Jain Dairy, he picked up his friend Vishal and Lakkshay @ Raghav. Thereafter, they all proceeded for water tank at Gautam Puri. When they reached there, Manish and Ashu got stopped their motorcycle. Accused Mohsin was also with them. Thereafter, they started scuffling with Vishal and when he tried to intervene, in the meantime accused Manish fired a shot in the air. On this, Vishal and Lakshay @ Raghav took themselves back for some distance. On this Manish told to him " ye Vishal ka bahut himayati banta hai, iska khel khatam kar do ". On this, Manish and Ashu caught hold him from his both arms and Mohsin fired a shot on his neck (back side). After receiving gun shot injury, he fell down. Thereafter, all the accused persons ran away from there. Thereafter, Lakshay @ Raghav made a call at 100 number from his mobile phone. His friend Arif had also reached at the spot and he witnessed the aforesaid incident, as when he was picking Vishal and Lakshay @ Raghav from Jain Diary, in the meantime Arif had also reached there and he told him to accompany them and told them that he will reached there shortly. Thereafter, he was removed to zero pusta from the spot by Arif and Vishal. At zero pusta, PCR met them and he was taken to GTB Hospital. Local police reached in the hospital and his statement Ex. PW4/A was recorded. In the morning, he was discharged from the hospital and thereafter, he had shown the place of occurrence to the police and police prepared site plan Ex. PW4/B at his instance. Thereafter, he was relieved by the Police and he went to his house.
On 02-07-2011, when he was on morning walk and reached at Shastri Park Red Light at about 7.00 AM, IO SI Mukesh alongwith accused Mohsin met him and he identified FIR No. 228/2011 State Vs. Manish Jain Etc. Page 6 of 32 accused Mohsin as the assailant who inflicted injury on his person with firearm. Thereafter, accused Mohsin led them to Bela Farm in front of IT Park (Shastri Park) and from there he got recovered one country made pistol, which was kept beneath the stones under the kikar tree, after removing the stones. Police checked up the said country made pistol and it was found loaded with one live cartridge. Thereafter, the sketch of country made pistol and live cartridge was prepared by the IO vide Ex. PW4/C. Thereafter, country made pistol and live cartridge were sealed in a cloth parcel with the seal of MK and parcel was taken into possession vide seizure memo Ex. PW4/D. IO had also prepared the site plan of the place of recovery of country made pistol and live cartridge vide Ex. PW4/E. He correctly identified the accused persons in the court.
During cross-examination by ld. Defence counsel, he deposed that he did not remember the number of his house. He received the call of his friend Vishal from his mobile phone at his mobile number 9999554449. He had stated to the police in his statement that Manish and Ashu caught hold of him and Mohsin fired a shot on his neck. Vishal talked them when their vehicle was stopped by Manish and Ashu. Accused Ashu was giving beatings to Vishal when he was stationing/ standing the motorcycle on its stand. He had seen the third accused except Manish and Ashu, first time at the spot. Second time, he had seen the third accused on 02-07-2011. The accused persons left the spot after inflicting injury to him. He affirmed that only two fires were shot, one was fired in the air and the one shot hit him on his neck. His both hands were caught by the accused Manish and Aashu but he did not know as to which of his hand was FIR No. 228/2011 State Vs. Manish Jain Etc. Page 7 of 32 caught by accused Manish and Ashu. Accused Manish was carrying katta when he caught hold of him. Accused Mohsin fired a shot upon him. When he had seen accused Mohsin, he was at a distance of about 3 feet from him and he was carrying country made pistol in his right hand at that time. He fell down after 1-2 minutes of receiving bullet injury on his person. He knew accused Manish as he used to come to his uncle Shera's house at Shastri Park. There was no money transaction between him and accused Manish prior to the incident. No quarrel had taken place between him and accused persons Manish and Aashu or their relatives prior to the incident. Accused Mohsin removed the stone when he got recovered the katta. After recovering the katta, it was checked by the police and found containing one live cartridge. His shirt was taken into possession by the police.
