Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 25 January, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 59/1
Unique Identification No. 02404R0028002008
State
Versus
1. Raina Tejender Singh
S/o Sh. Jaimal Singh
R/o H.No. 116, Mukherjee Park,
Vishnu Garden, Delhi.
At Present: H.No. 30/31,
West Patel Nagar, Delhi.
FIR No. 1060/2000
PS - Rajouri Garden
U/s. 307 IPC &
U/s. 25/27 of Arms Act
Date of Decision: 23/01/2014
Date of order on sentence: 25/01/2014
ORDER ON SENTENCE
25/01/2014
Present. Ld. APP for the State assisted by counsel for complainant Sh. Umesh Kumar.
Injured Jogender Singh is also present.
Convict Raina Tejender Singh from J.C. with counsel Sh. Anupam Sharma.
Heard on the point of sentence.
Learned defence counsel has contended that convict Raina Tejender Singh is
aged about 43 years. He is having old aged mother, who is suffering from arthritis and is
bed ridden. He is unmarried. It is further contended that presently, accused in unemployed.
Earlier he was working as property dealer. It is further contended that convict has faced the
trial of this case since 2000 and has regularly appeared before the Court. He remained on
SC No. 59/1 1
bail during the trial and never misused the same. Learned defence counsel has further
contended that he is not a previous convict nor habitual offender. It is further contended that
accused remained in custody in this case from 08/12/2000 to 23/01/2001 and from 23/01/14
till today.
On the other hand, ld. APP assisted by counsel for complainant has contended
that convict is involved in case FIR No. 63/04 of Special Cell and FIR No. 275/08, PS Tilak
Nagar. Learned APP assisted by counsel for complainant has further contended that
appropriate sentence be awarded to convict.
I have considered the submissions of ld. APP and learned defence counsel for
the convict. The prosecution has been able to prove offences u/s. 307 of IPC, u/s. 25 of
Arms Act and u/s. 27 of Arms Act against the accused.
Offence U/s. 307 of IPC is punishable with imprisonment of either description
for a term which may extend to 10 years, and shall also be liable to fine and if hurt is caused,
then the same is punishable with imprisonment for life or to such punishment as is
hereinbefore mentioned.
Offence u/s. 25 of Arms Act is 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.
Offence u/s. 27 of Arms Act is 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.
I have considered the submissions and age, character and antecedents of the
convict. So, considering the above facts and circumstances, sentence of three years simple
imprisonment is imposed upon the convict U/s. 307 of IPC with fine of Rs. 5,000/. In
default of payment of fine, he shall further undergo simple imprisonment for six months.
Sentence of three years simple imprisonment is also imposed upon the convict
U/s. 25 of Arms Act with fine of Rs. 5,000/. In default of payment of fine, he shall further
undergo simple imprisonment for six months.
Sentence of three years simple imprisonment is also imposed upon the convict
U/s. 27 of Arms Act with fine of Rs.5,000 /. In default of payment of fine, he shall further
SC No. 59/1 2
undergo simple imprisonment for six months.
On the point of compensation, it is contended by learned defence counsel that
convict has to maintain his aged mother and presently, he is unemployed, so considering his
liabilities and earning capacity, minimum compensation be awarded.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
SC No. 59/1 3
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
In view of above, on account of physical or mental harm, including pain,
suffering and emotional distress alongwith cost required for medicines and medical services
caused to injured Jogender Singh and considering the financial position of the convict, a
compensation of Rs. 45,000/ is imposed upon the convict in favour of injured Jogender
Singh. In default of payment of compensation, convict shall undergo six months simple
imprisonment.
All the substantive sentences shall run concurrently.
Compensation, if deposited and no appeal is preferred within the period of
limitation, then the same be released to the injured.
Benefit of Section 428 of Cr.P.C. be given to the convict.
Fine and compensation not deposited.
Convict is remanded to J.C. to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 25th of January, 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 59/1 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 59/1
Unique Identification No. 02404R0028002008
State
Versus
1. Chasampal Singh @ Cheema
S/o Sh. Saudagar Singh
R/o A59, Tagore Garden Extension,
Delhi.
2. Dildar
S/o Sh. Isthfa
R/o A3/2, Sewak Park,
Uttam Nagar, Delhi.
3. Kashmir Singh
S/o Sh. Chanchal Singh
R/o 22, Ashok Park Extension,
Punjabi Bagh, Rohtak Road,
Delhi.
FIR No. 1060/2000
PS - Rajouri Garden
U/s. 201/34 of IPC
Date of Decision: 23/01/2014
Date of order on sentence: 25/01/2014
ORDER ON SENTENCE
25/01/2014
Present. Ld. APP for the State assisted by counsel for complainant Sh. Umesh Kumar.
Injured Jogender Singh is also present.
Convict Chasampal Singh in person with counsel Sh. R.P. Dhaniya.
Convicts Dildar and Kashmir Singh in person with counsel Sh. Baldev Raj.
SC No. 59/1 5
Heard on the point of sentence.
Learned defence counsel has contended that convict Chasampal Singh is aged
about 47 years. He is married, having three children to maintain. He is also having aged
mother of 90 years. It is further contended that accused is doing the work of battery and
inverter and is also doing the business of building construction. Learned defence counsel
has further contended that he is not a previous convict, but had some cases, which have been
disposed of. It is further contended that accused remained in custody in this case from
06/01/2011 to 21/02/2011.
Learned defence counsel has contended that convict Dildar is aged about 38
years. He is married, having four children to maintain. It is further contended that accused
is working as technician and is employed with accused Chasampal Singh. He is earning Rs.
15,000/ per month. Learned defence counsel has further contended that he is not a previous
convict, but had some cases, which are pending trial.
Learned defence counsel has contended that convict Kashmir Singh is aged
about 41 years. He is married, having one child, one unmarried sister to maintain. He is
also looking after his aged mother. It is further contended that accused is doing the work of
tour and travel and is earning Rs. 15,000/ per month. Learned defence counsel has further
contended that he is not a previous convict nor habitual offender.
On the other hand, ld. APP assisted by counsel for complainant with injured
Jogender Singh has contended that appropriate compensation and sentence be awarded
upon the convicts.
I have considered the submissions of ld. APP and respective learned defence
counsels for all the three convicts. The prosecution has been able to prove offences u/s.
201/34 of IPC against all the three accused.
Offence U/s. 201 of IPC is punishable with imprisonment for life or with
imprisonment, which may extend to ten years, shall be punished with imprisonment of either
description for a term which may extend to three years and shall also be liable to fine.
I have considered the submissions and age, character and antecedents of all the
three convicts. So, considering the above facts and circumstances, all the three convicts are
given benefit of probation of good conduct on their furnishing a personal bond in the sum of
SC No. 59/1 6
Rs. 25,000/ with one surety each in the like amount for a period of three years. In case of
default during the period of probation, each convict shall produce himself before the court
for acceptance of sentence.
On the point of compensation, it is contended by learned defence counsels that
each convict has to maintain his family, so considering their liabilities and earning capacity,
minimum compensation be awarded.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
SC No. 59/1 7
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
In view of above, on account of physical or mental harm, including pain,
suffering and emotional distress alongwith cost required for medicines and medical services
caused to injured Jogender Singh and considering the financial position of the convict, a
compensation of Rs. 15,000/ is imposed upon each convict in favour of injured Jogender
Singh. In default of payment of compensation, each convict shall undergo six months
simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of
limitation, then the same be released to the injured. It is stated by learned defence counsels
for all the three convicts, that convicts are not willing to challenge the order, hence,
compensation be released to the injured.
Compensation deposited and released to the injured Jogender Singh, who is
present in the court.
