Delhi District Court
State vs . Vijender @ Vijay @ Langda on 12 September, 2019
IN THE COURT OF MS. NIRJA BHATIA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
UID No. 57454/2016
State Vs. Vijender @ Vijay @ Langda
FIR No. 511/14
PS Ranhola
U/s 307 IPC & 25 Arms Act
JUDGMENT
1 Sl. No. of the case 56925/2016
2 Date of Committal to Sessions 20.11.2014
3 Name of the complainant Sh. Sanjay
4 Date of commission of 07.07.2014
offence
5 Name and Parentage of Vijender @ Vicky @ Langda,
accused S/o Sh. Ram Lal, R/o C60, Gali
No. 3, Vikas Nagar, Uttam
Nagar, Delhi.
6 Offence complained of Under Section 307 IPC & 25
Arms Act
7 Offence charged Under Section 307/324 IPC &
section 25/27 of Arms Act
8 Plea of guilt Pleaded Not Guilty
9 Final order Convicted u/s 324 IPC and &
25 Arms Act acquitted U/s 307
IPC and 27 Arms Act
10 Date on which order reserved 29.08.2019
11 Date on which order 12.09.2019
announced
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 1 of 38
STORY OF PROSECUTION
1. Brief facts of the case emerged through the statement Ex.PW 3/A made by Sanjay Sahni stating that on 07.07.2014, he was called by PW 6 Devender for celebration of his birthday. Besides, PW 3 Sanjay, PW 2 Johny, PW 4 Rajeev, PW 5 Lokesh @ Sunny, PW 7 Pintu and PW 8 Mohit were also called. When they all reached at spot i.e. Nursery, Dass Garden, near Ganda Nala, PW 5 Sunny was called by PW 4 Rajiv. On reaching, PW 5 Sunny called his brother in law PW 8 Mohit. Mohit also brought accused Vijender and they all collected and started consuming beer during which Vijender started boasting about his notoriety. Johny challenged him on his such boasting whereafter Vijender abused him and took out a pistol from his right side and shot at Johny. As PW 3 Sanjay Sahni was standing immediately behind Johny, the bullet after piercing Johny through abdomen hit Sanjay on right side of his abdomen as a result they both fell. Vijender then fled from the spot on scooty of Sanjay Sahni. Johny and Sanjay both there were FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 2 of 38 removed to Aayushman Hospital, however as his condition was serious, he was referred to DDU hospital. PW 3 Sanjay was also removed to DDU Hospital.
2. PW 17 IO submitted that on 08.07.2014, on receiving DD NO. 4A, he alongwith Ct. Sumit reached the spot which he revealed as Mangal Bazar, Dass Garden and found few persons collected near Nursery at Ganda Nala, Najafgarh. He also found blood at the spot. It was revealed that the injured had been removed to Ayushman Hospital. Leaving Ct. Mandeep and Sushil, (the beat constables) he reached at Ayushman hospital however was informed that the injured were removed to DDU hospital.
3. At DDU Hospital, MLC of injured Johny was collected by him which showed that he was brought in casualty with alleged history of gun shot at 10:30 pm by unknown person near Dass Garden, Baprola. He was not fit for statement and his injuries were reportedly under observation as per MLC No. 3414/14 and were disclosed as "gun shot injury over chest entry and exit wound present. He found injured Johny under treatment at emergency ward. He then received MLC No. 6904/14 against FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 3 of 38 which, injured Sanjay was found admitted with history of bullet injury while gun shot fired to person namely Johny who was standing in front of him. As per the history, when one shot was fired, he suffered injury at left side of upper abdomen in same shot passed from standing person with record of LECLW 2 cm multiple 0.5 cm horizontally placed over right side of upper abdomen.
4. During the investigation, beer bottles, blood stained earth control, earth control from the spot were collected. IO also collected the pullanda handed over to him by the doctor containing clothes of injured. The scooty of complainant Sanjay was recovered in abandoned condition and was released over to him on superdari.
5. Accused Vijender @ Vijay was arrested on 08.08.2014 on secret information and from him, desi Katta was recovered.
6. On the MLC of Johny, the doctor opined him having grievous injury while on MLC of complainant Sanjay, blunt gun shot was recorded. After having moved application for sanction u/s 39 Arms Act, IO submitted the charge sheet.