(v) PW-5 Ct. Avneesh Kumar was the police official posted at PS Seelampur. He deposed on the same lines on which IO SI Mukesh Kumar (PW16) has deposed on the aspect of proceedings conducted with regard to pointing out of place of occurrence by accused Manish Jain and Ashu on 01-07-2011.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(vi) PW-6 Ct. Lal Babu was the police official posted at PS Seelampur at relevant time. On that day, Malkhana Mohrar handed over him one sealed parcel and he took the same to FSL Rohini vide RC no. 57/21/11 Ex. PW2/G and deposited the same there and handed over the acknowledgment receipt Ex. PW2/H to MHCM.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 8 of 32(vii) PW-7 Ct. Ishwar Singh was the police official who had accompanied the IO SI Mukesh Kumar (PW16) at the spot on 26- 06-2011. He deposed on the same lines on which IO SI Mukesh Kumar has deposed with regard to proceedings conducted at the spot on 26-06-2011.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(viii) PW-8 HC Harjeet Singh was the police official who was assigned the task of depositing the exhibits at FSL vide RC no. 73/21/11 Ex. PW2/D handing over the acknowledgment receipt Ex. PW2/E to MHCM. He deposed correctly about the role performed by him.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(ix) PW-9 Ct. Mahesh Kumar was the police official who had accompanied the IO SI Mukesh Kumar at KKD court on 30-06- 2011 where accused Manish Jain and Aashu Jain were arrested vide memos Ex. PW9/A to Ex. PW9/B1 and made disclosure statements Ex. PW9/C and Ex. PW9/D. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(x) PW-10 Dr. Devender Kumar identified the handwriting and signatures of Dr. Aayush Singhal on MLC No. B-3733/11, Ex. PW10/A which was prepared by Dr. Aayush Singhal as he had done work under his supervision and he has seen him while writing and signing.
He deposed that MLC No. B-3733/11 of Javed S/o Mohd. Harish, male 25 years, dated 27.06.2011 is in the handwriting of Dr. Aayush Singhal. As per MLC, the above said person Javed FIR No. 228/2011 State Vs. Manish Jain Etc. Page 9 of 32 was brought at the hospital at about 12:05AM on 26.06.20211 by police (T-44) with the alleged history of gunshot at around 11.30 PM on 26.06.2011.
Shirt of the said Javed was sealed and handed over to the Duty Constable in sealed condition along with sample seal. The said person was referred to surgery department for further management and treatment. On that day, i.e. 27.06.2011, he was the casualty medical officer and Dr. Aayush Singhal examined the said Javed under his supervision separately.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xi) PW-11 Ct. Naveen is the witness to the same facts which were already deposed by PW9 Ct. Mahesh Kumar.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xii) PW12 Sh. Vishal was another victim of the present case. He deposed that on 26.06.2011, he had gone to Bengali Dhaba situated at DDA Flat, Shastri Park, Delhi for taking meal. When he reached there, Manish and Ashu were already present and were taking meal. When he reached there, they both asked him to take meal with them but he refused for the same. On this they both got annoyed and started abusing him. They told him "tu apane Aap ko hero bata hai and aur apne himayati ko lekar Gautam Puri Tanki ke pass aa jana". Since the dispute was increasing, he left the dhabha and came out from the same. While he was going to his house, on the way, he made a call to his friend Mohd. Javed and told him all the facts on the above said incident. He told his friend Mohd. Javed that Amit and Ashu were threatening him and calling at Gautam Puri Tank. He FIR No. 228/2011 State Vs. Manish Jain Etc. Page 10 of 32 requested Mohd. Javed to come and intervene in the matter. On this, Mohd. Javed told him that he was coming. When Vishal reached at Jain dairy, there one Lakshaya Raghav, resident of Shastri Park, was standing. In the meantime, Mohd. Javed also reached there on his bike. He also informed Lakshaya Raghav about the above said incident. Thereafter, he, Lakshaya Raghav and Mohd. Javed proceeded towards Gautam Puri Paani (water) on the motorcycle of Mohd. Javed and on the way, one Arif, friend of Mohd. Javed met them. On this, Arif also agreed to accompany them and told them that he was coming on his bike. They reached near Gautam Puri water tanki at about 11:30 PM, accused persons Manish, Ashu and one another person whose name was revealed later on as Mohsin, were standing there in the dark. They stopped them and started abusing Vishal while saying "tu apane Aap ko bara hero banta aur apne himayati ko lekar aya hai" and they started giving beatings to him. In the meantime Arif, friend of Mohd. Javed also reached there on his motorcycle. Arif and Javed tried to save him from Manish, Ashu and their friend. On this accused Manish had taken out pistol and fired a shot in the air. When he fired a shot, they all got frightened and he and Arif went back for some distance, on this accused persons caught hold Mohd. Javed and they started giving beatings to him with kick and fist while saying that "ye bara himayati ban kar aaya hai". On this, accused Mosin asked Ashu and Manish to get back and while saying he fired a shot on the person of Mohd. Javed and the bullet hit in the neck of Mohd. Javed. After receiving bullet injury, Mohd. Javed fell down on the ground. On seeing this, he ran away from there due to fear. Later on, he came to know that Arif and Lakshya Raghav took Mohd. Javed to FIR No. 228/2011 State Vs. Manish Jain Etc. Page 11 of 32 hospital.
