Delhi District Court
State. vs . Jai Bhagwan S/O. Bharat Singh @ Bhartu on 4 April, 2007
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IN THE COURT OF SH. NAROTTAM KAUSHAL:
ADDITIONAL SESSIONS JUDGE; ROHINI COURTS;
DELHI.
State. vs. Jai Bhagwan S/o. Bharat Singh @ Bhartu
R/o. Village - Auchandi, Delhi.
Sessions case No 299/06.
FIR No. 292/03.
U/s. 307/452 IPC & 25/27/54/59 Arms Act.
Police Station: BAWANA.
JUDGMENT
1. Accused Jai Bhagwan has been chargesheeted by the PS- Bawana to face trial for offence punishable under section 307/452 and 27 Arms Act.
2. As per the prosecution story, on 18.9.2003 DD No.8A and 10A were received and ASI Ved Pal alongwith Ct. Mandeep reached Village - Auchandi, where injured persons were stated to have been taken to Maharshi Balmiki Hospital. At the hospital injured Roshan and injured Pawan Kumar were found admitted with 2 alleged history of firearm injury. Statement of injured Pawan Kumar was recorded wherein he stated that on 18.9.2003 at about 9 am he was leaving his house to visit village- Kharkhoda. He reached near Balmiki Chowk, where accused Jai Bhagwan came and took out a country made firearm and opened fire. The bullet hit the palm of the left hand and existed through the finger. Complainant raised alarm and ran back. On the way he entered the house of Roshan and bolted the door from the inside. Accused Jai Bhagwan also followed him. Roshan objected to the Jai Bhagwan entering his house and refused to open the door. On this accused opened fire on Roshan as well and he received injuries on his right shoulder and on the face. It is further stated in the complaint that Jai Bhagwan was enemical towards the complainant, as complainant had faced a trial for committing rape upon the sister in law of the accused. Complainant had been acquitted in the said trail.
3. On the complaint abovesaid and on the basis of MLCs, FIR under section 307/452 IPC and 25/27/54/59 of the Arms Act was 3 registered. During investigation accused was arrested who got recovered the firearm alongwith one live cartridge. Sanction under section 39 Arms Act was sought. Fired cartridges as well as the firearm were got examined at the FSL. Challan against the accused was filed.
4. After complying with the provisions of section 207 Cr.P.C. learned MM committed the case to the court of Sessions which in turn was assigned to the predecessor of this court.
5. Vide order dated 4.3.2004 charge under section 307 IPC was framed by my learned Predecessor against the accused. He pleaded not guilty and claimed trial. Prosecution in support of its case examined eight witnesses. Prosecution evidence was closed. The evidence that had come up before the Court was put to him and he sought opportunity to lead defence evidence and examined one Vijender Singh as DW1.
6. Complainant Pawan Kumar was examined as PW1. He has 4 deposed that on 18.9.2003 at about 9:30 am he was going to Kharkhoda and when he reached the road crossing, he saw the accused who was going towards his house. He turned back and fired on the witness. The bullet hit him on the left palm and existed through the finger. He ran back towards his house and on the way he found the door of Roshan's house open and entered the same. He shut the door from the inside. The accused climbed the roof of the Roshan's house. Roshan tried to persuade the accused but accused fired at Roshan's house and then left. They were taken to the hospital where his statement was recorded. Accused was arrested about 1 ½ hours later and revolver was recovered. He identified the revolver. On being cross examined he stated that a Panchayat was held in the village on the allegations that he had committed rape upon wife of Karambir. He further stated that accused was arrested in his presence on the same day at about 1:30 pm when he was sitting on a culvert. He did not remember if he had stated during the examination in chief that accused has been arrested within 1 ½ hours of the occurrence. He had not seen the accused firing at the Roshan, but the pellets had hit the face of the 5 Roshan. He did not know the number of injuries sustained by Roshan.
Roshan has been examined as PW3, he has deposed that on 18.9.2003 at about 9:30 am, Pawan entered his house in an injured condition and closed the door from the inside. Witness was sitting outside his house. Accused came chasing Pawan and he knocked at the door but Pawan did not come out. Accused then fired at him and he sustained injuries on the upper part of his back and became unconscious. His face was disfigured. On being cross examined, he deposed that accused fired at him from a distance of about 7-8 feet and was in the street when he fired at him. Many other persons were running after the accused, and he had fired in their presence. He named certain persons who were present.
