Delhi District Court
State vs . 1. Gaurav Yadav, on 28 August, 2018
IN THE COURT OF MS. RAJ RANI, ADDL. SESSIONS JUDGE 04,
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Case No. 51815/16
FIR No: 153/11
U/s: 307/34 IPC and 25/27 Arms Act.
PS : Khanjawala
STATE Vs. 1. Gaurav Yadav,
S/O Sh. Mahender Singh
Yadav
R/o. Village Mitrau,
Najafgarh, Delhi43.
2. Praveen Yadav,
S/o. Sh. Jagpal Yadav,
R/O Village Samaypur
Badli, Delhi.
Complainant:
Jogender Singh @ Banti,
S/O Sh. Rai Singh,
R/O. VPO Siraspur, Delhi.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 1 of 57
Date of receipt of file in Sessions Court : 07.09.2012
Arguments heard on : 25.07.2018
Date of judgment : 28.08.2018
J U D G M E N T:
1.By this judgment, I shall conclude the trial of the case FIR No.153/11, Police Station Khanjawala registered against the accused persons for the offences punishable under Section U/S 307/34 IPC and 25/27 Arms Act. The offences so committed are well within the cognizance of this Court wherein the accused are facing the trial.
2. It is the case of the prosecution that on 24.06.2011 at about 9.45 pm at DC Office, near Tamna Vatika, Kanjhawala, Delhi, complainant alongwith his two friends namely Sanjeet and Sandeep had gone to attend the marriage function at Tammna Vatika. When they reached near the gate of Tammana Vatika and talking with some known persons, at about 10.00 pm accused Praveen Yadav S/o Sh. Jagpal Singh alongwith his one associate came there and told complainant not to give his evidence in case registered FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 2 of 57 against him u/s 307 IPC at PS Samay Pur Badali. Accused Gaurav Yadav asked accused Parveen Yadav to fire a bullet on complainant. Thereafter accused Praveen Yadav took out one revolver from the left side dub of his wearing pant and on seeing this complainant for saving himself, caught hold hand of accused Praveen Yadav. Thereafter complainant tried to snatch the revolver from the hands of accused Praveen Yadav, but accused Praveen Yadav with the intention to kill complainant, fired a gunshot on him, which was shot in the air. It is further the case of the prosecution that accused Praveen Yadav gave teeth bite on the wrist of right hand of complainant and on hearing the sound of fire, public persons gathered there and apprehended the accused Praveen Yadav. Public persons gave beatings to the accused Praveen Yadav, but after getting himself released from the clutches of the public, accused Praveen Yadav and accused Gaurav fled away from the spot.
3. The present case was assigned to this Court after the FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 3 of 57 committal of proceedings by the Ld. Metropolitan Magistrate concerned to the Sessions Court. Before committal of the proceedings, the compliance of Section 207 Cr.P.C was made by Ld. Metropolitan Magistrate by supplying the complete set of charge sheet to the accused.
4. The arguments were heard on the point of charge and charge for the offences punishable under Section 307 read with Section 34 IPC was framed against both accused persons and separate charges U/S. 25 and 27 Arms Act were also framed against accused Praveen Yadav by the Ld. Predecessor of this Court to which accused persons pleaded not guilty and claimed trial.
5. In support of its case, the prosecution has examined as many as 14 witnesses.
PUBLIC WITNESSES:.
6. The prosecution has examined three public witnesses, complainant Joginder as PW3, Sandeep/eye witness as PW4 and Sanjeet Rana/another eye witness as PW6. PW3, PW4 and PW6 are the material witnesses in the FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 4 of 57 present case and I will discuss their testimonies in the later part of judgment.
MEDICAL EVIDENCE:
7. PW1 Dr. Lakhwindeer Kaur has stated that on 24.06.2011, patient Joginder Singh, son of Rai Singh who was brought by HC Vijay Kumar with alleged history of physical assault, was examined by Dr. Fahad, under her supervision as she was working as CMO on that day. PW1 further deposed that the patient had stated alleged history of human bite on right forearm. PW1 further deposed that on examination, human bite on right forearm (ventral aspect) was observed and she proved MLC of PW3 as Ex.PW1/A.
8. PW1 further stated that on the same day, he had examined patient Parveen Yadav son of Jagpal Singh, who was brought by HC Virender with alleged history of physical assault as told by the patient himself. PW1 further deposed that she observed injuries on his person and proved MLC of accused Praveen Yadav as Ex. PW1/B.
9. PW5 Dr. Manoj Dhingra has stated that on 27.07.2011, he FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 5 of 57 received MLC No. 10264 of Joginder Singh EX. PW1/A and he had given opinion on the MLC on the basis of injury mentioned in the MLC to the effect that the injuries were simple in nature. This witness has encircled his opinion in his handwriting at point X on EX. PW1/A. OFFICIAL WITNESS.
10. PW13 Mr. Puneet Puri, Asstt. Director ( Ballistics), FSL Rohini,Delhi has stated that on 05.08.2011, one sealed parcel sealed with the seal of RSY pertaining to this case was received in FSL through Ct. Sunil Kumar and the same was marked to him for examination. The seals on the parcel were intact and as per the specimen seal provided with the FSL form.PW13 further stated that on opening the parcel, one revolver .32 inch caliber (No. and year of manufacturing found erased) and one .32 inch cartridge case were taken out and marked as Ex.F1 and EC1 respectively by him. During examination, four 7.65 mm cartridges and one .32 inch cartridge were found inside the grip of the revolver already marked Ex.F1 and were taken out and marked as FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 6 of 57 Ex.A1 to Ex.A4 and Ex.A5 respectively by him.
11. PW13 further deposed that on examination, he found that the revolver marked Ex.F1 was in working order. Test fire was conducted successfully by using two .32 inch cartridges from the Laboratory stock and the test fired cartridge cases were marked as TC1 and TC2. The 7.65 inch cartridges marked Ex.A1 to Ex.A4 were live ones and could be fired from 7.65 mm / .32 inch caliber fire arm. The .32 inch cartridge marked Ex.A5 was live one. The cartridge case marked Ex.EC1 was a fired empty cartridge and had been fired through the revolver marked Ex.F1 as the individual characteristics of firing pin marks and breech face marks present on Ex.EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the comparison microscope. The revolver marked Ex. F1 was a firearm. The cartridges marked Ex.A1 to Ex.A5 and cartridge case marked EC1 were ammunition as defined in Arms Act, 1959. The exhibits were then resealed with the seal of PP FSL, DELHI. His detailed report in this regard is FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 7 of 57 proved as Ex.PW13/A. POLICE WITNESSES.