During cross-examination by Ld. Defence counsel, he deposed that he personally did not make any call at 100 number. Lakshay Raghav had also reached at Jain Dairy. He was not aware as to whether Javed knew the accused persons or not. He received injuries on his face, back and head and injuries were not visible. His medical was not got conducted by the IO as he did not tell the IO about the injuries. He did not see accused Mohsin prior to the incident. He did not remember as to how many shots were fired at the spot. It was a small gun (pistol type) by which accused Manish had fired. Manish had fired second shot after a little gap of the first fire. He did not remember whether or not prior to the subsequent fire, he had loaded the weapon again or it was pre-loaded. The assailants had not targeted him. He again said that the first bullet was fired in the air and subsequent one was fired which hit Javed in his neck. The accused had fired from front. A number of passersby had gathered there at the spot.
(xiii) PW-13 Ct. Sandeep is the police official who had accompanied the IO SI Mukesh Kumar (PW16) during investigation conducted on 01-07-2011 at PS till interrogation of accused Munish Jain and Ashu Jain. He remained with the IO till arrest of accused Mohsin on 02-07-2011. He deposed on the same lines on which SI Mukesh Kumar has deposed.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xiv) PW-14 Arif was eyewitness of the case. He had deposed that in the year 2011, he was doing work of mobile repairing. On 26.06.2011 when he was coming back from his work place at third pusta, he saw that his friends namely Javed and Vishal were FIR No. 228/2011 State Vs. Manish Jain Etc. Page 12 of 32 being beaten by 5-6 persons. He stopped there and asked as to what happened. In the meantime, he heard the noise of some crackers like substance. Soon he noticed that blood was oozing out from the body of Javed. Someone made a call at 100 number the police came there and took injured Javed to GTB hospital. He along with Vishal also went to the hospital on his bike. The persons who were fighting with Javed and Vishal were not present in the court (witness has answered this after looking at all the three accused persons present in court).
During cross-examination by Ld. Addl. PP for State, he denied that accused Manish Jain, Ashu and Mohsin, present in the court, were the same persons who assaulted Javed and Vishal in his presence or that accused Mohsin was the same person who fired a shot upon Javed in his presence.
The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
(xv) PW15 Retired SI Mahender Pal deposed that on 26.06.2011, he was posted in PCR, North East Zone and was posted as In-charge of PCR Van Tiger-44 as checking officer. On that day, at about 11:30 AM-12 midnight when he was present along with his staff at he said PCR van at Zero Pusta, Usmanpur, Delhi there two boys came, younger boy told him that some one had fired a shot upon his brother. The elder boy was having injuries on his neck. Thereafter, he took them to GTB hospital and the injured was got admitted by him there and thereafter, he came back on his duty. His statement was recorded by the IO later on.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 13 of 32(xvi) PW-16 SI Mukesh Kumar was the IO of the present case. He deposed that on 26.06.2011, he was posted at PS Seelampur as Sl. On that day at about 11.55 PM on receipt of DD No. 24A, he along with Ct. Ishwar Singh went to the spot i.e near Water Tank, Gautam Puri, Delhi. There no person/injured met them. On inquiry from PCR Control Room, he came to know that the injured had already been taken to GTB Hospital by the PCR officials. Thereafter, he along with Ct. Ishwar went to GTB hospital and in hospital, one person namely Javed was found admitted. He collected his MLC. The doctor mentioned on the MLC that the patient was fit for statement. Thereafter, he recorded the statement of Javed vide Ex. PW4/A. Thereafter, on the basis of his above said statement, he prepared rukka Ex. PW16/A and it was sent to the PS through Ct. Ishwar Singh at about 2.00 AM on 27.06.2011 for registration of the case. In the hospital, Duty Constable Mahesh handed over one sealed parcel sealed with the seal of MLC GTB Hospital containing bloodstained shirt of injured Javed along with sample seal and he took the same into possession vide seizure memo Ex. PW3/A. In the hospital, one eyewitness Lakshya Raghav met him. In the meantime, injured was discharged from the hospital. Thereafter, he along with injured Javed and witness Lakshya Raghav went to the spot. On reaching there, site plan Ex.PW4/B was prepared by him at the instance of the injured and in the meantime Ct. Ishwar reached at the spot and he handed over rukka in original and computerized copy of FIR Ex. PW1/A to him. He tried to find out the empty cartridge from the spot or any bullet mark on the walls etc. but no clue was found. Inquiry was made from local residents but no person came forward who had seen the incident.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 14 of 32Thereafter, he along with Ct. Ishwar, injured and witness Lakshya came back to the PS. Case property was deposited by him with MHC(M) and he recorded the statement of Ct. Ishwar and Lakshya Raghav. He had also recorded supplementary statement of injured Javed. He also recorded statement of duty Ct. Mahesh. On 28.06.2011, he had called witnesses Arif and Vishal in the PS as injured had provided their mobile numbers. They both were examined and their statements were recorded by him.