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 4 of 38
7. The cognizance of offence u/s 307 IPC & 25 Arms Act was taken by Ld. MM and the file was committed to the court of Sessions. Vide order dated 17.04.2015 Ld. Predecessor of this Court was pleased to frame the charge u/s 307 IPC and 27 Arms Act against accused Vijender @ Vijay @ Langra.
8. Subsequently, on application of State for framing of additional charge, charge under Section 324 IPC read with Section 25 Arms Act was framed against the accused vide order dated 07.09.2019.
9. The supplementary charge sheet on 18.12.2017 after sanction u/s 39 Arms Act for prosecution of accused Vijender u/s 25 Arms Act, was received alongwith the FSL report of the firearm as well as of the collected exhibits. Subsequent thereto, vide order dated 21.12.2017, the copy of the sanction order was served and name of Addl. DCPI, Outer District was added in the list of witnesses.
Additional charge u/s 324 IPC & 25 Arms Act was framed vide order dated 07.09.2019.
10. The prosecution examined 17 witnesses.
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 5 of 38 PW 1 Amit @ Raju Saxena narrated that on the day of occurrence he went to spot on pasturing of accused Vijay @ Vijender where he saw few more persons having collected and consuming beer and momos. He also ate momo and there after taking leave of Vijender left. He was cross examined by Ld. Addl. PP since he resiled from earlier statement. PW 2 Johny though admitted that he was present at Dass Garden, Baprola on being called by Sunny where he also met with Devender @ Jatua and others where after having consumed beer and momos, some object hit him where after he was taken to DDU hospital and has suffered gunshot injury. He denied the rest of the narrative of prosecution. He even denied knowledge of date, month and year of incident.
11. He was declared hostile and was cross examined by Ld. Addl. PP for the State.
12.PW 3 Sanjay, the complainant supported prosecution partly and narrated that on 07.07.2014, he was called by Jatua @ Devernder at Nursery, Dass garden, near Ganda Nala for celebration of birthday party where he reached at about 07.30 FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 6 of 38 pm and met with Jatua, Guddu and Ravi where after Rajeev called his brother Sunny telephonically informing about the birthday being celebrated by Jatua where after Sunny reached and called his friend Mohit who came with Vijender @ Vijay and after consuming beer, quarrel took place between Guddu and accused Vijay.
He claimed that he was asked by Devender @ Jatua to bring more beer for which, he left with Sunny and when came back to the spot, he came to know that someone had fired two rounds of gunshot in air. In the meanwhile, Johny also reached and stood while Sanjay was standing with him, one gun shot hit him (Sanjay) on right side of waist. Johny pounced upon the person who fired gunshot and apprehended that person whom he identified as accused. Vijender @ Vijay standing just ahead of them carrying a pistol.
13. He narrated that Johny fell on ground and as PW 3 also started bleeding from his waist, noise was raised where after he rushed towards the shop of eggs, from where he went to his house leaving his scooty and its ignition key, on which accused fled. FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 7 of 38
14. At home, he was taken to Ayushman hospital by his nephew Jamuna mukhiya, from where he was taken to DDU hospital where he narrated the occurrence to IO which statement he exhibited as Ex. PW 3/A bearing his signature and also identified his blood stained Tshirt which was taken by police. However, he refused to identify the weapon of offence pistol. He narrated that his scooty was recovered against seizure memo Ex.PW 3/B which he took on superdari later on. Since he did not support prosecution completely, he was cross examined, in which he admitted that date of occurrence was 07.07.2014. He identified that accused Vijender being the person who abused Johny while boasting about himself and having seen him taking out a pistol from right side of his waist and having fired gun shot at the abdomen of Johny which pierced through Johny and touched his right side abdomen as he was standing behind Johny on his left side whereafter Vijender fled taking his scooty alongwith Mohit.