Announced in the open court (Virender Kumar Goyal)
today on 25th of January, 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 59/1 8
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 59/1
Unique Identification No. 02404R0028002008
State
Versus
1. Chasampal Singh @ Cheema
S/o Sh. Saudagar Singh
R/o A59, Tagore Garden Extension,
Delhi.
2. Raina Tejender Singh
S/o Sh. Jaimal Singh
R/o H.No. 116,
Mukherjee Park,
Vishnu Garden, Delhi.
At Present: H.No. 30/31,
West Patel Nagar, Delhi.
3. Virender Singh @ Pinchu
S/o Sh. Jaswant Singh
R/o T277, Baljeet Nagar,
Patel Nagar, Delhi
4. Dildar
S/o Sh. Isthfa
R/o A3/2, Sewak Park,
Uttam Nagar, Delhi.
5. Kashmir Singh
S/o Sh. Chanchal Singh
R/o 22, Ashok Park Extension,
Punjabi Bagh, Rohtak Road,
Delhi.
SC No. 59/1 9
6. Sanjeev Kumar Arora @ Sanju
S/o Sh. Jograj
R/o H.No. F95,
Vishnu Garden, Delhi. (since discharged vide order dated 22/11/2007)
FIR No. 1060/2000
PS - Rajouri Garden
U/s. 307/201/212/34 IPC & U/s. 120B IPC &
Date of institution of the case: 14/08/2002
Arguments heard on: 17/01/2014
Date of reservation of order: 17/01/2014
Date of Decision: 23/01/2014
JUDGMENT
This case was registered on the statement of Maninder Bopa Rai U/s. 307/34 IPC.
During investigation, complainant Maninder Bopa Rai also pointed out the place of occurrence, at which, rough site plan was prepared. From the place of occurrence, blood stained cemented floor and sample cemented floor were taken into possession. From the spot, one hawai chappal, one cap and one mobile phone were also taken into possession. Maruti Zen car was also taken into possession. Crime team report was obtained. Sealed pullanda handed over by the doctor of Khetrapal Nursing Home were also taken into possession. Photographs of the staircase of house of complainant were also taken and were seized in this case.
On 30/11/2000, accused Kashmir Singh and Dildar were arrested in this case. One Maruti Zen car No. DL6CD3662 was got recovered. Blood stained seat cover and car cover of the said Maruti zen car were also taken into possession. Duplicate photocopy of RC and insurance were also taken into possession. At the time of recovery of Maruti Zen car, remote control key of the car was also taken into possession from accused Dildar. Photographs of the Maruti Zen car were taken and SC No. 59/1 10 were seized in this case.
On 08/12/2000, accused Raina Tejender Singh and Virender @ Pinchu were arrested. Accused Raina Tejender Singh got recovered one mouser, which was found containing three live cartridges. Mouser and cartridges were taken into possession. Sketch of the mouser and live cartridges was prepared separately. Blood sample of accused Raina Tejender Singh was also obtained. Accused Raina Tejender Singh also got recovered one Maruti Esteem car No. DL1CG2586, which was taken into possession. Accused Virender @ Pinchu got recovered one Maruti Van No. DL4CE8390, which was taken into possession. RC of the same was also taken into possession. Medical history sheet of accused Raina Tejender Singh was also collected.
Personal searches of all these accused persons were conducted. Accused Kashmir Singh, Dildar and Raina Tejender Singh had also made disclosure statements. Accused Raina Tejender Singh also pointed out the place of occurrence.
During investigation, MLC of injured Joginder Singh was collected. Exhibits were sent to FSL. Reports were obtained. Sanction U/s. 39 of Arms Act was also obtained.
Accused Chasam Pal Singh and Sanjeev Kumar Arora @ Sanju were arrested on 09/02/2001 and on completion of investigation, chargesheet was filed against all the accused persons U/s. 307/201/212/34 IPC and U/s. 120B IPC.
Case was committed to the Court of Session on 13/10/2003 and was received on 20/10/2003.
Vide order dated 22/11/2007, accused Sanjeev Kumar Arora @ Sanju was discharged in this case, whereas charge U/s. 307/34 IPC was framed against accused Raina Tejender Singh @ Teja and Chasam Pal Singh @ Cheema, charge U/s. 201/34 of IPC was framed against accused Kashmir Singh and Dildar and charge U/s. 212 IPC was framed against accused Virender Singh @ Pinchu, to which, the accused persons pleaded not guilty and claimed trial.
SC No. 59/1 11
To prove its case, prosecution has examined PW1 to PW16 in all. On completion of investigation of the prosecution, statements of all the accused persons were recorded. They have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
I have heard Ld. APP for the State, learned respective counsels for the accused persons and have gone through the evidence brought on record with material placed.
Finding qua offence U/s. 307/34 IPC & U/s. 25 and 27 of Arms Act:
Injured Joginder Singh has been examined in this case as PW1. He has stated that in the intervening night of 17/18.11.2000, he heard noise of knocking on the door of his house and Cheema was calling him by his nickname Bitta. He came downstair. His wife Maninder Kaur followed him. He opened the door and saw accused Tejender Singh @ Teja was standing alongwith accused Chasam Pal and Sanjeev Kumar @ Sanju was sitting in the car.
PW1 has further deposed that on seeing accused Tejender Singh @ Teja, he shocked as he was not having visiting terms with them as they had a quarrel 7/8 months prior to that day. Accused Tejender @ Teja and Chasam Pal Singh took him near the park. At that time, his wife also accompanied him. Accused Tejender @ Teja asked him that he had beaten him, so, he will kill him. Accused Tejender @ Teja took out a revolver from his right dub and fired on him. He received gun shot injury on his stomach. He fell down on the road and accused Tejender @ Teja and Chasam Pal @ Cheema started quarreling with each other. He heard sound of two gun shots.
PW1 Joginder Singh has further deposed that thereafter, accused Tejender Singh @ Teja fled away from the spot in a white colour Maruti Zen car bearing registration No. 3662. Accused Chasam Pal @ Cheema and Sanjeev @ Sanju (since discharged) ran towards the park. He reached at his house and his wife called his brother Rana Pratap Singh, who took him to Khetra Pal nursing home. His SC No. 59/1 12 statement was recorded by the police on 25/11/2000. Later on, after three months, accused Chasam Pal Singh @ Cheema and Sanjeev Kumar @ Sanju (since discharged) were arrested vide memos Ex. PW1/A and Ex. PW1/B and his statement was recorded by the IO.
PW1 Joginder Singh has identified the mouser pistol before the court as the same, with which, accused Tejender Singh @ Teja had made fire on him as Ex. P1 and has also identified the accused persons. He has also identified one pair of chappal as Ex. P6, his blood stained clothes i.e. Tshirt and banian as Ex. P7 collectively, one pajama as Ex. P1A and few pieces of cemented floor as Ex. P3.
PW7 Maninder Bopa Rai, who is wife of injured PW1 Joginder Singh, has stated that in the intervening night of 17/18.11.2000, she alongwith her husband and children was sleeping at first floor. At about 1.00 a.m. night, someone knocked the door. She heard that someone was saying that Cheema was calling her husband. They thought that there might be friend of her husband, so, her husband opened the door and went downstairs. She also followed him. She saw Cheema was standing outside the house, who took her husband over the side of the park. Accused Tejender Singh was also standing near the park. One more person Sanju (since discharged) was also there in a white Maruti Zen No. 3662 and was sitting in the same vehicle.
PW7 has further deposed that she was standing there. Her husband and accused Tejender exchanged hot words with each other and suddenly, accused Tejender took out a pistol and shot her husband. After sustaining shot, her husband fell down. She raised noise. Her husband got up and ran towards the stairs. Meanwhile, accused Tejender and Cheema also quarreled and scuffled with each other and accused Tejender fired twice. Thereafter, accused Sanju (since discharged) and accused Cheema ran towards the car. Accused Tejender fled away from the spot in white Maruti Zen, which was standing there.