On 30.06.2011, accused Manish Jain and Ashu Jain had surrendered themselves before the court concerned and from there they were formally arrested and interrogated vide their arrest memos Ex. PW9/A (of accused Ashu Jain) and Ex. PW9/B (Manish Jain) and their personal search were also conducted vide memos already Ex. PW9/A-1(of accused Ashu Jain) and Ex.PW9/B-1(of accused Manish Jain). During course of interrogation, both the above said accused persons made their disclosure statements Ex. PW9/C (of accused Ashu Jain) and Ex. PW9/D (of accused Manish Jain). Thereafter, they both were remanded for two days P/C. After getting them medically examined, they were put in the lockup. He recorded the statements of Ct. Mahesh and Ct. Naveen who accompanied him to the court. During the police custody i.e 01.07.2011, both the accused persons were taken out from the lock up and they were interrogated and during that course supplementary disclosure statement of accused Manish Jain Ex. PW5/A was recorded by him. Thereafter, both the accused persons led the police party to the spot i.e near Water Tank, Gautam Puri, Delhi and they both pointed out the place of occurrence vide pointing out memo Ex.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 15 of 32PW5/B. Thereafter, accused Manish Jain led the police party to H. No. T-666, Gali No. 10, Gautam Puri, Delhi i.e the house of another accused Mohsin. On reaching there, the door was found closed and they came to know that accused Mohsin was not present there at that time. Thereafter, they came back to the PS along with both accused persons. He recorded the statements of Ct. Sandeep and Ct. Avnish. At about 12.30 AM (on 02.07.2011) accused Manish Jain led the police party to the house of accused Mohsin and accused Mohsin was found present at his house at the first floor and he was arrested from there at the instance of accused Manish Jain vide his arrest memo Ex. PW13/A and his personal search was conducted vide memo Ex. PW 13/B. Thereafter, they came back to the PS along with both accused persons. In the PS, accused Mohsin was interrogated and during that course he made disclosure statement Ex. PW13/C. At about 6.30 AM, accused Mohsin led the police party to Shastri Park, Red Light, Delhi and there complainant Javed also met them and identified accused Mohsin while saying that he (Mohsin) had fired a shot upon him. Thereafter, accused Mohsin led the police party to near Bela Farm, Usmanpur, Delhi and from there he got recovered one country made pistol from beneath the stone under a Kikkar Tree. The country made pistol was checked and it was found containing one live cartridge in its barrel. Thereafter, the sketch of the country made pistol and live cartridge was prepared by him vide Ex. PW4/C. Thereafter, the same were sealed in a cloth parcel with the sealed of MK and the parcel was taken into possession vide seizure memo Ex. PW4/B. He had also prepared site plan of the place of recovery vide Ex. PW4/E. Thereafter, accused was brought to the PS, he deposited case property with FIR No. 228/2011 State Vs. Manish Jain Etc. Page 16 of 32 MHC(M) and recorded the statement of PWs. After getting the medical examination of all three accused persons, they were produced before the court concerned and from there they were remanded to J/C. On 12.07.2011 the parcel containing country made pistol and live cartridge was sent to FSL Rohini through Ct. Lal Babu. He recorded the statement of Ct. Lal Babu and MHCM.