15. In further cross examination, conducted by Ms. Rubi, counsel of accused, nothing material could be elicited. FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 8 of 38
16. PW 4 Rajeev narrated to have attended the birthday party of Devender in the year 2015, on the 7th day the month he did not remember at Dass Garden alongwith Johny, Pintu, Guddu, Sunny and Sanjay where Sunny called his brother in law Mohit who came with another person whose name he did not remember, during which party, he alongwith Pintu went for buying momos. When he came back, he saw injured with gunshot injury but he did not know how it was sustained. Johny was shifted to Ayushman hospital. No treatment was given there where after he was removed to DDU hospital. He made the call to family members of Johny and one of the family members of Johny, called the police at DDU hospital. He denied having knowledge of the person who accompanied Mohit and or of the weapon pistol. In cross examination, he admitted that date of occurrence was 07.07.2014. However, he denied that accused Vijay @ Vijender and Amit also reached alongwith Mohit. He did not identify accused Vijay despite him being pointed out. He also denied the entire occurrence of Vijay boasting about himself and being confronted by Johny where after Johny FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 9 of 38 having fired at, by Vijay with intention to kill him which bullet also hit Sanjay who was standing behind Johny. He denied that Vijay fled from the spot. He was not cross examined.
17. PW 5 Lokesh @ Sunny narrated about hving attended the birthday party of Devender on 07.07.2014 with Rajeev, Johny, Guddu and Devender at Dass Garden. He claimed that he left in between to buy momos and when he arrived back, he found Johny lying on the ground having gunshot injury on his stomach, who was then taken to DDU hospital in a vehicle. He denied any knowledge about, the person being responsible for firing the gun shot at which stage, he was declared hostile and was cross examined by Ld. Prosecutor in which he denied that Vijay and Mohit also reached at Dass Garden with Amit. He denied the identity of Vijay being known to him despite being pointed out. He further denied the entire occurrence despite each statement being read over to him.
18.PW 6 Devender narrated that on 07.07.2015 he was celebrating his birthday with his friends. He stated that on receiving the phone call of his mother, he left and came to know the next FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 10 of 38 morning that some quarrel took place in the ground where he was celebrating his birthday party but denied any further knowledge of the occurrence He was cross examined by Ld. Prosecutor as he resiled from his statement and was declared hostile. He denied that occurrence took place on 07.07.2014 and claimed that he alongwith Sanjay, Pintu, Guddu and Rajeev went to Dwarka to buy beer bottles. He admitted that Sunny attended the birthday party but denied that he was called by Rajeev. He further denied that Sunny further called Mohit who reached with Amit and Vijay who was shown to him as the accused. He further denied that Vijay boasting about his notoriety where after Johny reached and confronted Vijay where after, Vijay fired gunshot at Johny to kill him and fled on scooty of Sanjay. He denied that he alongwith his friends took Johny to Dwarka hospital wherefrom he was taken to DDU hospital. He denied the knowledge of the case property. He was not cross examined.
19. PW 7 Pintu narrated that on 07.07.2014, he went to birthday party of Devender wherefrom he went with Rajeev to purchase FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 11 of 38 beer and when he came, he found Johny in unconscious condition as someone has fired gunshot at him and he was bleeding. He denied the knowledge of the person who fired at him, at which stage, he was declared hostile and was cross examined by Ld. Addl. PP, in which he admitted that Rajeev had called his brother Sunny. Mohit reached the spot with two friends but denied them to be Vijender and Amit. He denied that he saw Vijender at the spot who had been boasting about himself and was confronted by Johny where after, Johny and Vijay quarreled and Vijay fired gunshot at Johny to kill him which after piercing Johny, hit Sanjay who was standing behind Johny where after Vijay fled on Sanjay's scooty. He denied the knowledge of weapon of offence. He was not cross examined.
20.PW 8 Mohit narrated that he did not remember the date and month but it was in the year 2014 when the occurrence took place on which day, he was called by Sunny for celebrating party at Dass Garden and in the evening, at about 06.3007.00 pm, he left his house on scooty and on way, met with accused Vijender (whom he identified) and Amit and thereafter, he FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 12 of 38 alongwith accused Vijender reached Dass Garden. Amit also reached on his motorcycle at Dass Garden, where he met Sanjay, Johny and their friends where Vijender received a call of his mother and left with Amit on the motorcycle of Amit. While he, Sunny and Rajeev went to purchase momos and after some time, on returning to spot, saw Johny in unconscious condition having bullet injury and bleeding where after, Johny was first taken to a hospital at Dwarka and from there, in ambulance to DDU hospital. He was declared hostile and was cross examined by Prosecutor, in which he denied the entire occurrence despite each statement being read over to him. Case property was shown to the witness who denied the same. He was not cross examined.