12. PW2 Retired SI Prem Singh has stated that on 25.06.2011 he was posted as Incharge Mobile Crime Team, outer district and on that day on receiving a call, he alongwith other staff of his crime team reached at the spot i.e. Tamana Vatika near DC office, Khanjawala and there ASI Rawat SinghIO met them. Witness further deposed that he inspected the place of occurrence and crime team photographer HC Karamvir took the photographs of the spot and he prepared his inspection report EX. PW2/A and handed over the same to ASI Rawat Singh, who recorded his statement.
13. PW7 SI Dharambir Singh has stated that in the intervening night of 24/25.06.2011, he was posted at PS Khanjawala as ASI and was working as Duty officer from 5 pm to 9 am next day. On that night, at about 2 am, he received a rukka sent by ASI Rawat Singh through Ct. Rajesh and on the basis of said rukka, he got the FIR recorded on computer through FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 8 of 57 computer operator Ct. Kuldeep and proved copy of the same as EX. PW7/A and witness deposed that he made his endorsement on the original rukka EX. PW7/B.
14.PW8 Ct. Anil Kumar has stated that on 24.06.2011, he was posted at PS Kanjhawala as constable and was working as DD writer. On that day, at about 10.24 pm, he received an information on telephone through wireless operator of PS Khanjawala that " tamanna vatika kanjhawala, ek admi ne mere uper pistol se goli chalane ki koshish ki, maine pistol cheen liya, admi bhaag gaya'. On this information, he recorded DD No. 89B EX. PW8/A and ASI Rawat Singh was telephonically informed to take the proper steps.
15.PW10 Ct. Sunil Kumar has stated that on 05.08.2011, MHCM HC Rajbir Singh had given a parcel sealed with RSY containing a revolver and live bullets of .32 inch bore on which S and WL was engraved, in open condition to him for depositing with FSL Rohini. He had taken them vide RC No. 122/21/11. He had deposited the acknowledgement of FSL to the malkhana mohrir on return to the police station.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 9 of 57
16. PW11 ASI Rawat Singh has stated that on 24.06.2011 he was posted at PS Kanjhawala, as ASI. On that day, on receiving DD no.89B, he alongwith PW9 Ct. Rajesh Kumar reached at the spot ie. DC Office near Tammana Vatika, there complainant Joginder Singh met them and he produced one revolver and he recorded his statement / complaint Ex.PW3/A. On checking the revolver, one empty cartridge case was found inside the chamber of revolver, on the bottom of which KF 32S&WL was found engraved. He prepared sketch of revolver and empty cartridge case, after measuring the same, which is Ex.PW3/A1. He further stated that the oblique length of revolver was 22cm, length of butt was 7cm, length of body was 7.5cm and length was 6.5cm. The length of empty cartridge case was 2.5cm. On the body of revolver, "revolver 32" MKI Feildgun Kanpur was engraved.
17. PW11 further deposed that on his requisition, crime team reached at the spot and he got the spot photographed and inspected through crime team. The revolver and empty FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 10 of 57 cartridge case was seized vide seizure memo Ex.PW3/A2 after preparing a pulanda and sealing the same with the seal of RSY and seal after use was handed over to Ct. Rajesh Kumar. Thereafter, he got complainant Joginder Singh medically examined at SGM hospital and prepared tehrir Ex.PW11/A and handed over the same to Ct. Rajesh and he took the same to PS for registration of FIR. Both the accused Praveen and Gaurav were found present in the emergency of SGM hospital for treatment of accused Parveen who had sustained injuries due to the beatings given by public, who were identified by complainant Joginder Singh. Meanwhile, Ct. Rajesh again reached at the hospital and handed over copy of FIR and tehrir to him. Both the accused Parveen and Gaurav were arrested vide arrest memo Ex.PW3/B and Ex.PW3/C and their personal search were conducted vide memos Ex.PW3/D and Ex.PW3/E. Thereafter, both of them led the police party to the spot and pointed out the spot vide memo Ex.PW9/A and he recorded disclosure statements Ex.PW9/B of accused Parveen and FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 11 of 57 Ex.PW9/C of accused Gaurav. He came back to PS and case property was deposited in malkhana and he recorded the statements of witnesses.
18. This witness further deposed that on 01.08.2011, he obtained five cartridge cases of .32 inch bore from OPL and on 05.08.2011, he got the pulanda of revolver and empty cartridge case and five live cartridges deposited in FSL through Ct. Sunil vide RC No.122/21/11 and on that day, he recorded statement of MHC(M) and Ct. Sunil and he obtained FSL result and sanction u/s. 39 Arms Act. He has identified revolver Ex.P1 and empty cartridge case Ex.P2. He identified five cartridges are the same cartridges which were sent by him to FSL for comparison.
19. PW9 Constable Rajesh Kumar has stated that in the intervening night of 2425.06.2011, he was posted at PS Khanjawala, Delhi and on that night, he was on emergency duty with ASI Rawat Singh and joined the investigation of the present case. He has supported the prosecution case and corroborated the version of PW11 SI Rawat Singh on all FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 12 of 57 the material facts as deposed by him.
20. PW12 SI Ravi Kumar stated that on 31.10.2011, he was posted at PS Kanjhawla, Delhi. On that day, the then SHO, PS Kanjhawala, entrusted the case file to him for preparation of the charge sheet, as the previous IO ASI Rawat Singh had gone to attend an Inter School Training on being promoted as ASI. Witness further deposed that collected the sanction u/s.39 Arms Act from the office of DCP Outer District, Delhi and thereafter, prepared the charge sheet and filed the same in the court.
21. PW14 Dr. P. Karunakaran, Joint Dy. Director, Ministry of Home Affairs, New Delhi has stated that on 10.11.2011 he was posted as Addl. DCPI, Outer District, Delhi. On that day, the complete case file of FIR No.153/2011 u/s 307/34 IPC and 25/27 of Arms Act PS Kanjhawala was placed before him and he perused the report to be submitted u/s 173 Cr.PC, statements of the prosecution witnesses recorded u/s 161 Cr.PC and other documents which were part of the chargesheet including the ballistics examination FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 13 of 57 report No. FSL2010/F4406 dated 30.09.2011 and after applying his mind, he was of the view that on 24.06.2011 at about 9.45 pm at Tamana Vatika near DC Office, Kanjhawala, accused Praveen, had possessed a revolver of .32 inch caliber containing one .32 inch cartridge case and had used the same. Accordingly, he accorded sanction u/s 39 of the Arms Act, 1959 for the prosecution of accused Praveen. He has proved his sanction as Ex.PW14/A.