PW7 has further deposed that thereafter, they removed her husband Joginder Singh i.e. PW1 in Khetrapal Nursing Home. Police came there and her SC No. 59/1 13 statement was recorded Ex. PW7/A. Thereafter, she alongwith her brother Sabi, SI Satish Kumar Yadav and one Constable Shamsher Singh reached at the spot and pointed out the place, where accused Tejender Singh had fired shot on her husband with his pistol. Site plan was prepared by the IO on her pointing. One pair of hawai chappal of her husband was also taken into possession from the spot and was seized vide memo Ex. PW7/B. One white cap of accused Tejender Singh was also taken into possession from the spot vide memo Ex. PW7/C. One mobile phone make Panasonic was also taken into possession from the spot of accused Tejender Singh and was seized vide memo Ex. PW7/D. PW7 has further deposed that blood stained portion of staircase and earth control of the staircase were taken into possession. These were sealed with the seal of "SKY" and were seized vide memos Ex. PW7/E and Ex. PW7/F. Her statement was recorded by the IO.
PW7 has identified the pistol of accused Tejender Singh, with which, he had fired at her husband, as Ex. P1, one pajama of her husband, which he was wearing at the time of incident, as Ex. P1A, earth control and blood stained portion of stairs as Ex. P3 and Ex. P3A, one pair of hawai chappal as Ex. P6one Tshirt and banian of her husband as Ex. P7 collectively and cap of accused Tejender Singh as Ex. P10.
Another witness is PW11 Rana Pratap Singh, who had removed PW1 Joginder Singh to Khetrapal Nursing home. He has stated that Joginder @ Bitta is his younger brother, who was living at C248, Tagore Garden Extension, Delhi, at a distance of 100 yards from his house. In the intervening night of 17.18/11/2000, at about 2.00 a.m. night, he got up for urinating. At that time, he heard sound of gun shot. He came out of the house. In the meanwhile, his bhabhi Maninder Bopa Rai i.e. PW7 came near his house and told that Teja had shot Bitta. Meanwhile, Bitta also came to his house and asked him to remove him to a hospital immediately. He took him on his two wheeler scooter to Khetrapal Nursing Home, Vishal Enclave and got SC No. 59/1 14 him admitted there. PW11 has also identified accused Teja before the court as known to him previously.
PW16 Sarabjeet Singh, brother of complainant Maninder Bopa Rai, has stated that on 18/11/2000, Mahenderjeet Kaur made a phone call in the night that "Joginder ko teja ne goli maar dee hai" and he came to know that his Jija (brother in law) had been admitted in Khetrapal Nursing Home, Vishal Enclave, Delhi. He reached there and met there with his sister Mahenderjeet Kaur and his brother in law Joginder Pal Singh was found admitted there. At that time, his sister told him that Teja @ Tejender Singh had opened fire on his brother in law Joginder Pal Singh and also told that Cheema and Sanju were also present there with Teja.
PW16 Sarabjeet Singh has further deposed that from the hospital, he alongwith his sister reached at C248, Tagore Garden Extension, New Delhi, where SI Satish Kumar, Ct Shamsher Singh alongwith other police staff also reached there. At that time, IO had also prepared pointing out memo of the place of occurrence at the instance of his sister, which was signed by him, Ex. PW12/C. PW16 has further deposed that at the spot, one head cap of white colour, having black stripe, on which, the monogram of "Adidas" was written. One pair of hawai chappal having white and blue colour was also lying near the roadside. At that time, his sister told that her husband was wearing the same at the time of occurrence. One mobile phone in working condition make Panasonic was also found lying in the park, situated near the spot. All these articles were taken into possession by the IO and he signed the seizure memos, which are Ex. PW7/C of cap, Ex. PW7/B of pair of hawai chappal and Ex. PW7/D of panasonic mobile phone.
PW16 has further deposed that after that, IO had prepared rough site plan of the place of occurrence on the pointing of his sister. Blood spots were found on the staircase going towards first floor of H.no. C248 and at that time, on seeing those blood spots, his sister had pointed out that after sustaining bullet injury, her husband had stopped for a while in the stairs. Blood was also observed near the side wall and SC No. 59/1 15 on the staircase. These were removed after breaking the cemented portion of both the places and earth control of both the places was also removed and were seized vide memos Ex. PW7/E and Ex. PW7/F. His statement was also recorded by the IO.
PW16 has also identified the cap as Ex.P10, pair of chappal as Ex. P6 collectively, mobile phone make Panasonic as Ex. P17, identity of which has not been disputed, earth control as Ex. P3 and blood stained pieces of stairs and side wall as Ex. P3A.
Learned defence counsel has further contended that PW1 Joginder Singh and PW7 Maninder Bopa Rai have contradicted each other as to firstly, who was seen after opening the door of the stairs, whether it was accused Chasam Pal Singh or Tejender Singh or both were there or PW1 Joginder Singh was taken away by accused Chasam Pal Singh towards the park, where accused Tejender Singh was present. So, the witnesses are not inspiring any confidence. It is further contended that according to PW1 Joginder Singh, after sustaining injuries, he fell down on the road but no blood stains were found on the road and were found on the stairs only. It is further contended that witnesses have also not corroborated each other regarding certain facts. PW1 Joginder Singh has stated that his wife called his brother. At that time, he was semi conscious. He had told at Khetra Pal Nursing Home that accused Tejender had fired on him. It is further contended that in the MLC Ex. PW2/A, it is mentioned that PW1 Joginder sustained gun shot and was brought by his brother Rana Pratap Singh but name of accused Tejender as assailant is not mentioned therein.
Learned defence counsel has further contended that after sustaining gun shot injury, PW1 Joginder fell down on the road and instead of calling help from the road, while his wife was also there, why he had gone back to his house and climbed the stairs. It is further contended that PW7 Maninder Bopa Rai has stated that they removed PW1 Joginder Singh in Khetra Pal Nursing Home and her husband himself sat on two wheeler scooter of her Jeth and was taken to Khetrapal Nursing Home. It SC No. 59/1 16 is further contended that DDU hospital was near in comparison to Khetra Pal Nursing Home and it is not explained as to why PW1 Joginder Singh was not taken to DDU hospital, which shows that they had manipulated the MLC and according to the cross examination of PW7 Maninder Bopa Rai, her husband was conscious, when he reached at Khetra Pal Nursing Home. According to PW1 Joginder Singh, his statement was recorded but the same has not been brought on record and later on, the same has been concealed by the IO and case was registered on the statement of PW7 Maninder Bopa Rai to falsely implicate the accused persons. It is further contended that PW11 Rana Pratap Singh has also stated in the cross examination that his brother was interrogated by the police and his statement was recorded. According to the deposition of PW11, PW1 Joginder reached his house and asked him to remove him to hospital immediately. He took him on a two wheeler scooter and got him admitted there.
In my view, the contradictions, as pointed out, are minor in this respect and are not material. Both PW1 Joginder Singh and PW7 Maninder Bopa Rai have categorically deposed in the examination in chief and also in the cross examination that PW1 Joginder was taken towards the park by accused Chasam Pal Singh, where accused Tejender Singh made a gun shot fire in his stomach. According to PW7 Maninder Bopa Rai, after sustaining injury, her husband sat in the stairs of the house, due to which, blood stains have appeared in the stairs. No bullet has been recovered and injury was through because according to the cross examination, gun shot fire was made by accused Tejender Singh from a distance of about four feet and PW7 Maninder Bopa Rai has stated that accused Tejender Singh had made a fire on her husband from a distance of 57 steps. This shows that accused Tejender Singh made fire on PW1 Joginder Singh from a close range, due to which, gun shot fire had gone through the body of PW1 Joginder Singh and bullet could not be recovered.