21. PW 9 Dr. Yogendra Singh, CMO stated that on 07.07.2014 one injured Johny was brought to casualty with history of gunshot injury whom he treated and prepared MLC NO. 3414/14 and exhibited the same as Ex.PW 9/A bearing his signature which injury he opined as grievous injury. He was not cross examined.
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 13 of 38
22. PW 10 SI Rambir was duty officer on 07.07.14 and on rukka brought by Ct. Amit, which was sent by IO SI Brahm Prakash, he registered FIR Ex.PW 10/A. The endorsement on rukka was Ex. PW 10/B. He also stated that at about 12.10 am, he received information about the accused having fled from Dass Garden, Mangal Bazar Road, after firing Lal School which information he recorded as DD NO. 4A. He also received another information at about 01.20 am, regarding admission of Sanjay in DDU hospital against Ex. PW 7/A. Contrary suggestions put to him were denied.
23.PW 11 Dr. Ajay Sharma, Medical Officer, DDU hospital exhibited MLC of Sanjay, S/o Lakhan Sahni, bearing no. 6904 and same was exhibited as Ex.PW 11/A. He stated that he found on local examination that there was bullet injury on the right side of upper abdomen of the length 2X5 cm. He was not cross examined.
24. PW 12 Ct. Anil Kumar joined investigation with IO on 08.08.2014 where IO SI Brahm Prakash had received secret information of accused Vijender @ Langda at Khedi Baba Pul FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 14 of 38 where at 08.00 pm, on pointing out of secret informer, he was apprehended by him and SI Brahm Prakash and on cursory search from backside of the accused, one country made pistol was recovered which was found loaded with the cartridge. Accused revealed that he used the weapon in offence about one month back which disclosure statement was exhibited as Ex. PW 12/A. The sketch of countrymade pistol and cartridge were exhibited as Ex. PW 12/B. Pullanda of cartridge and country made pistol was made with seal of BP against seizure memo Ex. PW 12/C. The place of occurrence was stated by accused and at his instance, pointing out memo Ex.PW 12/D was made. His personal search was carried out vide Ex.PW 12/F after he was arrested against arrest memo Ex.PW 12/E. It was stated by accused that he procured the weapon from one Ashu R/o Shiv Vihar, J.J. colony. He was not cross examined.
25. PW 13 Ct. Naveen was member of mobile crime team and was present with SI Devender Singh and HC Lalit Kumar on 08.07.2014 at spot where they found broken beer bottle and blood. At the instance of Incharge, SI Devender Singh, he took FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 15 of 38 seven photographs from different angles which were Ex.PW 13/A (colly). The negative of the photographs were Ex.PW 13/B (colly). He was not cross examined.
26. PW 14 Ct. Sunil was present on 08.07.2014 on emergency duty with SI Brahm Prakash when at 12.10 am, vide DD NO. 4A, information of quarrel at Dass Garden was received where after they both went to Dass Garden and came to know that injured had been taken to Ayushman hospital, Dwarka. They then went to Ayushman hospital and collected MLC of injured Johny who had been referred to DDU hospital. Thereafter, they both reached DDU hospital and collected MLC NO. 6904/14 of injured Sanjay Sahni who was fit and his statement was recorded by IO SI Brahm Prakash. They came back to the spot where IO handed him over the rukka and he got the case registered. He witnessed the seizure of earth control, blood stained earth control which was lifted in his presence by IO against Ex.PW 14/A. The empty beer bottles were collected in plastic katta and sealed with the seal of BP. He deposited both the seized pullandas with MHC(M). He witnessed that at FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 16 of 38 hospital, IO was given the blood stained clothes in pullanda by the doctor at DDU hospital which was seized against Ex.PW 14/B and Ex.PW 14/C. In cross examination, he stated that statement of Sanjay was recorded in his presence. Site plan was also prepared in his presence having his signatures.
27. PW 15 HC Mahender exhibited entries in register no. 19 against Sr. No. 943 (Ex.PW 15/A regarding pullanda of blood stained shirt, wound swab, six empty beer bottles, earth control, blood stained earth control and wound swab of Johny), Sr. NO. 985 (Ex.PW 15/B desi katta and live cartridge). He stated that katta and cartridge were sent to FSL vide RC No. 142/21/14. Another RC entry of dispatch of two sealed parcel against no. 148/21/14 dated 25.11.2014 was exhibited of the case properties. The FSL result was received on 03.11.2015 regarding katta and cartridge and on 05.11.2015, FSL result of another case property was received.