22.Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Sr. PW Name of the Details of No. No. witnesses witnesses 1. PW1 Dr. Lakhwinder Medical witness Kaur 2. PW2 Retired SI Prem Police witness Singh incharge crime team 3. PW3 Sh. Joginder Singh Public witness FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 14 of 57 complainant. 4. PW4 Sh. Sandeep Public witnesseye witness 5. PW5 Dr. Manoj Dhingra Medical witness 6. PW6 Sh. Sanjeet Rana Public witnesseye witness 7. PW7 SI Dharambir Singh Police witnessduty officer 8. PW8 Ct. Anil Kumar Police witnessDD writer 9. PW9 Ct. Rajesh Kumar Police witness accompanied IO 10. PW10 Ct. Sunil Kumar Police witness deposited the parcel with FSL. 11. PW11 ASI Rawat Singh Police witnessIO of the case 12. PW12 SI Ravi Kumar Police witness second IO. 13. PW13 Mr. Puneet Puri Witness from FSL FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 15 of 57 14. PW14 Dr. P. Karunakaran Police witnessgiven sanction U/S 39 of the Arms Act. List of documents Sl. Exhibit No. Details of Proved by No. documents 01 EX.PW1/A MLC of Joginder PW1 Dr. Lakhwinder Kaur 02. EX.PW1/B MLC of Praveen Yadav 03. EX.PW2/A Inspection report PW2 Retired SI Prem Singh 04. EX.PW3/A Statement of complainant 05. EX.PW3/A1 Sketch of empty cartridge and revolver PW3 Sh. Joginder 06. EX. PW3/A2 Seizure memo of Singh empty cartridge and revolver 07. EX. PW3/B Arrest memo of FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 16 of 57 accused Praveen 08. EX. PW3/C Arrest memo of accused Gaurav 09. EX. PW3/D Personal search memo of accused Praveen 10. EX. PW3/E Personal search memo of accused Gaurav 11. EX. P1 and Revolver and P2 empty cartridge respectively. 12 EX.PW4/DA Statement of PW4 Sh. Sandeep Sandeep U/S. 161 Cr.P.C. 13. Ex. PW7/A Computerized copy of FIR PW7 SI Dharambir Singh 14. EX. PW7/B Endorsement on rukka 15. EX. PW8/A Copy of DD Ct.Anil Kumar No.89B FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 17 of 57 16. EX.PW8/DA Copy of DD No. 88B 17. EX. PW9/A Pointing out memo of place of occurrence Ct. Rajesh Kumar 18. EX. PW9/B Disclosure statement of accused Parveen Yadav 19. EX. PW9/C Disclosure statement of accused Gaurav 20. EX. PW11/A Tehrir PW11 ASI Rawat 21 EX. PCR Form Singh PW11/DA
22. EX. PW13/A Detailed report of PW13 Mr. Puneet FSL Puri
23. EX. PW14/A Sanction of DCP PW14 Dr. P. U/S. 39 of Arms Karunakaran Act FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 18 of 57
23.After completion of the prosecution evidence, statement of accused persons under Section 313 Cr.P.C have been recorded, wherein, accused persons have denied all the allegations leveled against them by the witnesses in their testimonies. Accused Parveen Yadav has stated that he is innocent and has been falsely implicated in this case. He was beaten by complainant and his friends and in that process he had received injuries. Nothing was recovered at his instance. A complaint case U/S. 200 Cr.P.C. alongwith application U/S. 156 (3) Cr.P.C. is pending in the court ld. MM.
24. Accused Gaurav Yadav has also stated that he is innocent and has been falsely implicated in this case being the friend of coaccused Praveen Yadav. He stated that his signatures were forcibly obtained on some blank papers by the police officials. Accused Gaurav Yadav has not produced any witness in his defence. However, accused Parveen has examined three witnesses in his defence.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 19 of 57
25. DW1 Sh. Jagdish has stated that on 24.06.2011 he had gone to attend the marriage of the niece of his friend Hans Raj @ Hanse at Tamanna Vatika, Kanjhawala and at about 9.30 pm his cell phone rang and he came out of said Vatika to attend the call as inside the Vatika due to sound of DJ, it was not possible to make the conversation on the phone. When he came out of Tamanna Vatika, he saw that accused Parveen Yadav was running and he was being chased by 34 persons and after a short chase, he was apprehended by the said 34 persons and one out of those persons namely Joginder @ Bunty took out his revolver and started hitting accused Praveen Yadav with the butt of revolver and thereafter fired one bullet in air. One out of those persons lifted a stone and hit the same on the face of accused Praveen Yadav. A commotion took place there as accused Praveen Yadav was raising alarm 'bachaobachao'. Thereafter said Joginder @ Bunty fled away from there in a car. Accused Praveen Yadav make a call on no. 100 and PCR reached at the spot and took accused Praveen Yadav FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 20 of 57 in the PCR.
26. DW2 Sh. Gaurav Yadav stated that on 24.06.2011 he had gone to attend marriage of Sonia on the invitation given to him by her uncle Hans Raj, to Tamanna Vatika, Kanjhawala. He reached there at about 9.30 pm and parked his car on other side of road opposite to Tamanna Vatika. As soon as he came out of his car, he saw accused Praveen running towards him and he was being chased by 5 persons, including Bunty, Parvesh and Monu. Meanwhile, he saw that Bunty fired a bullet towards accused Praveen Yadav and thereafter all the said persons apprehended accused Praveen Yadav and started giving beatings to him. Accused Gaurav Yadav was trying to save accused Parveen Yadav. Public persons collected there, PCR van also reached there and took Praveen Yadav with them.
27. Accused Praveen Yadav himself appeared as DW3. He has stated that complainant Jogender Rana was known to him as he was his friend since 19951996. Their relations soured in 2006 as he had purchased a plot of land in that year in FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 21 of 57 which the complainant was insisting that he should be shown half owner thereof. While he was having 66.7 % ownership and rest of 33.3 % ownership was with one Monu Yadav relative of Parvesh Yadav. The complainant has got him falsely implicated in this case. Even in the year 2009, he had implicated him in a false case of PS Samay Pur Badli pertaining to ownership of a plot. The said case is pending trial.
