Delhi District Court
State vs . Himanshu @ Happy on 30 October, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 376/12 U/s : 336/506 IPC & 27/54/59 Arms Act P.S. : Bindapur State Vs. Himanshu @ Happy JUDGMENT:
a) Sl. No. of the Case : 81/8, New No. 425125/16
b) Name & address of the : Smt. Kirti complainant. W/o Sh. Dharambir R/o RZ-31B, Prajapat Colony, Bindapur, New Delhi.
c) Name & address of : Himanshu @ Happy
accused S/o Sh. Sukhbir Yadav
R/o RZ-38, New Uttam Nagar,
Manas Kunj Road, Uttam Nagar,
New Delhi.
d) Date of Commission of : 27.11.2012
offence
e) Offence complained off : U/s 336/506 IPC & 27/54/59 Arms Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted u/s 27/54/59 Arms Act & 336 IPC Convicted u/s 506 Part II IPC h) Date of such order : 30.10.2018 FIR No: 376/12 state v. himanshu yadav Page No.1/10 Date of Institution : 26.11.2015 Final arguments heard on : 22.10.2018 Judgment Pronounced on : 30.10.2018
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 27.11.2012 at 12:10 am night in front of House No. RZ-
31B, Prajapati Colony, Bindapur, Delhi, accused Himanshu along with Rahul and one unknown person (both since not arrested) were in possession of desi Katta and two fired rounds and fired the same in air in order to threaten the complainant Smt. Keerti Devi and thereafter threatened the complainant after firing in the air. Police recorded statement of complainant Smt. Keerti Devi on the basis of which, present FIR was registered against the accused and investigation was carried out.
2. After investigation, challan for offence U/s 336/506 IPC and 27/54/59 Arms Act was filed. Compliance of Section 207 Cr.P.C was done.
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3. Charge for committing the offence punishable under Section 336/506 IPC and under Section 27/54/59 Arms Act was framed against the accused on 31.05.2016, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as eight witnesses.
5. PW1 Smt. Kirti Devi is the complainant. She deposed that on the night of 27.11.2012, she was sleeping at her home and her son Lalit had gone to attend a marriage. At about 12.00-00.15 Midnight, she woke up upon hearing loud noises coming in her house from the outside. There were many persons and they were using filthy language and shouting that "Lalit Ko Nikalo, Hum Use Jinda Nahi Chodege". Accused Happy was also shouting that I am 'Happy'. PW1 looked outside through FIR No: 376/12 state v. himanshu yadav Page No.3/10 her window and saw accused person namely Happy present along with some other boys. Accused persons also fired outside her house. She did not open the main gate of her house. They initially contacted their son Lalit on his mobile phone and informed him about the incident. Thereafter they made a PCR Call. They had got terrified on happening of the said incident and hearing the threats of the accused person. Police officials came at the spot. PW1 made statement to the police Ex.PW1/A. Police officials prepared site plan Ex.PW1/B. Police officials seized the two used bullets Ex. P1 and P2 vide seizure memo Ex. PW1/C.
6. PW2 HC Laxman joined the investigation with IO/PW8 ASI Vishal. On the intervening night of 26/27.11.2012, on receipt of DD No.7B, PW8 along with Ct. Laxman/PW2 went to the spot i.e. RZ-31B, Prajapati Colony, Bindapur where lot of public persons gathered at the spot including SHO concerned and ACP concerned and crime FIR No: 376/12 state v. himanshu yadav Page No.4/10 team. Complainant Kirti was also found present there. PW8 recorded her statement and prepared rukka Ex. PW2/A and got the FIR registered through Ct. Laxman who came back at the spot and handed over copy of FIR and original rukka to PW8. At the spot, PW8 found two fired cartridges and he prepared sketch of the same on white paper Ex PW2/B and seized them vide Ex. PW1/C. PW8 also prepared site plan Ex. PW1/B at the instance of complainant. On 25.03.2013, accused Himanshu himself came to PS Bindapur where he was arrested vide Ex. PW5/A, his personal search was conducted vide Ex. PW5/B and his disclosure statement was recorded vide Ex. PW8/X. Thereafter, PW8 prepared pointing out memo Ex. PW5/C at the instance of accused. PW8 also proved the case property Ex. P-1 and P-2. Photographs of spot are Ex. PW3/A (Colly).