28.PW 16 Amit Sharma Additional DCPI, Central District, Delhi stated that on 15.12.2017, while he was posted as Addl. DCPI, Outer District. He granted sanction u/s 39 Arms Act to FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 17 of 38 prosecute accused which was exhibited as Ex.PW 16/A. He was not cross examined.
29. PW 17 SI Brahm Prakash IO of the case was examined, in which, he stated about having received DD NO. 4A on intervening night of 7/8.07.2014 where after he reached the spot alongwith Ct. Sumit i.e. Mangal Bazar Road, near Nursery, Dass Garden, Baprola where two persons were found gathered near the drain ahead of nursery and blood was lying at the spot where he came to know that the injured had been shifted to Ayushman Hospital, Dwarka. In the meanwhile, beat constable Mandeep and Ct. Sushil also reached at the spot. He further stated that he left them at the spot and went to Ayushman Hospital alongwith Ct. Sumit where he came to know that the injured had been referred to DDU hospital. He obtained the MLC of injured Johny from there and thereafter, went to DDU hospital where he collected the MLC of other injured namely Sanjay and recorded his statement. Injured Johny was reported unfit for statement. He further deposed that the doctor handed him over a sealed pullanda containing wound swab exit and FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 18 of 38 entry of Johny which was taken into possession by vide seizure memo Ex.PW 14/C. Doctor also handed over another sealed parcel containing the blood stained shirt and wound swab of Sanjay which was taken into possession vide seizure memo Ex.PW 14/B. Thereafter, he alongwith Ct. Sumit came back to the spot, prepared the rukka and handed over the same to Ct. Sumit for registration of FIR. Thereafter, this witness called the crime team at the spot which inspected the spot. In the meanwhile, injured Sanjay also came at the spot. After some time, Ct. Sumit came back at the spot and handed over copy of FIR and original rukka to this witness. At the instance of injured Sanjay, this witness prepared the site plan Ex.PW 3/D. Thereafter, lifted the blood stained soil from the spot which was kept in a plastic container and was sealed with the seal of BP. He also lifted earth control from the spot, kept it in a plastic container which was sealed with the seal of BP and prepared seizure memo Ex.PW 14/A. He also lifted six empty beer bottles from the spot. Thereafter, he went to the PS and deposited the case property with the MHC(M). One scooty of FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 19 of 38 white color belonging to injured Sanjay was found lying abandoned in a vacant plot before commander crossing, main Ranhola Road and on identification by Sanjay, he took into possession the same vide seizure memo Ex.PW 3/B. Injured Sanjay also produced the original invoice and insurance of the scooty which were taken into possession vide seizure memo Ex.PW 3/C. This witness recorded statement of other eye witness and searched for the accused.
30.On 08.08.2014, at the instance of secret informer, accused Vijender was arrested from Khedi Baba Bridge, Najafgarh Drain vide arrest memo Ex.PW 12/E and was personally searched vide personal search memo Ex.PW 12/F. He recorded disclosure statement of accuse Vijender @ Vijay @ Langra Ex.PW 12/A. Upon search of the accused, one country made pistol which was loaded with one live cartridge was recovered from his possession. He prepared sketch of the pistol and cartridge Ex.PW 12/B and took its measurements. He kept the pistol and cartridge in a cloth pullanda which was sealed with the seal of BP and prepared seizure memo Ex.PW 12/C. FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 20 of 38 Thereafter, accused led them to place of incident where at the instance of accused, he prepared pointing out memo Ex.PW 12/D. He collected the result of the MLC and sent the exhibits to FSL for analysis. After completion of the investigation, charge sheet was submitted for trial.
31. In cross examination, he stated that since it was late at night, he did not call any local resident to join the investigation. He could not give the number of Gali from where scooty was recovered. He stated about his difficulty of making a public witness, participate in arrest proceeding of accused Vijender on 08.08.2014 since the place of arrest was busy with traffic. Contrary suggestions were denied.