According to PW2 Dr. Vinod Khetrapal, who has proved MLC of PW1 Joginder Singh, he found wound of entry just above the umbilicus, four inches above, SC No. 59/1 17 slightly lateral to mid line and wound of exit L3, L4 level lateral to mid line left side and Joginder Singh had sustained grievous injuries. His MLC is Ex. PW2/A. In the cross examination, firstly, PW2 has stated that he cannot say whether injury sustained by PW1 Joginder Singh was gun shot or not, but thereafter, again in the cross examination, he has stated that he gave his opinion regarding the nature of injuries as grievous because it was gun shot injury on abdomen, although the vital parts of the abdomen were not involved. So, the contentions of learned defence counsel are not forceful in any manner.
Learned defence counsel has further contended that according to MLC of PW1 Joginder Singh Ex. PW2/A, he was unfit for statement, but it is neither signed by the doctor nor any time is mentioned as to at what time, he was unfit for statement. PW2 Dr. Vinod Khetrapal has stated in the cross examination that when the police came and asked him whether Joginder Singh was fit for statement, he told that he was not fit for statement because patient was in operation theater. So, merely that the patient was in operation theater does not mean that he was unfit for statement. In this respect, I am of the view that if injured was in operation theater, then his statement could not be recorded, hence, this argument is of no consequence.
First IO of the case is PW12 SI Satish Kumar. On receipt of DD No. 25A, he alongwith Constable Shamsher reached at Khetra Pal Nursing Home and found PW1 Joginder Singh admitted there, who was found unfit for statement, so, he recorded statement of his wife Maninder Bopa Rai Ex. PW7/A. She signed her statement and he prepared rukka Ex. PW12/A for registration of the case. He also conducted proceedings regarding recovery of some exhibits from the spot and handed over rukka to Constable Shamsher for getting registered the case. According to MLC of injured Joginder Singh Ex. PW2/A, his time of examination is 2.00 a.m. and PW12 SI Satish Kumar, according to his cross examination, had received copy of DD No. 25A at about 11 a.m. night, while he was already doing investigation of some other case, so he left that place and reached at Khetra Pal Nursing Home within 57 SC No. 59/1 18 minutes and had reached at the place of occurrence at about 12.45 a.m., which shows that atleast from 11.15 p.m. to 12.30 a.m. night, he remained in the hospital. According to PW1 Joginder Singh, who was conscious in the hospital, PW12 SI Satish Kumar, IO reached in the hospital. At that time, injured was in operation theater, so, doctor told the IO that he was unfit for statement. PW7 Maninder Bopa Rai was also present in the hospital and she has stated that police came in the nursing home and her statement was recorded, which is Ex. PW7/A. So, under such circumstances, it cannot be said that PW1 Joginder Singh was not unfit for statement and intentionally his statement was not recorded.
According to rukka Ex. PW12/A, it was sent at about 5.00 a.m. on 18/10/2000 from the place of occurrence. Statement of PW7 Maninder Bopa Rai was recorded in Khetra Pal Nursing Home, wherein she disclosed the manner, in which, the incident had taken place and also named the accused persons, hence, under such circumstances, it cannot be said that there was any delay in recording the statement of eye witness and further, statement was manipulated to falsely implicate the accused persons.
Learned defence counsel has further contended that none of the witness has deposed about any motive to cause injury to PW1 Joginder Singh, but it is not so. Reaching of accused persons in the night i.e. accused Tejender Singh and accused Chasam Pal Singh, itself shows that they wanted to talk with PW1 Joginder Singh on some issue. PW1 Joginder Singh has stated that accused Tejender Singh had asked him that he had beaten him , so, he will kill him. He took out a revolver from his right dub and fired on him. He received gun shot injury on his stomach. PW1 Joginder Singh has denied the suggestion that he had attacked accused Tejender Singh with Farsa. No evidence has been brought on record in this respect, although PW1 Joginder Singh has been confronted with his statement Ex. PW1/DA, where it is recorded that in the said quarrel, Tejender Singh sustained injuries on his face, but even then, the witness has denied the suggestion, then it was for the accused to prove SC No. 59/1 19 previous quarrel and even if we assume that such quarrel had taken place, in which, accused Tejender Singh had sustained injuries at the hands of PW1 Joginder Singh, then he was having a solid motive to kill/ to cause fatal injury to PW1 Joginder Singh and for that purpose, they reached at the house of PW1 Joginder Singh in the night.
From the depositions of the witnesses, what transpired is that accused persons wanted to talk with Joginder Singh on certain facts and accused Chasam Pal Singh knocked the door of the house and called PW1 Joginder Singh and took him towards the park, where accused Tejender Singh was present and after altercation, accused Tejender Singh took out a revolver and gave gun shot fire on the stomach of PW1 Joginder Singh.
Learned defence counsel for accused Chasam Pal has contended that no blood stains were found on the spot. No trail of blood was found going towards the stairs and no explanation has been given about the blood stains in the stairs. It is further contended that according to PW7 Maninder Bopa Rai, she assisted in lifting her husband from the road after sustaining injuries and she also assisted her husband, when he was taken to hospital by PW11 Rana Pratap Singh to hospital, but strangely, she did not sustain any blood spots on her clothes.
Learned defence counsel for accused Chasam Pal Singh has further contended that according to the deposition of PW1 Joginder Singh, after sustaining injuries by him of gun shot, accused Tejender Singh and Chasam Pal Singh started quarreling with each other. He heard sound of two gun shots. In the cross examination, he has stated that he was having cordial relations with accused Chasam Pal before the incident and that after sustaining injuries, he fell down, but he saw that accused Chasam Pal had chased accused Tejender @ Teja and something had happened in between them. He heard that accused Chasam Pal was asking from accused Tejender @ Teja as to why he had fired on Bitta i.e. PW1. Similarly, PW7 Maninder Bopa Rai has also stated that after altercation in between her husband and accused Tejender Singh, suddenly accused Tejender took out a pistol and shot at her SC No. 59/1 20 husband. Meanwhile, Tejender and Cheema also quarreled and scuffled with each other and accused Tejender fired twice.
Learned defence counsel for accused Chasam Pal has further contended that PW16 Sarabjeet Singh has also stated in the cross examination that his sister had told that accused Chasam Pal Singh had saved Joginder Singh and if Chasam Pal had not saved him, accused Tejender Singh might have fired second time on Joginder. It is further contended that in the cross examination, PW7 Maninder Bopa Rai has also stated that during that time, accused Chasam Pal asked accused Tejender Singh as to why he had made a fire on Joginder Singh. It is further contended that from the depositions of PW1 Joginder Singh and PW7 Maninder Bopa Rai, it is clear that accused Tejender Singh made a fire on PW1 Joginder Singh suddenly by taking out a revolver from his possession, which shows that neither accused Chasam Pal was having any knowledge that accused Tejender Singh was carrying a revolver nor there could not be any common intention to make a fire on PW1 Joginder Singh by accused Tejender Singh. Had it been so, then accused Chasam Pal had not quarreled with accused Tejender Singh and had not asked him as to why he had made fire on PW1 Joginder Singh.
From these facts and arguments, there could be two possibilities, firstly that, accused Chasam Pal was having knowledge that accused Tejender Singh was carrying a pistol, but he was not having any knowledge/apprehension that accused Tejender Singh would make a fire on PW1 Joginder Singh or secondly that, he was not having any knowledge about the pistol, which was in possession of accused Tejender Singh, so, in both circumstances, there could not be any common intention on the part of accused Chasam Pal Singh for the act of gun shot fire made by accused Tejender Singh on PW1 Joginder Singh at that time.