On 08.08.2011, the parcel containing shirt of injured Javed was also sent to FSL Rohini through Ct. Harjeet and he recorded statement of Ct. Harjeet and MHC(M) in this regard. Later on, he had also collected the Ballistic Report from MHC(M) vide Ex. PW16/B. He had also obtained the opinion on the MLC of the injured from the concerned doctor regarding nature of injury. He had also recorded the statement of PCR officials. He obtained the permission u/s 39 Arms Act. After completion of the investigation, charge- sheet was filed before the court concerned. Later on, he also collected the FSL Reports Ex. PW16/C Ex. PW16/D and Ex. PW16/E from MHC(M) and same were filed in the court.
He identified the case property i.e. one country made pistol Ex. PW4/P1 and one test fired cartridge Ex. PW4/P2 to be the same which were got recovered by accused Mohsin. He identified all three accused in the court.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xvii) PW-17 B. K. Singh, who was posted as Addl. DCP, NE, Delhi at the relevant time. He has proved the sanctions under Arms Act for prosecution of accused Manish Jain and Mohsin as Ex. PW17/A. FIR No. 228/2011 State Vs. Manish Jain Etc. Page 17 of 32 The witness was not cross-examined by Ld. Defence counsel despite having giving the opportunity. (xviii)PW-18 Puneet Puri, was the Ballistic expert from FSL. He examined the country made pistol and cartridge recovered during investigation of the present case. He has proved the report prepared by him as Ex. PW16/B. The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xix) PW-19 Dr. Navneet Kaur, was a deputed doctor who had identified the handwriting and signature of Dr. Ashish, who had conducted examination of victim Javed at GTB hospital. He has proved the MLC of Javed as Ex. PW10/A and endorsement of Dr. Ashish as Ex. PW10/A. The witness was cross-examined by Ld. Defence counsel but nothing material came out therein.
(xx) PW20 K. C. Varshney was the expert from biology division of FSL, Rohini. He examined the shirt of victim, which was recovered during investigation of the present case. He has proved his report as Ex. PW16/C. The witness was cross-examined by Ld. Defence counsel but nothing material came out therein.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused persons, which were denied by them. Accused Manish Jain stated that he is innocent. He borrowed a sum of Rs. 25,000/- from Mohd. Javed but he was unable to return the said amount and Mohd. Javed has falsely implicated him and his friends in this case.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 18 of 32Accused Ashu Jain and Mohsin stated that Manish Jain borrowed a sum of Rs. 25,000/- from Mohd. Javed but he was unable to return the said amount and Mohd. Javed has falsely implicated him and his friends in this case. Accused Manish Jain preferred to lead evidence in defence whereas accused Ashu Jain and Mohsin did not opt to lead defence evidence. However, no defence witness was produced by accused Manish Jain and opportunity to lead defence evidence was closed vide order dated 19-07-2022.
FINAL ARGUMENTS
6. This court has heard the arguments and perused the record. It is submitted on behalf of accused persons that there are material contradictions in the testimony of prosecution witnesses. It is submitted that medical record of victim Javed is not consistent with the oral testimony of witnesses. As per testimony of PW4 and PW12, accused Mohsin had fired on victim Javed on his neck from front side, whereas as per MLC, the victim has received gun shot injury on the backside of his neck and not on the front side as per purport of version of eyewitness. One of the eyewitness of the prosecution namely PW14 Arif has failed to support the case of the prosecution. There is no evidence to connect the recovered pistol from accused Mohsin with the alleged injury inflicted upon the victim Javed. Neither any fired cartridge case nor any blood stains nor any bullet lead has been recovered by the IO from the spot nor there are any marks of bullet hitting any wall at the place of incident. No independent public witness was joined in investigation by the prosecution. It is, therefore, prayed the benefit of doubt be conferred upon the accused persons.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 19 of 32On the other hand, Ld. Addl. PP for the State submitted that the testimonies of all the prosecution witnesses is sufficient to bring home the guilt of accused beyond reasonable doubts. There is no major discrepancy or contradiction in the testimony of prosecution witnesses. PW4 and PW12 have deposed clearly about the role of each of the accused persons, and the manner in which the injury has been inflicted to PW4. PW12 has also corroborated the testimony of PW4. Medical evidence led by the prosecution in the form of MLC is also consistent with oral testimony of witnesses.
FINDINGS OF THE COURT
7. Before analyzing the prosecution and defence evidence adduced in the present case, this court deems it proper to refer to provisions of law and citations of Superior courts, which are found to be applicable on the facts of the present case.
441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
336. Act endangering life or personal safety of others.-- Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both.
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender FIR No. 228/2011 State Vs. Manish Jain Etc. Page 20 of 32 shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
25. [(1AAA)] of Arms Act--Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than [three years, but which may extend to seven years] shall also be liable to fine.