28. DW3 further stated that on 24.06.2011 he had gone to Tamanna Vatika, Kanjhawala at about 8.45 PM for paying Sagun at the marriage of niece of his friend Hansraj. When he came out of the gate of wedding hall at about 9.45 PM, he found five persons standing at a distance of about 1520 steps on the right side. Sensing trouble from them, he leaped towards his car, which was parked on other side of the road. He knew all five of the said persons. They were Jogender Rana @ Bunty, Parvesh Yadav @ Gora, Monu Yadav, Sanjit Rana, Sandeep Rana @ Romi. As soon as he reached at the gate of his car, Jogender Rana exhorted his FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 22 of 57 associates to catch hold of him and kill him. Jogender Rana had taken out a pistol from his right pant pocket and had fired towards him. He save himself by bowing down, in the meantime all five of them caught hold of him. Jogender had then hit him on his right temple with the butt of pistol causing him injuries. Parvesh Yadav and Monu Yadav had held him while Sanjit Rana had given a fist blow on his face causing injury on his lower lip. Sandeep Rana had lifted a piece of stone from the road and hit him first on the right eye lid and then on his nasal bone causing injuries. His cousin Gaurav Yadav, who was behind him had started shouting on seeing him being hit. As soon as the public persons started collecting on hearing his shout, the said five persons ran away towards the police station. He had made a call at number 100 from his mobile number 9899990099. Soon PCR van came at the spot and took him to Sanjay Gandhi Memorial Hospital, where he was treated and his MLC was prepared. His cousin Gaurav had accompanied him in PCR van. After sometime ASI Rawat Singh had come to the FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 23 of 57 hospital and took him along saying that his statement has to be recorded. On bringing him and his cousin to PS Kanjhawala, he had put both of them in the lock up. Neither any action was taken by the police on his MLC nor his complaint was recorded because Sh. Rai Singh Rana, father of complainant Jogender Rana is an Inspector in Delhi Police.
29. He further deposed that the mobile phone from which Jogender Rana had subsequently made a call to PCR belonged to his father. When the police did not take any action on his complaint, he had filed a complaint case in Court. The said case is pending before the Ld. MM and his statement therein has been recorded. He had made applications seeking information under RTI Act. Copy of his application dated 07.03.2017 address to PIO, Police Head Quarter is Ex.DW3/A. Its reply along with annexures running into 06 pages is Ex.DW3/B. Reply to another application received by him from PIO of Police Control Room along with annexures running into 05 pages is Ex.DW3/C. Copy of his FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 24 of 57 application dated 17.02.2017 address to PIO Sanjay Gandhi Memorial Hospital, Mangol Puri is Ex.DW3/D. Its reply with Annexures running into 03 pages is Ex.DW3/E.
30. I have heard the arguments of Ld. Addl. PP for the State and Ld. defence counsels for the accused persons and have gone through the record carefully.
31. Ld. Addl. PP for State has mainly argued that the prosecution has proved its case beyond all shadow of reasonable doubts by leading cogent and convincing evidence. The complainant has been able to prove the recovery of revolver with which accused Parveen Yadav had fired on PW3 and all prosecution witnesses duly identified the accused persons. The prosecution has also proved the teeth bite injury sustained by the complainant (vide MLC Ex.PW1/A). It has also been argued that the testimonies of PWs are reliable, cogent and convincing and there is no material discrepancy or inconsistency in their deposition, hence both the accused persons are liable to be convicted for commission of offences with which they have been FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 25 of 57 charged with.
32. Ld. counsels for accused persons have argued that accused persons have been falsely implicated in the present case and they are not involved in the alleged incident. It has been argued that there are material contradictions in the testimonies of prosecution witnesses and the testimonies of prosecution witnesses do not inspire any confidence. Ld. Counsel for accused Gaurav Yadav has argued that he has been falsely implicated in the present case being the friend of coaccused Praveen Yadav and prosecution has failed to prove the allegations made in the complaint against accused Gaurav Yadav. The Ld. Counsel for accused Praveen Yadav has addressed detailed arguments which I will discuss in the later part of the judgment.
33. In order to prove its case, prosecution has examined complainant Sh. Joginder Singh as PW3 who has stated that on 24.06.2011 at about 09:45 p.m., he alongwith one Sandeep and one Sanjeet, both his covillagers had gone to Tammna Vatika near DC, Office, Kanjhawla to attend a FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 26 of 57 marriage in his Scorpio car. There, they all three alighted from the car and near the gate of Tamanna Vatika, on the road they were talking with their some known persons. At about 10:00 p.m., accused Praveen Yadav came alongwith his one more associate and Praveen Yadav attempted to kill him earlier about two years prior from the date of present incident and the case regarding that attempt was registered at PS Samaipur Badli and near the gate of Tamanna Vatika, accused Praveen Yadav from a distance of about 56 steps told him at a loud pitch of his voice that , "tu mere khilaf court me 307 ke mukedme me gawahi nahi dega wa is case me mere kafi kharcha ho chuka hai, aaj me tere kaam tamam kar deta hoon".
34. PW3 further deposed that thereafter, accused Praveen asked his associate to caught hold him and accused Praveen took out one revolver from the left dub of his pants and aimed the same towards him. He further stated that he caught hold the revolver which accused Praveen was having in his right hand, with both of his hands and thereafter the FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 27 of 57 said associate of accused Praveen Yadav asked accused Praveen Yadav to fire a bullet on him and thereafter Praveen fired a bullet with the revolver which he was having in his right hand with intent to kill him, but as he was also holding the revolver with both of his hands the bullet passed from above his left shoulder. He tried to snatch the revolver from the hands of accused Praveen Yadav but Praveen gave teeth bite on the wrist of his right hand. He however managed to snatch the revolver from the hand of Praveen. Public persons collected there and gave beatings to accused Praveen. Praveen however managed to rescue himself from the crowd and ran away from there saying, " Gaurav Bhag, Gaurav Bhag". Then, he came to know the name of his associate as Gaurav accused. The witness has correctly identified both the accused persons. Both the accused had run away towards Kanjhwala Chowk. He dialed number 100 and PCR reached at the spot. After sometime, the local police also reached there. His statements/complainant was recorded by ASI Rawat Singh of PS Kanjhwala, same is FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 28 of 57 already Ex. PW3/A signed by him at point A. He deposed that he had handed over the revolver which he had snatched from the right hand of accused Praveen to ASI Rawat Singh. IO Prepared the site plan at his instance. IO checked the revolver after opening it and an empty cartridge case is taken out from the revolver and IO prepared the sketch of empty cartridge case as well as of revolver and same is Ex. PW3/A1 signed by him at point A. The said revolver and the empty cartridge case were seized vide seizure memo Ex. PW3/A2 signed by him at point A, after preparing a pullanda and sealing the same with the seal of IO. Witness further deposed that he does not remember the measurement of the revolver and cartridges now due to lapse of time but he can identify the same if shown to him and he identified the revolver as Ex.P1 and the empty cartridge as Ex. P2.