7. ASI Somna (PW2) was the Duty Officer. She proved recording of DD NO.8A, 10A and the FIR. HC Dharambir Singh (PW5) proved the sanction under section 39 of Arms Act as Ex.PW5/A. Puneet Puri (PW8) Senior Scientific Assistant, FSL, Rohini, Delhi proved his report Ex.PW8/A. As per his opinion, the test bullets 6 and the recovered bullets were fired from same firearm, Ex.F1.
8. Ct. Mandeep (PW6) and ASI Ved Pal (PW7) are main witnesses to the investigation. ASI Ved Pal (PW7) is the IO of the case. They had both reached village - Auchandi on receipt of DD NO.8A. Injured had already been taken to the hospital. They both went to the hospital and statement of Pawan was recorded. On the basis whereof rukka Ex.PW7/A was prepared and Ct. Mandeep (PW6) carried the same to the PS for registration of FIR. IO prepared the site plan and recovered a fired bullet from the spot. Accused was arrested at the instance of complainant. His personal search was conducted, disclosure statement was recorded and he was arrested. During his search a Pistol was recovered, which was found to contain one live cartridge. On being cross examined the witness contradicted each other as regards mode of transportation. Both the witnesses admitted presence of other villagers at the spot. ASI Ved Pal (PW7), IO has deposed that they declined to give their address. Whereas Ct. Mandeep Singh (PW6), has deposed that IO did not record their statements.
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9. The sole defence witness Vijender (DW1) has deposed that on 18.9.2003, he heard some voices and saw that some persons had gathered and came to know that some quarrel had taken place with Pawan. In the evening he came to know that police had taken away Jai Bhagwan. He deposed that character of Pawan Kumar is not above board.
10.From the evidence as noticed above the statements of complainant Pawan (PW1) and Roshan (PW3) do seem to be at variance on certain aspects; but they corroborated each other on material aspect. PW1, Pawan has deposed that accused fired at the house of Roshan from the roof. Whereas Roshan (PW3) has deposed that accused had fired at him from the street. The contradictions in their testimony as regards spot from where accused had fired is explainable, in as much as they may be stating about two different aspects. It is like the proverbial blind men describing an elephant. Pawan (PW1) has also deposed that he did not see the accused firing at Roshan. Therefore, I do not see this to be a major 8 contradiction.
Roshan (PW3) has also deposed that he did not see the accused firing at Pawan. This also indicates that both the witnesses are not trying to exaggerate and interpolate. They had both deposed only as regards injury on their person having been caused by the accused. Had they been blindly supporting each other, they could have embellished the testimony of each other.
My finding as noticed above is supported by DD No.8A which records firing by the accused three times. In such circumstances, logically, the first fire was at the complainant; the other two fires could be, one on the house of the Roshan and the other on the person of Roshan.
11.Firearm used by the accused was recovered from him and identified by Pawan (PW1). FSL report establishes that this was the firearm which was used during the occurrence. The cartridges recovered from the spot was find to bear similar striations to the test fired cartridge. The FSL report Ex.PW8/A /Ex.PW7/C has been duly proved.
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12.Medical opinion on the nature of injuries proved by Dr. A.K. Gupta (PW4) opined the injuries to be simple in nature. On the MLC Ex.PW4/A & Ex.PW4/B, the doctor had given the opinion that injuries were "dangerous by intention". While being examined in the Court as PW4, he has deposed that the nature of injuries were simple. Though, there is no detailed explanation by the Doctor in his testimony as regards his opinion regarding 'intention' of the accused; yet, I am of the opinion, that he being an expert in the science of medicine, his opinion as regards intention of accused is absolutely unwarranted. His opinion given in Court regarding nature of injuries is valid and worthy of consideration.
Admittedly, the injury on person of Pawan is on his left hand which is not a vital portion of the body. Similarly, the injuries on the person of Roshan are on the shoulder and same pellets over the right side of his face. There were no repeated fire injuries. It cannot, therefore, be said that the intention of the accused was to cause a dangerous injury or to cause death.
13.The official witnesses have proved recording of FIR, Sanction 10 under section 39 Arms Act etc. The IO ASI Ved Pal (PW7) and Ct. Mandeep Singh (PW6) have proved the investigation of at the spot and the arrest of the accused. Though, both of these witnesses contradict each other as regards mode of transportation to reach the spot of arrest yet it cannot be said to be a major contradiction, so as to disbelieve their testimony.