27. Punishment for using arms, etc. of Arms Act--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
8. It is noted that present case is primarily based on the testimony of eyewitnesses namely PW4 Mohd. Javed, who is the victim as well as complainant in the present case and PW12 Vishal. They both have correctly identified all the accused persons in their respective depositions. They have explained in detail about specific role of each of the accused persons; the manner in which the victims Javed and Vishal were assaulted; the body part on which the victim Javed has received the injury. PW4 Mohd. Javed has categorically deposed that when they reached there (near water tank, Gautampuri), Manish and Ashu got stopped their motorcycle. Accused Mohsin was also with them. Thereafter, they started scuffling with Vishal and when he tried to intervene, in the meantime accused Manish fired a shot in the air. On this, Vishal and Lakshay @ Raghav took themselves back for some distance. On this Manish told to him "ye Vishal ka bahut himayati banta hai, iska khel khatam kar do". On this, Manish and Ashu caught hold of him from his both arms and Mohsin fired a shot on his neck (backside). After receiving gun shot injury, he fell down. Thereafter, all the accused persons ran away from there. PW4 has also identified FIR No. 228/2011 State Vs. Manish Jain Etc. Page 21 of 32 his blood-stained shirt which was Ex. PW4/P-3.
9. PW-4 Mohd. Javed has correctly identified his blood- stained shirt as Ex. PW4/P3 and one country made pistol and one test fired cartridge as Ex. PW4/P-1, which was used and got recovered by accused Mohsin, which were seized by the IO during the investigation of the present case. His testimony is inconsonance with his statement Ex. PW4/A recorded by the IO, which forms the basis of registration of the present FIR.
10. With regard to the incident of 26-06-2011, PW12 Vishal has also categorically deposed that he, Lakshaya Raghav and Mohd. Javed proceeded towards Gautam Puri Paani (water tank) on the motorcycle of Mohd. Javed and on the way, one Arif, friend of Mohd. Javed met them. On this, Arif also agreed to accompany them and told them that he was coming on his bike. They reached near Gautm Puri Water tanki at about 11:30 PM, accused persons Manish, Ashu and one another person whose name was revealed later on as Mosin, were standing there in the dark. They stopped them and started abusing Vishal while saying "tu apne aap ko bada hero banta aur apne himayati ko lekar aaya hai" and they started giving beatings to him. In the meantime Arif, friend of Mohd. Javed, also reached on his motorcycle. Arif and Javed tried to save him from Manish, Ashu and their friend. On this, accused Manish had taken out pistol and fired a shot in the air. When he fired a shot, they all frightened and he and Arif went back for some distance, on this, accused persons caught hold Mohd. Javed and they started giving beatings to him with kick and fist while saying that "ye bara himayati ban kar aaya hai". On this, accused Mohsin asked Ashu and Manish to get back and while saying he fired a shot on the person of Mohd.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 22 of 32Javed and the bullet hit in the neck of Mohd. Javed. After receiving bullet injury, Mohd. Javed fell down on the ground. On seeing this, he ran away from there due to fear. Later on, he came to know that Arif and Lakshya Raghav took Mohd. Javed to hospital.
11. MLC Ex. PW10/A corroborates the version of above- stated victims. As per the said MLC, the victim Javed has received following injuries:
1. Entry wound over posterior region of neck with blackening around lacerated wound of approx. size 2 X 2cm.
2. Exit wound over right side lateral posterior aspect (lacerated wound of approx. size 3 x 3 cm with no active bleed.
3. Bruise over left arm distally, left side of back, left trunk region.
4. Abrasion over right side of back 3cm X 5mm, right side of nose 1cm x 5mm.
5. lacerated would over occupied region of size 1.5 cm X 5cm.
6. Multiple petehie over right forearm.
The above said injuries were caused by gunshot.
12. PW12 Vishal has also corroborated the version of PW4. Testimony of PW4 and PW12 clearly reflects the active role performed by each of the accused persons in committing the alleged offence of assault. Despite lengthy cross-examination, both PW4 and PW12 stood by their version recorded during the investigation of the present case. Medical documents viz. MLC Ex. PW10/A corroborates ocular testimony of PW6 with regard to the injury sustained by him.