32. During proceedings, accused admitted the genuineness of FSL report prepared by Pooja Shrotia, (Biology) FSL Rohini dated 30.09.2015 as Ex. P1 and also admitted Ballistic report no. FSL 2014/F8623 where after Ld. Addl.PP for the State dropped witnesses Pooja and Dr. N P Waghmare after closing of PE, statements of accused was recorded in which the incriminating evidence was read over to him which he denied and claimed FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 21 of 38 false implication.
33.Arguments have been heard by Sh. Amit Kaushal, Advocate on behalf of accused and Sh. Jitender Sharrma, Ld. Addl.PP for the State. It has been averred by Amit Kaushal that witnesses have not supported the case of the prosecution and all the witnesses have turned hostile. It is stated that weapon is planted upon the accused and there is no public witness of recovery and hence the proceedings of recovery of weapon cannot be treated as genuine proceedings and/or, beyond doubt. It is prayed that in circumstances, accused deserved acquittal.
34.Whereas Ld. Sh. Jitender Sharma, Ld. Addl. PP vehemently argued in favour of prosecution and averred that case is proved against accused beyond reasonable doubt. He has vehemently relied upon the testimony of PW 3, Sanjay Sahni who happens to be the complainant in this case as well as medical evidence tendered more specifically by PW 11 who is not subjected to cross examination. It has been observed that initially the cognizance 307 IPC & 25/27 Arms Act was taken however, later on Ld. Addl. PP was pleased to move application for FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 22 of 38 framing of additional charge u/s 324 IPC and 25 Arms Act.
35. The present case is a classic example where the unwillingness of the complainant and victim both to see the matter being prosecuted is apparent. The reason for the aforesaid is reflected since inception from the fact that none made any complaint or call to police or least even PCR qua the occurrence. In fact, the injured Johny to whom, the gun shot had been aimed at, has completely turned hostile, however, still in view of settled provisions of law, the statement of witnesses, wherefrom the cogent and creditable material aspects are corroborated are discussed and are analysed for recording the findings below:
(1) The statement of PW 3 Sanjay Sahni at whose version the complaint Ex.PW3/A is registered, has though partly resiled from his complaint has largely corroborated the same during his oral statement in court. He detailed the occurrence clearly in the complaint while still in hospital at DDU. From his statement, it was revealed that PW 1 to PW 8, all were present at Dass Garden, Baprola, near nursery at Open Ground. It is also apparent that they had all collected for celebration of birthday FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 23 of 38 party of PW6 Devender @ Jatua. This fact has been corroborated by PW 1 who was asked by accused to join the birthday party where he reached with the accused and one more person (whose name he did not know) were present. This is also stated by PW1 who corroborated that accused Vijay @ Vijender took him and one more person whose name is then detailed as Mohit by other witnesses to Dass Garden, Baprola at birthday celebration where all above named persons had gathered.
(2) Johny, the victim, towards whom the gun shot has been intended also corroborated his presence at Dass Garden, Baprola Vihar where he met Jatua @ Devender and other persons. He stated that he had gone there at the instance of sunny.
(3) PW 3 Specifically corroborated "Mohit came there alongwith Vijender @ Vijay i.e. the accused who is present in the court today". He also stated that they had assembled on 07.07.2014 at the instance of Jatua @ Devender for celebration of his birthday party where apart from him, Devender, Guddu and Rajeev were present and it was Rajeev, who called Sunny FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 24 of 38 and in turn Sunny called Mohit, who brought with him the accused.
The presence of the accused is again corroborated through PW 4 Rajeev who besides confirming his presence, corroborated that his brother Sunny called his brother in law Mohit who brought there another person.
36.PW 5 Lokesh also corroborated the fact of birthday being celebrated where he apart from Rajeev, Johny, Devender and Guddu had gathered, There is sufficient material in form of corroboration of presence of accused Vijender @ Vijay through statement of PW 8 Mohit who stated that while coming to attend the party at Dass Garden, he met with accused on the way and with whom, he also met Amit and thereafter, he alongwith accused went to the place of party where Amit also reached.
37. From the aforesaid statements, it is cogently shown that at the instance of Jatua @ Devender, Johny, Sunny @ Lokesh, Sanjay Sahni, were initially present while at the instance of Lokesh @ Sunny, the presence of Mohit was sought who brought with him FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 25 of 38 Amit and accused Vijender @ Vijay Langda to the spot. Further in the statement of accused, he himself admitted his presence at the spot.