7. PW3 Ct. Anil Kumar took photographs of the cartridges and the spot Ex. PW3/A(Colly) and Ex. FIR No: 376/12 state v. himanshu yadav Page No.5/10 PW3/B(Colly).
8. PW4 Retd SI Shamsher Singh is the Duty Officer who recorded the present FIR Ex. PW4/A and made endorsement Ex. PW4/B.
9. PW5 HC Jai Bhagwan joined the investigation with IO. He witnessed the arrest memo and personal search memo of accused and also witnessed the pointing out memo Ex. PW5/A to Ex. PW5/C respectively.
10. PW6 ASI Leela Ram filed the charge sheet before the Court after completion of investigation.
11. PW7 Ct. Jasbir recorded DD No.7B Ex. PW7/A regarding firing outside the house of caller.
12. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C FIR No: 376/12 state v. himanshu yadav Page No.6/10 and his explanation was recorded, wherein he denied all the incriminating evidence against him.
Accused stated that he has not given any threat to anyone. Before this case, there was a case registered between son of complainant and his cousin. Present case was got registered by the complainant just as a counter blast to that case. There are many criminal cases against the son of complainant.
13. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
14. In the present case, accused has been charged on two counts, i.e., under section 27/54/59 Arms Act and 336 IPC and secondly for the offence under section 506 IPC.
15. PW1 Smt. Kriti Devi has deposed in consonance with FIR No: 376/12 state v. himanshu yadav Page No.7/10 her initial complaint Ex. PW1/A. She has categorically deposed that accused threatened her that he will not leave her son Lalit alive, either he should be produced. So far as charge for the offence under section 27/54/59 Arms Act and under section 336 IPC are concerned, it is seen that during investigation, the IO concerned has not filled in FSL Form nor sent the fired cartridges to the FSL for analysis.
14. IO ASI Vishal has been examined by the prosecution as PW8. In his cross examination, the IO has admitted that it is correct that he did not fill any FSL form. As a practice and procedure, it is incombant on the IO to send the case property seized under Arms Act to FSL for necessary report. The revolver/pistol from which the case property i.e. cartridges have been fired, has not been seized/not recovered. Therefore, so far as the charge for the offence under section 27/54/59 Arms Act read with FIR No: 376/12 state v. himanshu yadav Page No.8/10 Section 336 IPC is concerned, this Court has no hestiation to hold that prosecution has not been able to prove the said charges. Therefore, the accused stands acquitted for the offences under section 27/54/59 Arms Act read with Section 336 IPC.
15. Now coming to the charge for the offence under section 506 IPC, it is seen that PW1 Smt. Kirti Devi has deposed in her examination in chief that on the night of 27.11.2012 at about 12.00-00.15 midnight, she woke up upon hearing loud noises coming in her house from the outside. There were many persons and they were using filthy language and shouting that "Lalit Ko Nikalo, Hum Use Jinda Nahi Chodege". Accused Happy was also shouting that he was 'Happy'. She looked outside through her window and saw accused person namely Happy present in the Court, (correctly identified by her) along with some other boys.
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16. PW1 has been cross examined by Ld. counsel for the accused, but I find that for the offence punishable under section 506 IPC Part II, no cross examination has been done on behalf of accused at all. Even no suggestion has been given that accused had not criminally intimidated PW1 that they would kill son of the complainant in case he is not sent outside the house. Therefore, since the allegations of the complainant for the offence under section 506 Part II IPC stands unrebutted and uncontroverted in her cross examination, it is held that prosecution has been able to prove its case against the accused for the offence under section 506 Part II IPC. The accused is accordingly held guilty for the said offence. Digitally signed by KISHOR
KISHOR KUMAR
KUMAR Date:
2018.11.02
12:47:39 +0530
Dictated & Announced in Open Court (Kishor Kumar)
On the 30th day of October, 2018 MM-03/South-West/Delhi
30.10.2018
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