Identity of both the accused persons is not in dispute. Even otherwise, PW7 Maninder Bopa Rai has stated that there was light at the place of occurrence at that time. The Maruti car, in which, they had come at the spot i.e. DL6CD3662 was SC No. 59/1 21 belonging to accused Chasam Pal Singh, which has not been disputed. The cap has been identified by the witnesses belonging to accused Tejender Singh, for which, only suggestions have been given that the same has been planted one, but if it was so, then why only the cap was planted as other articles could have also been planted against Tejender Singh. The mobile phone, which was also taken into possession from the spot, was released later on to accused Chasam Pal Singh, which he failed to produce before the Court and identity of the mobile phone is also not disputed. The recovery of mobile phone and car, which were released on superdari to accused Chasam Pal Singh and later on, only car has been produced by some other owner after great difficulty, shows the presence of accused Chasam Pal Singh at the spot with accused Tejender Singh. The fact of recovery of mobile phone belonging to accused Chasam Pal Singh has not been rebutted in any manner.
According to FSL report proved by PW3 Sh. A.K. Srivastava, one pajama, one piece of gauze cloth having dark brown stains i.e. blood sample of injured Joginder Singh, few cemented floor pieces, one seat cover having dark brown stains, one seat cover and dark brown liquid i.e. blood sample of accused Tejender Singh have been examined. According to the report Ex. PW3/A, except one seat cover, blood was detected on all the exhibits and according to biological report Ex. PW3/B, human blood of "AB" group was found on pajama, gauze piece, floor pieces and seat cover. Blood group of accused Tejender Singh could not be ascertained as sample was putrefied.
Learned defence counsel has contended that it is not known how human blood of "AB" group came on the seat cover of Maruti Zen because PW1 Joginder Singh has nowhere stated that accused Tejender Singh or Chasam Pal Singh had stained with blood in any manner after causing injury or that he sat in the Maruti Zen car. PW1 Joginder Singh has stated that after the incident, accused Chasam Pal and Sanjeev ran towards the park. PW7 Maninder Bopa Rai, wife of injured, has also deposed that after the incident, accused Sanju and Chasam Pal ran towards the car SC No. 59/1 22 and accused Tejender Singh fled away in a white Maruti Zen, which was standing there. So, in all circumstances, human blood of "AB" group could not have been on the seat cover of Maruti Zen car, which shows that the same has been planted to connect the Maruti Zen car of accused Chasam Pal with the incident. Although, the contentions of learned defence counsel are forceful in this respect, but this single fact does not falsify the depositions of the witnesses regarding the incident and their presence at the spot.
Learned defence counsel has further contended that even opinion given by PW2 Dr. Vinod Khetrapal regarding nature of injuries as grievous is also false as he himself has admitted that he gave such opinion because it was gun shot injury on abdomen, although vital parts of the abdomen were not involved. It is further contended that injury sustained by PW1 Joginder Singh is not falling with the ambit of Section 307 of IPC, so, prosecution has not been able to prove beyond reasonable doubts that PW1 Joginder Singh had sustained grievous injuries in this incident.
Testimony of PW4 HC Karamvir, who had taken accused Tejender Singh for his blood sample to DDU hospital, is unrebutted and unshaken, which was seized vide memo Ex. PW4/A, as he has not been cross examined in any manner.
Learned defence counsel has also contended that deposition of PW5 Sh. K.C. Varshney, Assistant Director (FSL), Rohini, is also not inspiring any confidence as recovered pistol was not examined by him on the point as to whether it was used recently or there was tattooing on the wearing clothes of PW1 Joginder Singh. It is further contended that according to the deposition of PW1 Joginder Singh and PW7 Maninder Bopa Rai, accused Tejender Singh had made fire from a very close range, so, it must be present in the clothes, but he has not examined the clothes from this angle and a lame excuse has been given that it was not asked by the IO.
According to PW5 Sh. K.C. Varshney, he had examined holes marked H1 and H2 on Tshirt and vest respectively and these were found to be caused by a cupro jacketed bullet. So, after going through the cross examination of PW5, his SC No. 59/1 23 opinion cannot be disbelieved in any manner, but as the bullet could not be recovered, hence, it could not be examined as to whether the fire was made from the pistol recovered at the instance of accused Tejender Singh from his possession. PW5 has stated in the cross examination that it was not possible to compare the hole on the shirt examined by him with another hole made during the test fire conducted because of difference of material. So, in all, PW5 has been able to prove beyond reasonable doubts is that the hole marks H1 and H2 on the Tshirt and Vest of PW1 Joginder Singh were caused by a cupro jacketed bullet.
PW6 Constable Ramesh has removed the exhibits to FSL. Nothing came out from his cross examination to disbelieve his testimony.
PW14 ASI Rohtash was working as MHC(M) on 18/11/2000. Exhibits i.e. cap, one pair of hawai chappal and one mobile phone make Panasonic, one sealed pullanda containing blood cemented piece, another sealed pullanda containing blood stains collected from cemented stairs, another sealed pullanda containing blood stained Tshirt of PW1 Joginder Singh, another sealed pullanda containing blood stained pajama and one another sealed pullanda containing blood sample of Joginder alongwith one sample seal were deposited with him in sealed condition and he made entry in th is respect. On 30/11/2000, SI Naresh Kumar had deposited with him one sealed pullanda containing two blood stained seat cover, one another sealed pullanda containing car cover and one Maruti zen car No. DL6CD3662 alongwith one key, which he deposited in the malkhana by making entry. On 08/12/2000, SI Naresh Kumar had also deposited with him one sealed pullanda of mouser and three live cartridges and one Maruti Esteem Car No. DL1CG2586of white colour alongwith one Maruti Van No. DL4CE8390 alongwith personal search articles of accused Virender and Rana Tejender Singh, which he deposited in the malkhana by making relevant entry. On 09/12/2000, SI Naresh Kumar had also deposited with him one sealed pullanda containing blood sample of accused Raina Tejender Singh, which he deposited in the malkhana by making entry and has proved the copies of the same as SC No. 59/1 24 Ex. PW14/A and Ex. PW14/B. The pullandas with sample seal were also sent to FSL on 08/01/2002 and were again deposited with him on 08/02/2002 with result of FSL.
According to PW9 HC Joginder Singh, on 08/12/2000, he joined investigation of this case with SI Naresh. They reached at Vishal Cinema at about 9.30 a.m., SI Naresh received secret information that accused Tejender, who was wanted in this case, will come at H. No. 116, Mukherjee Park, Tilak Nagar in a Maruti Van bearing registration No. DL4CE8390. On receipt of this information, SI Naresh alongwith raiding party reached at H. No. 116, Mukherjee Park, Tilak Nagar. Constable Anil was also accompanying them. At about 10.15 a.m., one Maruti Van bearing registration No. DL4CE8390 came from the side of Vishnu Garden and at the instance of secret informer, SI Naresh gave signal to stop the Maruti Van. Driver of Maruti Van stopped the van. During interrogation, they came to know the name of driver as accused Virender @ Pinchu and the person sitting adjoining to the driver seat was accused Tejender @ Teja. Both the accused were arrested vide memos Ex. PW9/J and Ex. PW9/K. Their personal searches were conducted vide memos Ex. PW9/L and Ex. PW9/M. Accused Tejender also made disclosure statement Ex. PW9/N. PW9 HC Joginder Singh has further deposed that both the accused then led the police party to H.No. 116, Mukherjee Park, second floor i.e. house of accused Tejender, where accused Tejender got recovered one mouser from one room of his house, which was lying underneath a pillow on the bed. It was checked. Three live cartridges were found in the magazine of the mouser. Sketch of the mouser and cartridges were prepared Ex. PW9/O and Ex. PW9/P. The mouser was also measured. Body of the mouser was 6.3 c.m., butt was 8 c.m. and barrel was 13.6 c.m. Words "Ca; 30 mouser, made as China" were written on the barrel. There was sign of star on the butt of the mouser. The length of two cartridges was 3.4 c.m. each and the third round was having length of 2.7 c.m. These were sealed in a pullanda and were seized vide memo Ex. PW9/Q. SC No. 59/1 25 PW9 HC Joginder Singh has further deposed that thereafter, both the accused led the police party to Baljeet Nagar in T Block and accused Tejender pointed out white Esteem No. 2586, which was taken into possession vide memo Ex. PW9/R. Thereafter, both the accused led the police party to place of occurrence and pointed out the same vide memo Ex. PW9/S. Thereafter, both the accused were brought to PS Rajouri Garden and their medical examination was got conducted. Case property was deposited in the malkhana. PW9 has also identified the mouser as Ex. P1 and three cartridges as Ex. P8 i.e. two live cartridges and as Ex. P9 i.e. empty cartridge.