35. PW3 further stated that thereafter police took him to SGM hospital for treatment. There at SGM Hospital both the accused Praveen and Gaurav were found present and they both were arrested on his identification vide arrest memos FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 29 of 57 Ex. PW3/B signed by him at point A and Ex. PW3/C signed by him at point A. IO conducted personal search of both the accused vide memos Ex. PW3/D and Ex. PW3/E.
36. Prosecution has examined Sandeep, eye witness to the incident as PW4 who deposed that he resides at H. No. 216, Village Siraspur, Delhi along with his family. He was running the business of transport. On 24.06.2011, he along with his friend Sanjit s/o Shri Rajbir and Joginder went to the wedding of sister of my friend for giving kanyadan at Tammana Vatika, Kanjhawala, near DC office at Bawana Road in a Scorpio Car near a transformer and thereafter, they reached at the gate of Tammana Vatika and thereafter, they reached at the gate of Tammana Vatika, where Joginder met one of his friend and started talking with him. In the meanwhile, Praveen Yadav with one of his friends had started talking with him. In the meanwhile, Praveen Yadav with one of his friends whose name was later on revealed as Gaurav Yadav, came from the other side of the road and started shouting at Joginder by saying that "tu mere 307 ke FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 30 of 57 case me gawahi nahi dega, usme mera kaafi kharcha ho chuka hai aur aaj tera kaam taman kar dunga".
37. PW4 further deposed that earlier also, accused Parveen Yadav had fired at Joginder due to which case u/s. 307 IPC was registered against him. Accused Parveen Yadav asked his associate Gaurav "pakad sale ko" on this, accused Parveen took out one revolver from the left dub of his wearing pants and pointed it towards Joginder. Joginder managed to escape by holding the hand of accused Parveen Yadav tightly but accused Parveen Yadav fired the shot and Joginder had a narrow escape from it. Accused Parveen Yadav gave a teeth bite on the wrist of Joginder. In the meanwhile, on hearing the noise of fire, public persons also gathered there and they snatched the revolver from the hands of accused Parveen Yadav and gave him beatings. Accused Parveen Yadav managed to escape from the crowd by saying "bhaag Gaurav bhaag" and they both ran on foot towards Kanjhawala chowk. He had seen the entire incident with his own eyes. Both the accused persons Parveen FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 31 of 57 Yadav and Gaurav present in Court were correctly identified by him. His statement was recorded by the IO on next day in the morning.
38. Prosecution has also examined Sh. Sanjeet Rana, another eye witness to the incident as PW6 who deposed that he resides at 294, Village, Siraspur, Delhi. He is SubInspector in Agricultural Produce Market Committee, Azadpur, Subzi Mandi, Delhi. On 24.06.2011, he alongwith Joginder Singh @ Bunty and Sandeep @ Chhattar Singh had gone to Tamanna Vatika, near DC Office, Delhi to attend a marriage in the Scorpio car of Joginder Singh @ Bunty. They reached there at about 9.45 pm and after alighting from the said car, when they were moving towards Tamanna Vatika, there near the transformer, some other known to/friends of Joginder @ Bunty met him and Joginder @ Bunty started talking with them. There, at about 10.00 pm accused Parveen Yadav who was known to him prior to the present incident, came there along with his one other associate and when he was at a distance of about 56 steps from Joginder FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 32 of 57 Singh @ Bunty, he shouted that, "Bunty this time, you will not depose against him in a case u/s 307 IPC filed by you as he had already spent lot of money on the said case and today he will finish you here." Thereafter, accused Parveen Yadav asked his associate to caught hold of Bunty and meanwhile, accused Parveen Yadav took out one revolver from the left dub of his pants and aimed the same towards Joginder @ Bunty. Joginder @ Bunty immediately caught hold of both the hands of accused Parveen Yadav and lifted his hands upwards and the associate of accused Parveen Yadav asked him to fire a bullet and as such accused Parveen Yadav fired a bullet but the bullet went in the air as Joginder @ Bunty had lifted the hands of accused Parveen upwards. Jogidner did not leave the hand of accused Praveen Yadav in which he was holding the revolver, as such, accused Parveen gave a teeth bite to Joginder @ Bunty on his right hand and got released his hand from the hands of Joginder @ Bunty but his revolver was snatched by Joginder @ Bunty. After hearing the alarm and noise of FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 33 of 57 firing of bullet, public persons gathered there and caught hold of accused Parveen Yadav and gave beatings to him. Somehow, accused Parveen Yadav managed to free himself from public persons and ran away from there towards Kanjhawala chowk saying "Gaurav bhag Gaurav bhag". Accused Gaurav also ran away from there along with accused Parveen Yadav. The witness correctly identified both the accused and he has also correctly identified the case property as Ex. P1, when shown to him, by stating that it was the same revolver which was used by accused Parveen Yadav on the day of incident.
Identification of accused persons.
39. PW 3 in his testimony has identified both the accused persons and stated that Parveen Yadav had opened fire towards him and also gave teeth bite on the wrist of his right hand. He further deposed that his associate i.e. accused Gaurav Yadav also asked accused Praveen to fire a bullet on him. PW 4 and PW 6 who are the eye witnesses to the incident also identified both the accused persons.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 34 of 57
40. As far as identify of accused persons is concerned, all material witnesses have unequivocally identified the accused persons to be the same persons who had committed the present offence.
Recovery of weapon of offence used in crime.
41. As per the prosecution case, the weapon of offence is revolver and same has been handed over by PW 3/complainant to ASI Rawat Singh after snatching the same from accused Parveen Yadav. PW 3 has deposed that accused Parveen Yadav had opened fire towards him and he caught hold the revolver which was in the right hand of Parveen Yadav, so the fire went off in the air passing over his left shoulder. Thereafter, he snatched the revolver from the hands of accused Parveen Yadav and on arrival of the police he handed over the revolver to the police.