13. It is well-settled that the evidence of an injured witness commands greater respect and weightage under the law. In several decisions, such as Jarnail Singh v. State of Punjab.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 23 of 32(2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6SCC 673; and Abdul Sayed v. State of Madhya Pradesh. (2010) 10 SCC 259. The Hon'ble Supreme Court has time and again reiterated the value of an injured witness and has observed:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or I want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
14. It is contended that there is inconsistency in the testimony of PW4 Javed with regard to the manner in which gunshot injury has been received by him. Attention of the court was drawn towards examination in chief dated 18-09-2013 wherein he has stated that, "Mohsin fired a shot on my neck (backside)". It is submitted that PW4 Javed had claimed that accused Mohsin had fired a shot on his backside. Whereas as per the prosecution case, the accused Mohsin had fired from front side. It is further urged that testimony of PW4 Javed cannot be relied upon as one of the eye-witness namely PW14 Arif had falsified the version of PW4. In this regard, it is pertinent to note that PW4 Javed had nowhere expressly stated that accused Mohsin had fired on his backside. He only stated that he had received the bullet shot on the backside of his neck.
15. It is settled position in law that testimony of an eyewitness is to be preferred to that of a medical/ forensic witness. Reference may be made to State of U.P. v. Hari Chand (2009) 13 FIR No. 228/2011 State Vs. Manish Jain Etc. Page 24 of 32 SCC 542, wherein the Hon'ble Apex Court told the position of law thus:
"In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
16. At this stage, it is pertinent to refer here the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43, wherein it was observed by the Hon'ble Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, 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.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :- "It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, 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.
(133) Even otherwise, when an eye witness is examined at FIR No. 228/2011 State Vs. Manish Jain Etc. Page 25 of 32 length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is FIR No. 228/2011 State Vs. Manish Jain Etc. Page 26 of 32 giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
17. It has been held by the Hon'ble High Court of Delhi in the case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No. 241/1997 that:-
"If the discrepancies found in the testimony of a witness are normal and attributable to loss of memory with the passage of time or they are on matters which are peripheral or trivial, not forming the core of the case, his testimony cannot be rejected on account of such minor variations or infirmities. But, where the contradiction relates to the main incident forming core part of his testimony, that could depending upon the nature of the contradiction and other facts and circumstances of the case, seriously affect the credibility and truthfulness of the witness since he is not expected to give contradictory version with respect to the important material parts of the incident which he claims to have witnessed."
18. Further, it is well settled that testimony of hostile witness cannot be discarded in toto. In the case of Khujji @ Surendra Tiwari Vs. State of M.P, AIR 1991 Supreme Court 1853, Hon'ble Apex Court examined the evidentiary value of a hostile witness and held that the evidence of a witness, declared hostile, is not wholly effaced from record and that part of evidence, which is otherwise acceptable can be acted upon. Hon'ble Apex Court relying upon its previous decisions in Bhagwan Singh Vs. State of Haryana, (1976) 2 SCR 921, Rabinder Kumar Dey Vs. State of Orrisa (1976) 4 SCC and Sayed Akbar Vs. State of Karnataka (1980) 1 SCR 95 held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version found to be dependable on a careful scrutiny thereof.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 27 of 32Merely because one of the eyewitness of the incident, PW14 in the present case, has not supported the case of the prosecution, the entire prosecution case cannot be thrown away.
19. No material contradiction/ discrepancy/ inconsistency has been pointed out by the Ld. Defence counsel in the version of PW4 Javed and PW12 Vishal which would have the effect of discarding their testimonies in toto. In view of the law as stated above, the contention regarding contradictions, inconsistencies and discrepancies in the version of PW4 and PW12 fails to inspire the confidence of this court. Even though PW14 has disowned the case of prosecution on the aspect of identity of accused persons yet his version corroborates the version of PW4 and PW12 to the effect that PW4 has received injuries.
20. It is argued vehemently that no independent witness was got examined by the IO and therefore, prosecution case cannot be relied upon. In this regard, it is pertinent to note that in the present case, PW4 Javed and PW12 Vishal have been cross- examined at length. There is nothing in their version to indicate that any other independent witnesses had seen the occurrence i.e. the incident of assault being caused by the accused persons.