I have gone through the cross examination of PW9 and PW15. Nothing came out from their cross examination to disbelieve their depositions. Both have corroborated each other regarding arrest of accused RainaTejender Singh with accused Virender @ Pinchu and further that, disclosure statement of accused Tejender was recorded outside his house in furtherance of which, he got recovered one mouser from the room of his house along with three live cartridges. Nothing came out from their cross examination to disbelieve their testimonies in any manner.
Regarding the role of accused Tejender Singh @ Teja and his presence at the spot, learned defence counsel has contended that accused Tejender Singh @ Teja has been falsely implicated in this case as due to some injuries, he was unable to walk, hence, could not have reached at the spot. It is further contended that in this respect, Dr. M. M. Anand from Anand Nursing Home has been examined, who has deposed that on 18/11/2000, one patient Tejender Singh, R/o F277, Baljeet Nagar, New Delhi, was brought by his attendants. Initially, Tejender Singh was examined by Dr. Sobti, who is presently not working in their nursing home and his present whereabouts are not known. According to PW10 Dr. M.M. Anand, Dr. Sobti observed injuries on thigh muscles, which was sartorius, and vastus muscle, which was derided and sutured in layers. Patient was discharged on 19/11/2000. He had also examined patient Tejender Singh and prescribed medicines. Medical report of SC No. 59/1 26 Tejender Singh is Ex. PW10/A, which bears signatures of Dr. Sobti at point A and his signatures at point B. Thereafter, patient did not appear for removal of the stitches. After about few days or months, he received a call from the police and produced case history of patient Tejender Singh to the police in the PS, which was taken into possession vide memo Ex. PW10/B. Learned defence counsel has contended that incident occurred in the intervening night of 17/18.11.2000 and in the cross examination, PW10 Dr. M.M. Anand has admitted that accused Tejender Singh was having Necrosis on the part of left thigh, which takes minimum 24 hours and both skin and tissues were necrotic and the type of injury, which patient was having, it was difficult for him to move around. Tissues become necrotic in minimum 24 hours, however, the time may extend at any length. It is further contended that if the injury of accused Tejender Singh was having necrosis in skin and tissues, then he must have sustained injury 24 hours before i.e. on 17/11/2000 and in this respect, defence witness has been examined i.e. DW1 Harvinder Singh, who has stated that in the intervening night of 16/17.11.2000, he alongwith accused Tejender, was returning from a party. When they stopped to buy Pan from Khokha on main road, Patel Nagar, which was on the other side of the road, where they had stopped. Accused Tejender Singh was crossing the road and on the divider, there was railing, which he was jumping, in that process, his pant got struck on railing and he sustained injury on his right thigh. He refused to go to hospital saying that he would tie a bandage at home, so, he left him at his house. He was not able to walk because of the injuries and he had to help him.
DW1 has further deposed that few days prior to this, he had gone to the office of PW1 Joginder Singh @ Bitta alongwith accused Tejender. There accused Tejender had demanded his Rs. 3 lacs, at which, Joginder stated that he was financially tight and will give money after few days. It is contended that in view of the deposition of DW1, accused Tejender has been able to prove his plea of alibi beyond reasonable doubts and also the cause of injury, which made accused SC No. 59/1 27 Tejender unfit for moving anywhere, as deposed by PW10 Dr. M.M. Anand, so, the whole story of firing made by accused Tejender Singh on PW1 Joginder Singh is false and fabricated.
In my view, the contentions of learned defence counsel are not acceptable. Neither it was suggested to the witnesses in the cross examination that due to the injuries, accused Tejender Singh was unable to move and could not be present at the place of occurrence, as deposed by the witnesses, nor it is suggest that few days before the incident, on which date, accused Tejender Singh sustained injury, as deposed by DW1 Harvinder Singh, he accompanied accused Tejender Singh, who demanded Rs. 3 lacs from Joginder Singh at his office, who had refused as he was financially tight at that time. Rather the deposition of DW1 Harvinder Singh in this respect proves the motive for accused Tejender Singh to make fire in the night, as deposed by the witnesses, on Joginder Singh with intent to kill him, so, the contentions of learned defence counsel regarding plea of alibi are not forceful in any manner. It is suggested to PW1 Joginder Singh that he had attacked accused Tejender Singh with Farsa 67 months before this incident because he was demanding money and PW1 Joginder Singh was not inclined to pay the same, but this fact has not been proved in any manner by leading any cogent evidence.
Only suggestion has been given to PW1 Joginder Singh that accused Tejender Singh was not present there at that time and further, accused Tejender Singh has been falsely implicated in order to evade payment of money. Regarding the returning of money, accused Tejender has not been able to bring on record any material that he had to recover certain amount of money from PW1 Joginder Singh. Contradictory suggestions have been given to PW1 Joginder Singh and PW7 Maninder Bopa Rai, both husband and wife. It is suggested to PW1 that he received injury from some unknown person and has falsely implicated accused Tejender Singh, whereas it is suggested to PW7 Maninder Bopa Rai that incident had taken place inside the house between the family members and accused has been falsely SC No. 59/1 28 implicated in this case. Had it been so, then there should have been blood stains inside the house, which have not been found. It is not suggested to PW7 Maninder Bopa Rai that accused Tejender Singh was not present at the spot, hence, the plea of alibi as raised by accused Tejender Singh is not forceful in any manner. Even according to the deposition of PW10 Dr. M.M. Anand, it was difficult for accused Tejender Singh to move around, but was not impossible. So, nothing has been brought on record to prove that due to the injuries sustained by accused Tejender Singh, in all circumstances and probabilities, he was unable to move and could not be present at the spot, at the time of incident.
Learned defence counsel has further contended that according to the deposition of PW10 Dr. M.M. Anand, he had examined accused RainaTejender Singh on 18/11/2000, at about 2.15 a.m. as accused had sustained injury in the night of 16/17.11.2000. It is further contended that accused remained admitted in the nursing home and was discharged on the next day. It is further contended that in the cross examination, PW10 has stated that accused was suffering from necrosis and due to the injury, it was difficult for the accused to move around and the tissues became necrotic within 24 hours. Learned defence counsel has further contended that according to DW1, in the night of 16/17.11.2000, he was returning with accused Tejender Singh and while crossing the railing of the divider, accused struck up and sustained injury on his right thigh. At that time, he did not examine himself from any hospital.