38. Complainant Sanjay PW 3 had summed up that accused Vijender was boasting about himself, when he was challenged by Johny and in order to show him down, Vijender took out the pistol from behind and shot Johny, which bullet after piercing Johny in abdomen, entered in the abdomen of complainant Sanjay. In statement of PW 3, he repeated "someone had fired two rounds of gunshot in the air. In the meanwhile, cousin brother of Rajeev namely Johny also reached there and stood by my side. I was standing with him while putting my hand on his shoulder. At that time, a gun shot hit me on the right side of my waist...., Johny pounced upon the person who fired gunshot upon him and he apprehended that person i.e. the accused who was standing just ahead of us while carrying a pistol. Johny made him fall on the ground." This piece of statement clearly shows that accused possessed the pistol in his hand and had fired the gun shot.
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 26 of 38
39. The reliance made by Ld. Sh. Amit Kaushal on the statement of other witnesses claiming that they have not supported the case of prosecution and or that the statement of this witness needs to be discarded as the witnesses having not supported the prosecution completely, appears to be a misplaced argument. It is a settled law that statement of an eye witness needs to be believed and unless there are discrepancies found to disbelieve the truthfulness from the statement of said witness, courts have to take in view the said testimony as is held in Dayal Singh & Ors. vs. State of Uttaranchal, AIR 2012 Supreme Court 3046, wherein following is also observed:
"24. With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
25. Reiterating the above principle, this Court in the case of National Human Rights Commission v.
FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 27 of 38 State of Gujarat [(2009) 6 SCC 767], held as under: "The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata."
40. From the reading of the evidence brought on record, the presence of the accused at the spot is not disputed. It is not disputed that gunshot had been fired. It is not denied that PW 2 Johny and PW 3 Sanjay the complainant himself both have suffered injury because of gun shot PW3 has specifically stated that accused Vijender @ Langra whom he identified, took out the pistol and shot. From the statement of PW 11 Dr. Ajay Sharma, who has not been subjected to any cross examination, it is again confirmed that injury on Sanjay Sahni PW3 resulted due to gunshot and it was a gunshot wound on his person. Neither the identity of accused nor his using the firearm has been controverted by the defence. Rather PW 3 revealed that accused fled from spot on his scooty which was recovered by FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 28 of 38 the IO later on. Accused has tendered no explanation against this piece of incriminating evidence as he has made evasive statements by claiming having no knowledge about the above incidence.
41.Further during the trial, the FSL report regarding recovery of incriminating material against accused from the spot i.e. the earth control, blood stains, and beer bottles have not been denied as they are admitted u/s 294 Cr.PC. The accused had not denied even the report of FSL regarding weapon of offence i.e. pistol i.e. desi kattta which as per the report of Mr. N P Waghmare, Assistant Director, FSL, is a firearm. The only challenge is made to the extent that the weapon was planted upon the person of accused when he was arrested on 08.08.2014. However, there is no such cross examination that the weapon was planted upon the accused, there is no suggestion of any such effect to the witness of recovery PW 12 or to PW 17 IO SI Brahm Singh who has been generally asked about the time and joining of a public witness and he explained that since it was heavy traffic, no one could be asked to join FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 29 of 38 before the investigation or after the arrest of accused. There is no suggestion specifically that the weapon was planted upon the accused. One suggestion was given that nothing was recovered from the possession of accused, that he did not make any disclosure statement and or the writing work was done while sitting at PS are vague suggestions, juxtaposed to the specific statement of witnesses wherein they have clearly detailed the mode and manner of the recovery from the accused.
42. In view of the aforesaid, he material brought on record shows that PW 3 Sanjay suffered gunshot wound on account of use of firearm at the instance of accused whose presence is corroborated and admitted.
43. The charge against the accused has been framed u/s 307 IPC initially. As per the aforesaid charge, it was requisited to show that accused while carrying out the act, intended to kill Johny (PW 2) and or at least carried the knowledge of such act, as the bullet was aimed at Johny have observed initially that in this trial, neither victim Johny nor the complainant Sanjay appeared keen to see the accused being prosecuted became evident FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 30 of 38 further from statement of PW 2 Johny who completely turned hostile and did not support any of the contents of the allegations against accused. Interestingly, he even denied the presence of accused Vijay. He also denied about the accused boasting himself, and him, challenging the accused where after the accused took out the pistol and shot him. In view of this piece of statement made by PW 2 Johny, material produced by prosecution is insufficient to bring home the guilt of accused u/s 307 IPC.