42.As per testimony of PW4, who is one of the eye witnesses, the public snatched the revolver from the hands of accused Praveen Yadav, whereas as per testimony of PW6, PW3 snatched the revolver from accused Praveen Yadav. ASI FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 35 of 57 Rawat Singh who appeared in the witness box as PW 11 deposed that on the day of incident when he reached at the spot, the complainant Joginder Singh met him and he produced one revolver. As per PW11 when he checked the revolver, one empty cartridge case was found inside the chamber of revolver. He further deposed that on 01.08.2011 he obtained five cartridge cases of .32 inch bore from OPL and on 05.08.2011 he got the pullanda of revolver, empty cartridge case and five live cartridges deposited in FSL. As per testimony of PW13, he found five live cartridges inside the grip of the revolver during examination of revolver in FSL.
43. It has been argued by Ld. Counsel for accused Parveen Yadav that as per the prosecution case, one revolver was produced by the complainant Joginder Singh before the IO on 24.06.11 and on checking the chamber of said revolver one empty cartridge case was found. The revolver and the empty cartridge case were sent to the FSL for examination. PW13 Sh. Puneet Puri the FSL expert, who examined the FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 36 of 57 case property found five more live cartridges in the parcel. It has also been argued that the investigating officer PW11 ASI Rawat Singh deposed that he obtained five live cartridges of .32 inch bore and got the pulanda of the revolver, empty cartridges and live cartridges deposited in FSL. The IO further identified the live cartridges to be the same which were sent by him to the FSL for comparison. But all the five cartridges as identified by the IO in the court during examination are not of the same bore. It has been further argued that the version of PW13, the FSL expert mentioned about the receipt of only one sealed parcel and the said five live cartridges were found contained in that very parcel. It has been argued that IO has dealt with the case property in a very casual manner and such act of the investigating officer amounts to gross misconduct in tempering with the case property. So the version of the prosecution about the recovery of the revolver and the cartridges cannot be believed.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 37 of 57
44. The major contradiction is qua the number of cartridges found in revolver (Ex.P1). This gathers significance because both the accused have been charged with the commission of offence punishable u/s 307 IPC and previous enmity between accused Praveen Yadav and complainant/PW3 is established on record. The evidence brought by the prosecution in such like cases has to be meticulously accurate. In case titled Mousam Singha Roy and Ors Vs State of West Bengal, Appeal (Crl.)231234/2004, DOD 21.08.2003, the court held that " It is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused".
45. In Sharad Birdhichand Sarda Vs State of Maharashtra, 1984 (4) SCC 116 it has been held that the well established rule of criminal justice is ' fouler the crime, higher the proof'.
46. As per the prosecution case, total number of cartridge recovered from revolver is one empty cartridge and five live cartridges found inside the grip of the revolver during FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 38 of 57 examination in the FSL. As per prosecution case, five live cartridges from laboratory stock were also sent by IO to FSL for test firing. PW11/ASI Rawat deposed that he found one empty cartridge inside the chamber of revolver when he checked the same. As per testimony of PW13, during examination of revolver four 7.65 mm cartridges and one .32 inch cartridge were found inside the grip of the revolver and he marked these cartridges as Ex.A1 to A5. As per PW13, he used two live cartridges from laboratory stock for test firing and exhibited the same as TC1 and TC2 and all the exhibits were resealed by him. When ASI Rawat Singh appeared in the witness box as PW11,pullanda was opened in the court and it was found contained one revolver, one empty cartridge and five live cartridges and he identified the same and stated that Ex. P1 is the same revolver which was handed over to him by Joginder, Ex.P2 is the same empty cartridge case which was found inside the revolver and five cartridges were the same cartridges which were sent by him to FSL for comparison.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 39 of 57
47. In his crossexamination, PW13 deposed that said five cartridges which were recovered from inside the grip of revolver during examination, were not mentioned in the FSL form. Volunteered as the same were noticed only by him during examination. He also deposed that five live cartridges of .32 inch without seal were also received meant for test firing which were taken in laboratory stock. As per testimony of PW13, the exhibits were resealed with the seal of PP FSL, Rohini and as per his testimony he marked following exhibits :
1. One revolver Ex.F1
2. .32 inch cartridges Ex. EC1
3. Four 7.65 MM cartridges Ex.A1 to Ex. A4
4. one .32 inch cartridges EX.A5.
5. Two test fired cartridges cases TC1 & TC2
48. If PW13 is to be believed then total number of cartridges should have been eight i.e one .32 inch empty cartridge (Ex. EC1),four 7.65 MM live cartridges (EX.A1 to EX. A4), one . 32 inch live cartridge (EX.A5),Two test fired cartridges cases FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 40 of 57 (Ex.TC1 and TC2) (exhibits are as per report of PW13), but surprisingly when during the examination of PW11/IO, pullanda was opened one revolver, one empty cartridge and five live cartridges were found contained therein. PW11 has identified these five live cartridges as the same cartridges which were sent to FSL for test firing, whereas as per testimony of PW13 test fired was conducted by using .32 inch cartridges from the laboratory stock and test fired cartridges were marked as TC1 and TC2 by PW13. If we assume the report of PW13 as correct that he used two cartridges from laboratory stock for conducting test firing and compared the same with empty cartridge (Ex.P2) then where are the said two empty cartridge cases stated to be used for test firing by PW13 and exhibited as TC1 and TC2 and resealed by him. In that case, the testimony of PW11 regarding the identification of five live cartridges as the same cartridges which were sent to FSL for test firing, also becomes doubtful. If PW11 is to be believed even then the prosecution has failed to produce the five live cartridges FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 41 of 57 stated to be found in the grip of revolver during examination in FSL and also the two empty cartridges stated to be used for test firing, which creates a serious doubt, on the report of FSL as well on the testimony of PW13. PW11 is not a layman but is rather a police official.