According to the case of the prosecution, incident had taken place at about 1.00 a.m. night on 18/11/2000 and according to the medical history sheet of accused prepared in Anand Nursing Home Ex. PW10/A, accused was examined on 18/11/2000, at about 2.15 a.m. and was discharged on 19/11/2000. If accused was sustaining such type of injury due to which he was unable to move, then how, he reached at Anand Nursing Home is not explained in any manner. Accused has given his address in the history sheet of Baljeet Nagar and Anand Nursing Home is at West SC No. 59/1 29 Patel Nagar. It is not brought on record whether it was at a walking distance or accused could reach there by using a vehicle. In the history sheet, it is not mentioned as to by whom, accused was brought there. It is also not mentioned as to why in the night of 18/11/2000 at about 2.15 a.m., he reached at Anand Nursing home for treatment of injury, which was 24 hours old, as per the deposition of DW1 and according to the plea of accused. It is also not explained as to what were the circumstances due to which accused reached in Anand Nursing home at about 2.15 a.m. in the night of 18/11/2000.
Whatsoever it may be, the incident had taken place in the night of 18/11/2000 at about 1.00 a.m. night at Tagore Garden and within one hour, one could reach in the night at Anand Nursing Home at West Patel Nagar and could have got admitted himself there. So, even if, we assume that accused had sustained injury in the night of 16/17.11.2000, then it is not the opinion of the doctor that it was impossible for accused to move anywhere due to the injury. Had it been so, then accused could not have reached at Anand Nursing Home in the night of 18/11/2000, at about 2.15 a.m. for his treatment and examination. In absence of any plausible explanation as to why accused reached at Anand Nursing Home in the night of 18/11/2000, at about 2.15 a.m. for his treatment and examination, it cannot be believed that he had sustained any injury in the night of 16/17.11.2000, as deposed by DW1. Rather it seems to be more improbable that accused reached at Anand Nursing Home and got him admitted there to raise a false plea of alibi.
The witnesses examined by the prosecution inspire confidence regarding recovery of mouser and three live cartridges from the possession of accused RainaTejender Singh. These have been examined by PW5 Sh. K.C. Varshney from FSL and according to his opinion, the pistol mark F1 was found in working order and test fire conducted successfully. Cartridges Mark A1 to A3 were found live and all these exhibits were found arms and ammunition as defined in the Arms Act. Accused has not been able to produce any license in respect of this mouser and live SC No. 59/1 30 cartridges except claiming that he is innocent and has been falsely implicated in this case and further that, he was not present at the spot, which has been disbelieved, as discussed above.
In view of above discussion, the depositions of PW1 Jogender Singh, injured himself, and other witness PW7 Maninder Bopa Rai and further PW11 Rana Pratap Singh, are inspiring confidence. Their testimonies remained unshaken during cross examination and they have corroborated each other. Incident had taken place in the night. Accused Raina Tejender Singh reached at the house of PW1 Jogender Singh, having a weapon with him and made fire on PW1 Jogender Singh. According to the deposition of PW2 Dr. Vinod Khetrapal, there was wound of exit at L3, L4 level lateral to mid line left side and wound of entry was just over the umbilicus four inches above, slightly lateral to mid line. Under such circumstances, the bullet could not be recovered. Testimony of PW2 is not disputed in any manner.
It has also come in the depositions of the witnesses that due to some previous money transaction, accused Raina Tejender Singh was having enmity with PW1 Jogender Singh. There is no evidence that accused made fire under grave and sudden provocation, rather a quarrel had taken place in between accused Raina Tejender Singh and accused Chasam Pal Singh as to why accused Raina Tejender Singh had made fire on PW1 Jogender Singh. Under such circumstances, there could not be any common intention on the part of accused Chasam Pal Singh to cause injury with revolver to PW1 Jogender Singh because according to the depositions of PW1 Jogender and PW7 Manindeer Bopa Rai, accused Raina Tejender Singh suddenly took out a revolver and made fire on PW1 Jogender Singh, which shows that accused Raina Tejender Singh had reached at the spot after making preparation to cause injury to PW1 Jogender Singh with intent to kill him. So, prosecution has been able to prove offence u/s. 307 of IPC against accused Raina Tejender Singh beyond reasonable doubts, for which, he is held guilty and convicted for the same, whereas the evidence brought on record is not showing or proving that SC No. 59/1 31 accused Chasam Pal Singh was having any common intention to cause injury to PW1 Jogender Singh, which could be fatal to his life, so, accused Chasam Pal Singh is acquitted for the offence u/s. 307/34 of IPC.
In view of above discussion, the prosecution has also been able to prove beyond reasonable doubts from the evidence brought on record that while causing injury to PW1 Jogender Singh, accused Raina Tejender Singh used a weapon i.e. revolver, so, he is also held guilty and convicted for offence u/s. 27 of Arms Act.
In view of above discussion, according to the depositions of the witnesses of the prosecution, which remained unrebutted and unshaken, prosecution has also been able to prove beyond reasonable doubts that after the arrest of accused Raina Tejender Singh, on his pointing, from his house, one mouser along with three live cartridges was recovered. It was examined in the FSL and according to the deposition of PW5 Sh. K.C. Varshney, mouser and all the three live cartridges were arms and ammunition as defined in the Arms Act. Accused Raina Tejender Singh has not been able to produce any license before the Court to possess the mouser and three live cartridges. So, he was found keeping the same without any permission or license, as required, hence, he is also held guilty and convicted for offence u/s. 25 of Arms Act.
Finding qua offence U/s. 212 of IPC against accused Virender @ Pinchu:
Learned defence counsel has contended that only evidence brought on record against accused Virender @ Pinchu is that in his Maruti Van, accused Tejender was found present, which itself does not prove in any manner that accused Virender @ Pinchu was harboring and concealing him with intent to screen him from legal punishment. It is further contended that no inference can be drawn from this fact that accused Virender @ Pinchu was knowing that accused Tejender was involved in this case. It is further contended that offence alleged is dated 18/11/2000, SC No. 59/1 32 whereas according to the case of prosecution, accused Tejender had been apprehended and arrested on 08/12/2000 and nothing has been brought on record that during this period, accused Tejender was harboured or concealed by accused Virender @ Pinchu and even if the evidence is believed, then presence of accused Tejender with accused Virender @ Pinchu does not mean that he was harbouring or concealing with intent to screen him from legal punishment or he was knowing that accused Tejender was having this case against him.
In view of above discussion, prosecution has not been able to brought on record any evidence to prove the fact that accused Virender @ Pinchu was having any knowledge to the extent that accused Raina Tejender Singh was absconding after committing crime and further that, he was harbouring accused Raina Tejender Singh in any manner, so, prosecution has not been able to prove offence u/s. 212 of IPC against accused Virender @ Pinchu beyond reasonable doubts, for which, he is acquitted.
Finding qua offence U/s. 201/34 IPC against accused Kashmir and Dildar :
In this respect, PW9 HC Joginder Singh has stated that on 30/11/2000, he joined investigation of this case with PW15 SI Naresh and thereafter, he alongwith PW15 SI Naresh Kumar reached at Main market, Rajouri Garden and at about 12 p.m. day, they reached at the shop of Cheema Batteries. At about 12.30 p.m., one Sikh gentleman, who was roaming there, came and checked the locks of the shop of Cheema Batteries. He was interrogated and he disclosed his name as Kashmir Singh and further disclosed that he was doing business of inverters there. He further disclosed that the car, which was used in the incident of 18/19.11.2000, was parked near the shop by Cheema. Accused Kashmir Singh further told that he alongwith accused Dildar Singh removed the said car from there and parked the same in the house of accused Dildar Singh.