21. It is pertinent to mention that on the above-mentioned aspect, it has been observed by the Hon'ble Delhi High Court in judgment titled "Jhodha Sahney Vs. State of NCT of Delhi 2011 (1) Crimes 382", as under:-
"7. The next ground taken by the Counsel for the appellant is that no public witness was joined at the time of recovery. The accused had started moving quickly towards the village on the seeing police party and police party therefore stopped the accused/appellant and checked his gunny bag. On checking it was found that gunny bag held by the accused contained charas. Merely because the police party did not associate public persons in this "chance recovery" cannot be a ground to disbelieve the FIR No. 228/2011 State Vs. Manish Jain Etc. Page 28 of 32 case of prosecution. Moreover, there is normal tendency of public persons not to associate themselves with police investigation as the investigation and the trials in this country are the source of great harassment to the witnesses who are often not taken care of by the Courts or by the police. The witnesses are normally scared to join any investigation or give testimony even of what they have witnessed in broad daylight because of the repeated summoning in the Courts and sending them unexamined in a routine and casual manner by the Courts."
22. Dealing with the aspect of reluctance of the public persons to join the police proceedings, this Court in Jawahar vs. State (2007) ILR 2 Delhi 146 observed as under:-
"As far as non association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are; the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of FIR No. 228/2011 State Vs. Manish Jain Etc. Page 29 of 32 police witness cannot be rejected on the ground that they are official witnesses".
Thus, the contention regarding non-joining of independent public witnesses raised by the Ld. Defence counsel fails to inspire confidence of this court.
23. However, it is pertinent to note that both PW4 and PW12 had nowhere deposed that they were restrained by the accused persons in proceeding in any particular direction. Rather, as per their version, they themselves were going to meet accused persons at near water tank, Gautampuri. Thus, the prosecution has failed to establish offence punishable u/s 341/34 of IPC. It is further noted that there is no recovery of weapon of offence from the possession of accused Manish Jain. Nor any witness has deposed about the description of the weapon with which the accused Manish had fired in the air. Thus, the prosecution has failed to establish offence punishable u/s 27 of Arms Act against accused Manish Jain. Further, it is noted that there is nothing on record to show that co-accused Mohsin and Ashu were sharing common intention with accused Manish Jain in the incident of firing of gunshot in the air. Thus, in the opinion of this court, the prosecution has failed to establish charge for the offence punishable u/s 336/34 against accused Mohsin and Ashu. It is observed that neither any fired cartridge case nor any bullet lead have been recovered during the investigation of the present case. Thus, there is no evidence that the country made pistol, which was recovered from the possession of accused Mohsin which was seized vide seizure memo Ex. PW4/B, was used by accused Mohsin at the time of incident i.e. 26-06-2011 at about 11:30 pm, near water tank, Gautampuri. As such, the prosecution has FIR No. 228/2011 State Vs. Manish Jain Etc. Page 30 of 32 failed to establish the offence punishable u/s 27 of Arms Act against accused Mohsin. It is apparent from the testimony of prosecution witnesses that all the accused persons had committed assault upon upon Javed and Vishal in furtherance of their common intention. Both PW4 and PW12 have testified about active role of all the accused persons in the commission of alleged offence of assault.
24. Testimonies of recovery witnesses namely PW16 SI Mukesh Kumar, PW4 Mohd. Javed, PW13 Ct. Sanjeev and PW5 Ct. Avnish have clearly established recovery of country made pistol containing one live cartridge, which was recovered at the instance of accused Mohsin, under the Keekar tree at Bela Farm, Yamuna Khadar and seized vide seizure memo Ex. PW4/B. The manner in which the victim Javed was fired clearly shows the intention of the accused persons that they were intending to commit murder of victim Javed.
DECISION OF THE COURT
25. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of sections 323/307/34 of IPC are satisfied qua all three accused persons. The prosecution has successfully proved beyond reasonable doubt its case against the accused persons for the offence punishable u/s 323/307/34 of IPC. Accordingly, the accused persons namely Manish Jain, Ashu Jain and Mohsin are hereby convicted of the charge punishable u/s 323 and 307 r/w 34 of IPC. Further, accused Manish Jain is also convicted for the FIR No. 228/2011 State Vs. Manish Jain Etc. Page 31 of 32 offence punishable u/s 336 of IPC. Accused, Mohsin is further convicted for the offence punishable u/s 25 of Arms Act.
However, all accused persons are acquitted for the offence punishable u/s 341/34 of IPC. Accused Ashu Jain and Mohsin are also acquitted for the offence punishable u/s 336/34 of IPC. Further, accused Manish Jain and Mohsin are also acquitted for the offence punishable u/s 27 of Arms Act.
Let the convicts be heard on the quantum of sentence and grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 22-07-2024
PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2024.07.22 16:34:50
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 22-07-2024.
FIR No. 228/2011 State Vs. Manish Jain Etc. Page 32 of 32