49. If we assume that PW11 has correctly identified those five live cartridges as the same live cartridges sent to FSL for test firing, even then the testimony of PW13 as well as his report is false to the extent that he used two live cartridges from laboratory stock for test firing and found four live cartridges 7.65 MM and one live cartridge.32 inch in the grip of revolver during examination, which creates a serious doubt on the report of FSL. As such prosecution has failed to produce the two test fired cartridges stated to be used for the comparison with empty cartridge (Ex.P2) recovered from revolver (Ex.P1) and five live cartridges stated to be found in the grip of revolver during examination in FSL, which were found missing while opening pullanda received from FSL and on the basis of which PW13 has formed his FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 42 of 57 opinion. These cartridges have not been produced by the prosecution, which creates a serious doubt on the recovery of revolver as well as one empty cartridge and five live cartridges. Interestingly, when FSL expert appeared in the witness box as PW13 neither the case property was put to the witness nor the case property was got identified by him. PW13 was the only natural witness who could have identified those five live cartridges stated to be found in the grip of revolver. Further, only PW13 could have explained about the two test fired cartridges (stated to be exhibited as TC1 and TC2 and resealed by PW13) which were found missing when the pullanda was opened in the court. It has been rightly argued by the ld. Counsel for the defence that recovery of revolver as well as recovery of one empty and five live cartridges are doubtful. The evidence of prosecution regarding the cartridges appears to be vague and scanty and it is not safe to convict accused Pradeep Yadav on the basis of this evidence. As such prosecution has failed to prove the recovery of revolver (Ex. P1) and empty cartridges FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 43 of 57 (Ex.P2) beyond reasonable doubt.
Role Assigned to accused persons.
50. As per testimony of PW3/complainant, accused Praveen Yadas asked his associate "Pakar Sale Ko" and by saying so accused Praveen Yadav took out one revolver and pointed the revolver towards PW3. It has been deposed by PW3 that then he caught hold the revolver which was in the right hand of accused Praveen Yadav and at that time accused Gaurav Yadav, the associate of accused Praveen Yadav also asked him to fire a bullet on PW3.
51.PW4, who is eye witness of the incident, has not supported the said testimony of PW3 and he did not say anything about the fact that accused Gaurav asked accused Praveen Yadav to fire a bullet on PW3. However PW6, who is also one of the eye witnesses to the incident, has deposed that accused Gaurav Yadav asked accused Praveen Yadav to fire a bullet and as such accused Praveen Yadav fired a bullet, but the fire went in the air as PW3 had lifted the hand of accused Praveen Yadav upwards.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 44 of 57
52.Though, PW3 and PW6 have testified that accused Gaurav Yadav has exhorted to kill PW3, but there does not appear to be a reason for accused Gaurav Yadav to exhort since PW3 has nowhere deposed that accused Gaurav Yadav had any enmity with him. PW4 is also silent about the said exhortation.
53. It is settled proposition of law that the evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to actual assailants, by attributing to that person an exhortation to the assailants to assault the victim. Unless the evidence in that respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. Reliance can be placed on the judgment of the Hon'ble Supreme Court Jainul Haque Vs State of Bihar, 1974 (3) SCC 543.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 45 of 57
54. In view of the law laid down by the Hon'ble Supreme Court and considering that the recovery of revolver is not proved and accused Gaurav Yadav has no previous enmity with PW3 or any motive, it appears that he has been implicated only because he was present alongwith accused Praveen Yadav at the place of occurrence.
55. Now coming to the role assigned to the accused Praveen Yadav, who is the main accused in the present case. In his testimony, PW3 deposed that on 24.06.2011 when he had gone to attend the marriage of daughter of his friend namely Hans Raj, accused Praveen Yadav alongwith his associate came towards him and said "tu mere khilaaf court mein 307 ke mukdeme main gawahi nahi dega wa mere is case mein kaafi kharch ho chuka hai aur aaj tera kaam tamam kar deta hu". Thereafter Parveen Yadav asked his associate "pakad sale ko" and by saying so Parveen Yadav took out one revolver from the left side dub of his pant and pointed the revolver towards him. PW3 further deposed that, he immediately caught hold the revolver which was in the right FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 46 of 57 hand of Praveen Yadav. Then Praveen Yadav had open fired towards him, which was passed over his left shoulder. PW3 further deposed that when he tried to snatch the revolver from the hands of accused Praveen Yadav, he gave teeth bite to him on the wrist of his right hand but he snatched the revolver from his hands.
56. PW4 has deposed that accused Praveen Yadav pointed revolver towards PW3 and fired the shot, but PW3 had a narrow escape from it. Accused Praveen Yadav gave a teeth bite on the wrist of PW3. PW6 has also deposed that accused Praveen Yadav aimed the revolver towards PW3 and fired a bullet, but the bullet went in the air as PW3 had lifted the hands of accused Praveen Yadav upwards and accused Praveen Yadav gave a teeth bite to PW3 on his right hand. The teeth bite to PW3 further stands corroborated by MLC Ex.PW1/A, which was proved by PW 1/Dr. Lakhwinder Kaur.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 47 of 57 INJURY TO COMPLAINANT/PW3 AND ACCUSED PARVEEN YADAV.
57. In the present case, PW3 has clearly stated that it was accused Praveen Yadav, who gave teeth bite on the wrist of his right hand. The identification of accused Praveen Yadav is not in dispute. PW 4 has also corroborated the testimony of PW 3 regarding teeth bite by accused Parveen Yadav saying that accused Parveen Yadav gave a teeth bite on the wrist of Joginder/PW3. The teeth bite further stands corroborated by the testimony of PW 6 who deposed that accused Parveen gave a teeth bite to PW3 on his right hand.
58. The injury stated to be inflicted to PW3 further stands corroborated by MLC (Ex.PW 1/A )of PW3 who was examined by Dr.Fahad. MLC (Ex. PW 1/A) has been proved by Dr. Lakhwinder Kaur who appeared as PW 1 and deposed that Joginder Singh was examined by Dr. Fahad under her supervision as she was working as CMO on that day. She proved MLC as Ex.PW 1/A and deposed that on FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 48 of 57 examination human bite on right forearm (ventral aspect) was observed. The injury on the wrist of PW3 has been opined as simple in nature by Dr. Manoj Dhingra/PW5.
59. Ld.Counsel for accused Parveen Yadav has laid much stress on the point that accused Praveen Yadav was accosted by the complainant and his associates when he came out of the marriage pandal i.e. Tammana Vatika. As a result of assault given by the complainant and his associates accused Praveen Yadav sustained injuries and these injuries stand proved vide MLC Ex.PW1/B. It is has been also argued that it was PW3 and his associates (PW4 & PW6) who inflicted injuries to accused Praveen Yadav and attacked/fired at accused Praveen Yadav and accused Praveen Yadav has not inflicted any injury to PW3. It has also been argued that the version of prosecution that public had inflicted injuries to accused Praveen Yadav is not reliable as no public witness has been examined by the prosecution to prove that public had inflicted the injuries to accused Praveen Yadav.