PW9 HC Joginder Singh has further deposed that accused Kashmir was arrested in this case vide memo Ex. PW9/A. His personal search was conducted vide SC No. 59/1 33 memo Ex. PW9/B. Accused Kashmir also made disclosure statement Ex. PW9/C. PW9 has further deposed that thereafter, accused Kashmir Singh led them to Sewak Park and pointed out one car covered with tirpal in the house of accused Dildar Singh. Accused Dildar Singh was also present there. Key of the car and one remote of centre locking system were recovered from the possession of accused Dildar Singh. Same were seized vide memo Ex. PW9/D. Thereafter, car was checked and some blood spots were found on the seat covers, so, the same were removed and were seized vide memo Ex. PW9/E. The car was Maruti Zen No. DL6CD3662. Accused Dildar Singh was arrested vide memo Ex. PW9/F and his personal search was conducted vide memo Ex. PW9/G. Maruti Zen car No. DL6CD3662 was also seized vide memo Ex. PW9/H. Photographs of the Maruti Zen car were also taken at the spot, which are Ex. PW9/1 to 12. Thereafter, they came back to PS Rajouri Garden. Case property was deposited in the malkhana. Both the accused were locked up.
PW15 Inspector Naresh has also deposed the same facts regarding arrest of accused Kashmir Singh and Dildar and further about recovery of Maruti Zen car.
Learned defence counsel has contended that according to the depositions of the witnesses, Maruti Zen car was found parked at an open place and further, no evidence has been brought on record to prove that both these accused were having knowledge that this Maruti Zen car was used in commission of the offence and they concealed the same in furtherance of their common intention to cause disappearance of evidence of offfence. It is further contended that it has not been brought on record that both accused had removed the Maruti Zen car from Cheema Batteries to nearby house of accused Dildar at the instance of accused Chasam Pal Singh.
In the cross examination, both PW9 and PW15 have stated that they were in civil dress and they had hired a taxi to go to the house of accused Dildar Singh. Firstly, accused Kashmir Singh was arrested. According to PW9, they left Rajouri Garden at about 1.30/1.45 p.m. and reached at Sewak Park at about 2.30/2.45 p.m., SC No. 59/1 34 whereas PW15 has stated that they reached at the house of accused Dildar Singh at about 12.30 or 1.00 p.m. So, thee is a difference in time of reaching at the house of accused Dildar Singh, but merely a difference in time is not sufficient to disbelieve the testimonies of the witnesses. At the time of recovery of Maruti Zen car, crime team was called. Photographs were taken. Writing work was also done at the spot, to which, both the witnesses have corroborated each other.
According to the deposition of PW9, key of the car and one remote of centre locking system were recovered from the possession of accused Dildar Singh, which shows that car was in possession of accused Dildar Singh, even though, the same was found lying in an open place.
According to PW1 Joginder Singh, after firing on him by accused Tejender Singh, accused Tejender Singh fled away from the spot in a white colour Maruti Zen car bearing No. 3662. It is this Maruti Zen car, which has been recovered from the possession of accused Dildar Singh. According to PW7 Maninder Bopa Rai, accused Tejender Singh fled away from the spot in a while colour Maruti zen car, which was standing there. According to PW15 Inspector Naresh, at the time of checking of the car from inside, after opening its door with the recovered key, he found blood on the driving seat cover and on the back side seat cover of the said car, hence, both the covers were removed and sealed with the seal of "NK" and were seized vide memo Ex. PW9/E. Maruti Zen car No. DL6CD3662 was also taken into possession vide memo Ex. PW9/A. Photocopy of RC along with insurance was also taken into possession vide memo Ex. PW9/U. RC of this Maruti Zen car is Ex. PW15/B. The same is in the name of accused Chasam Pal Singh.
After the incident, accused Chasam Pal Singh did not report the matter to the police and it seems that the car was concealed by accused Dildar Singh knowingly that the same was used in the commission of offence. Accused Chasam Pal also did not take any action about the car and it should be in his possession, but was found in the possession of accused Dildar Singh. No explanation has been given SC No. 59/1 35 by the accused persons as to how the car came in possession of accused Dildar Singh, which shows that in connivance with accused Raina Tejender Singh and Chasampal Singh, he caused disappearance of evidence to screen the offender i.e. accused Raina Tejender Singh.
Learned defence counsel has contended that the seat covers recovered from this Maruti Zen car Ex. PW5/B were examined by PW3 Sh. A.K. Srivastava. The report of FSL is Ex. PW3/A. According to the report, blood was detected on Ex. 5A i.e. one of the seat cover, whereas blood could not be detected on Ex. 5B i.e. another seat cover. The blood group was found of "AB" on the seat cover Ex. PW5/A, whereas blood sample of accused Tejender Singh could not be ascertained as sample was putrefied, hence, prosecution has not been able to connect the blood spots on the seat cover with the blood group of accused Tejender Singh. It is further contended that one pajama, one piece of gauze cloth, having dark brown stains, few cemented floor pieces Ex. 1A, Ex. 2A and Ex. 3A were found having blood stains of human of "AB" group, so, there seems to be possibility of planting the blood stains of injured on the seat cover of car.
I am not convinced with the contentions of learned defence counsel as "AB" blood group could be of so many persons. Secondly, both PW1 Joginder Singh and PW7 Maninder Bopa Rai have stated that accused Raina Tejender Singh had fled away from the spot after the incident in this Maruti Zen car No. DL6CD3662, but as blood sample of accused was found putrefied, hence, the same could not be connected with the blood stains found on the seat cover, but under no circumstances, it can be held that blood of injured was planted on seat cover of Maruti Zen car No. DL6CD3662 as of accused Raina Tejender Singh.
In his statement, accused Chasam Pal Singh has not explained as to how his Maruti Zen car came into possession of accused Dildar Singh, rather he has stated that his Maruti Zen car has been planted upon him falsely to link him with the commission of offence. It has been proved by the witnesses that the said Maruti Zen SC No. 59/1 36 car No. DL6CD3662 was belonging to accused Chasam Pal Singh, in which, accused Raina Tejender Singh, after committing the offence, had fled away from the spot, so, only accused Chasam Pal Singh could have explained as to what had happened with his Maruti Zen car, if he did not receive back the same from accused Raina Tejender Singh. The car was recovered from the possession of accused Dildar Singh, who has claimed himself to be employee of accused Chasam Pal Singh in his statement recorded u/s. 313 Cr.P.C., which proves that Maruti Zen car was concealed by accused Dildar Singh for causing disappearance of the evidence of commission of offence committed by accused Raina Tejender Singh in connivance with accused Chasam Pal Singh.
In view of above, from the depositions of the police witnesses i.e. PW9 and PW15, prosecution has been able to prove beyond reasonable doubts that firstly, accused Kashmir Singh was apprehended outside the shop of Cheema Batteries. He made disclosure statement and further led the police party to the house of accused Dildar Singh, on whose pointing, Maruti Zen car No. DL6CD3662 was recovered, having blood stains on the seat covers and this Maruti zen car was recovered from the possession of accused Dildar Singh. Both accused Kashmir Singh and Dildar Singh have admitted that they were employees of accused Chasam Pal Singh.
According to the depositions of PW1 Jogender Singh and PW7 Maninder Bopa Rai, after causing injuries to PW1 Jogender Singh, accused Raina Tejender Singh had fled away from the spot in this Maruti Zen car No. DL6CD3662. Accused Chasam Pal Singh has not given any explanation as to how this Maruti Zen car No. DL6CD3662 reached from the hands of accused Raina Tejender Singh to the hands of accused Kashmir Singh and Dildar Singh. The witnesses have also not been cross examined in this respect in any manner, so, it is proved beyond reasonable doubts that accused Raina Tejender Singh in connivance with accused Chasam Pal Singh and further with the help of accused Kashmir Singh and Dildar Singh caused disappearance of evidence of the incident i.e. Maruti Zen car No. DL6CD3662 to SC No. 59/1 37 screen the offender, for which, accused Chasam Pal Singh, Kashmir Singh and Dildar Singh are held guilty and convicted for the offence u/s. 201 read with Section 34 of IPC.
Announced in the open court (Virender Kumar Goyal)
today on 23rd of January, 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 59/1 38