14.The arguments of Sh. S.P. Dhankar, learned Defence Counsel that contradictions in the statements of witnesses make the prosecution case to be doubtful do not appeal to me. The testimony of DW1 Vijender also does not prove the innocence of the accused or does not in any manner disprove the prosecution case. The involvement of the complainant in a rape case wherein sister-in-law of the accused was the prosecutrix would also not help the defence. This would rather support the prosecution case, so as to establish a motive of the accused. The complainant already stood acquitted in the said rape case. There was no occasion for the complainant to falsely implicate present accused Jai Bhagwan, even if he was a witness in the said rape case.
15.I am, therefore, of the opinion, that the occurrence stands 11 established from the testimony of complainant Pawan (PW1) and the injured Roshan (PW3). The use of firearm, recovered from the accused also stands established from the FSL report. The testimony of eye witnesses are trustworthy and supportive of each other. The ocular, as well as, the medical evidence also corroborated each other. I, therefore, hold that accused fired at complainant Pawan and injured Roshan targeting not vital parts, causing simple injuries to them. The evidence to cause dangerous injury or to commit murder is not established as he has not caused repeated injuries or fired at vital parts of the body.
16.I, therefore, hold that the charge under section 307 IPC is not established. The accused has committed an offence punishable under section 324 IPC. I , therefore, hold him guilty for the offence punishable under section 324 IPC & accordingly convict him.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 03.04.2007 ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
12FIR NO.292/03.
PS-BAWANA.
03.04.2007.
Present: APP for the State.
Accused on bail with Sh. S.P. Dhankar, Advocate.
Vide separate judgment, accused is convicted for offence punishable under section 324 IPC.
To come up on 04.04.2007 for order on quantum of sentence.
(NAROTTAM KAUSHAL) ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
13IN THE COURT OF SH. NAROTTAM KAUSHAL:
ADDITIONAL SESSIONS JUDGE; ROHINI COURTS;
DELHI.
State. vs. Jai Bhagwan S/o. Bharat Singh @ Bhartu R/o. Village - Auchandi, Delhi. Sessions case No 299/06.
FIR No. 292/03.
U/s. 324 IPC Police Station: BAWANA.
ORDER ON SENTENCE Vide separate judgment dated 3.4.2007, accused Jai Bhagwan has been convicted for the offence punishable u/s 324 IPC.
2 Learned APP on behalf of the state submits that accused should be awarded the highest sentence, as he had fired at two persons.
3. Sh. S.P.Dhankar, Learned counsel for the accused has prayed for lenient approach. It is submitted that accused has 14 four minor children and is sole bread earner of his family. It is further submitted that complainant had committed rape upon the sister-in-law of accused.
Heard.
4. In the facts & circumstances when the convict has four minor children and is sole bread earner ; this court is inclined to take a lenient view. Convict is sentenced to undergo R.I. for a period two years and to pay a fine of Rs. 2000/- . In default of payment of fine, convict shall undergo S.I. for 15 days; for the offence punishable u /s 324 IPC. Ordered accordingly.
Copy of judgment and order on sentence be given to the convict free of costs.
(Narottam Kaushal) Addl.Sessions Judge, Rohini Courts, Delhi Announced in open court.
Dated: 4.4.2007 15 Sessions case No 299/06.
FIR No. 292/03.
U/s. 324 IPC Police Station: BAWANA.
4.4.07 Pr. APP for state.
Convict Jai Bhagwan in person with Sh.S.P.Dhankar, Adv.
Arguments on the point of sentence heard.
Vide separate order on sentence Convict is sentenced to undergo R.I. for a period two years and to pay a fine of Rs. 2000/- . In default of payment of fine, convict shall undergo S.I. For 15 days, u /s 324 IPC.
Copy of judgment and order on sentence be given to the convict free of costs.
At this stage, application u/s 389 Cr.P.C. has been moved seeking suspension of sentence to enable the convict to file appeal.
For the reasons stated, application is allowed. Convict is admitted to bail for a period of one month on his furnishing PB/SB of Rs. 10,000/- to enable him to file appeal before the Hon'ble High court.
(Narottam Kaushal) ASJ/Rohini Courts. Delhi Dt. 4.4.07