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 49 of 57
60. As far as injury to accused Parveen Yadav is concerned, PW 1 has also proved MLC of accused Parveen Yadav and deposed that on the same day, she had examined patient Parveen Yadav and on examination she had observed following injuries on his person.
I. CLW 3 cm x 1 x.5 cm just above right ear.
ii. Abrasion present on right eyebrow.
Iii. Abrasion present on nasal bridge.
iv. Abrasion and mucosal injury on lower lip.
61. As per testimony of PW 3, on hearing the sound of firing, public persons gathered there at which public persons gave beatings to accused Parveen Yadav. The testimony of PW 3 has been corroborated by both the eye witnesses PW 4 and PW 6. The accused Parveen Yadav has come with the defence that he was beaten up by complainant PW 3 and his associates. He further deposed that PW 3 hit accused Parveen Yadav with the butt of revolver and thereafter fired one bullet in the air. In his defence accused Parveen Yadav has examined two witnesses. Accused Parveen Yadav has FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 50 of 57 examined one Jagdish as DW 1 who deposed that one of the associates of PW 3 hit a stone on the face of accused Parveen Yadav.. Gaurav Yadav who appeared as DW 2 has deposed that five persons including Bunty, Parvesh and Monu gave beatings to Parveen Yadav and fired a bullet towards accused Parveen Yadav. However, in his cross examination he deposed that he did not see accused Parveen Yadav running or being chased by anyone. It seems that he is not a eye witness to the incident. Accused Parveen Yadav himself appeared in the witness box as DW 3 and deposed that complainant PW 3 have fired towards him and he hit him on his right temple with the butt of pistol causing him injuries. He further deposed that PW Sandeep Rana had lifted a piece of stone from the road and hit him first on the right eyelid and then on his nasal bone causing injuries. There are contradictions in the testimonies of these defence witnesses, however, it is settled preposition of law that prosecution has to prove its case beyond any shadow of reasonable doubts and they cannot take the advantage of FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 51 of 57 weakness of defence.
62. Perusal of crossexamination of PW11/IO reveals that it was admitted by accused Praveen Yadav that public had inflicted injuries to him by way of giving suggestion to PW11 that it is correct that public persons who had gathered there after the incident, gave beatings to him, prior to his escape from the spot. As such it has been admitted on behalf of accused Praveen Yadav that public has inflicted injuries to him.
63. It has been proved on record that it was accused Praveen Yadav, who had given teeth bite on the wrist of right hand of PW3 and I do not find any force in the contention of ld. Counsel for accused Praveen Yadav.
64. So having held that it was accused Praveen Yadav, who inflicted injury to PW3, it is now required to be seen whether the offence u/s 307IPC is made out against the accused Praveen Yadav.
The section 307 IPC reads as under : "Whoever does any act with such intention FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 52 of 57 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 shall be liable either to {imprisonment of life}, or to such punishment as is herein before mentioned".
65. What the court has to see is whether the act was done with the intention or knowledge and under circumstances mentioned in the section. The offence of attempt to murder is a very serious offence because it is not very different from the offence of murder itself. The only difference between the two offences is the death of the victim which is not present under section 307 IPC.
The main ingredients under section 307 IPC are:
a. The act attempted should be of such a nature that if not prevented or intercepted, it would lead to the death of the victim.
b. The intention or mens rea to kill is need to be proved clearly without doubt, for this purpose the prosecution FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 53 of 57 can make use of the circumstances like attack by dangerous weapons on vital parts of the body however the intention to kill cannot be gauged simple by the seriousness of the injury caused.
c. The intention and the knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under section 307 IPC.
66. The question of intention to kill or the knowledge of the death in terms of section 307 IPC is a question of fact and not of law and it would depend on the facts of the given case. As such, the intention and knowledge are the matters of inference from totality of facts and circumstances of a case. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. The evidence of the doctor is also given importance.
67. Before the court can hold that the act committed by the accused amounts to attempt to murder or attempt to commit FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 54 of 57 to culpable homicide, it should be satisfied that the act was committed with such intention or knowledge under such circumstances that if it had caused death, it would have amounted, in one case, to murder and in another case, to culpable homicide not amounting to murder.
68. In the present case, as already discussed, prosecution has failed to prove the recovery of revolver as well as cartridges and prosecution has been able to prove only teeth bite on the wrist of right hand of PW3 and that has been opined by doctor as simple in nature.
69. So in the absence of proof of use of any weapon and any grievous injury, it cannot be inferred from the given facts and circumstances that accused Praveen Yadav had intention to kill PW3. Further the prosecution has not brought any evidence on record to suggest that the injury caused was so imminently dangerous that in all probabilities it could cause death. The teeth bite on the wrist of right hand of PW3 has been opined by PW 5 as simple in nature. The evidence available on record does not point out any such injury which FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 55 of 57 was so grievous as to constitute 'knowledge' in the mind of accused Parveen Yadav that by infliction of such injuries accused was likely to cause the death of PW3. Hence, it remains simplicitor an offence of 'voluntarily causing hurt' as defined u/sec. 321 IPC and punishable u/sec. 324 IPC. An injury caused by teeth bite may qualify as hurt caused by means of an instrument for cutting for the purpose of section 324 IPC. Thus, the section 324 IPC would be attracted in the facts and circumstances of the present case. The Section 324 IPC reads as follows: "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both ".
FIR No. 153/11, State Vs. Gaurav Yadav etc. Case No. 51815/16 Page No. 56 of 57 Conclusion :
70. In view of above facts and circumstances and by virtue of section 222(2) Cr.P.C, the accused Praveen Yadav is held guilty for the offence punishable u/s 324 IPC and convicted accordingly.
71. The offences u/s 25 & 27 of Arms Act against accused Praveen Yadav could not be proved by the prosecution beyond reasonable doubts for the aforesaid reasons and he is acquitted for the offences u/s 25 & 27 of Arms Act.
72. As already discussed, prosecution has failed to prove guilt of accused Gaurav Yadav beyond reasonable doubts, so accused Gaurav Yadav is acquitted for the offence u/s 307 IPC read with 34 IPC.
73. Accordingly, both the accused persons are directed to furnish the bail bonds in compliance of section 437A Cr.P.C.
Announced in the open court
on 28th August, 2018 (Raj Rani)
Addl. Sessions Judge04 (N/W)
Rohini Courts, Delhi
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