44. However, the question then remains is what should be the impact of statement made by PW 3 who is victim/injured in this case and complaint is also initiated at his statement. However, the fact that he too was not willing to support the prosecution is again apparent as he also did not fully support his statement. Tough, he admitted the presence of accused as well as the fact that it was the accused who was holding the firearm and he had fired at Johny which bullet also hit him. Despite his being sent to DDU hospital, he did not stay at DDU hospital and left against medical advice. This led to no final opinion being FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 31 of 38 available against his injury. None the less, the MLC showed that he had suffered gunshot wound. The MLC of this injured is not controverted. The gunshot wound though was not aimed at him, but had made him victim. In my view even if the material is not sufficiently available to bring home the guilt of accused u/s 307 IPC for having fired at Johny for/with intention to kill Johny, there is sufficient material to hold accused liable guilty u/s 324 IPC for injuries on PW 3 Sanjay Sahni.
45. Now coming to the other charges i.e 25/27 Arms Act. Ld. Sh. Amit Kaushal on behalf of accused Vijender vehemently argued that none of the charge u/s 25 or either u/s 27 Arms Act is to be maintained against the accused since the weapon of offence is allegedly planted upon him. Ld. Counsel has argued that for the reason that the recovery is shown of a planted weapon, IO has not made any public person a witness in this case. Whereas on the other hand, Ld. Addl. PP has argued that there is sufficient material for conviction of accused under both the aforesaid provisions.
46.It be observed that the material placed on record at the initial FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 32 of 38 stage while IO tendered the charge sheet showed deficiency of material sanction u/s 39 Arms Act. However, the sanction was subsequently obtained from PW 16 Sh. Amit Sharma, Addl. DCPI, Outer District vide order dated 18.12.2017 and the FSL report was also obtained by IO. The supplementary charge sheet was tendered on 18.12.2017. Till this date, no charge u/s 25 Arms act had been framed against the accused. As per the judgment of Hon'ble Supreme Court in "Javitri devi Vs. State 1971 Crl. L. J. 1340 (V 77 C 384)", the proceedings against accused u/s 25 Arms Act till then must be held as nullity. However, in "State Vs. Rajesh", Cr. No. 286/2009, date of decision 12.08.2010, after discussing the law laid down, the Hon'ble High court made following observations:
13. In the case of Ramesh Sharma (supra), a Single Judge of this Court, after taking note of the aforesaid judgments as also the judgments in the case of Om Prakash (supra), arrived at a conclusion that there was no prohibition in law in filing FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 33 of 38 fresh/supplementary charge sheet after obtaining sanction in accordance with law."
47. It is observed that the subsequent sanction and institution of proceedings against the same offence is not barred and the proceedings hence instituted shall be held valid. It is significant to observe that in this case, the charge has been framed after giving due opportunity to the accused, u/s 25 Arms Act vide order dated 07.09.2019 in addition, i.e., subsequent to the supplementary chargesheet was brought on record. Further, the accused and prosecution both had already examined material witnesses in connection with the aforesaid provisions. The accused vide statement dated 12.09.2018 u/s 294 Cr.PC admitted the FSL report tendered by expert namely Ms. Pooja Shrotriya (Biology), FSL Rohini. There has been no denial either to the correctness or to any other aspect of examination conducted by the expert namely Ms. Pooja Shrotriya. The FSL report clearly thus shows that the weapon forwarded for examination was firearm which finding is also not controverted. FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 34 of 38 The lone argument raised by defence is pertaining to recovery as it is argued vehemently that weapon is planted at the time of arrest of accused. However, this argument is no valid defence as since PW 16 Amit Sharma, Addl. DCPI and PW 12 Ct. Anil who joined investigation with IO on 08.08.14 during the arrest of the accused Vijender have not been cross examined at all. The witness PW 12 Ct. Anil specifically stated the mode and manner of arrest of accused. He disclosed that from the cursory search from backside of accused, one country made pistol was recovered with a live cartridge. At which stage, the sketch of the countrymade pistol and cartridge were prepared and both i.e. the countrymade pistol and cartridge were exhibited. It was the duty of the defence at that stage to cull out through cross examination the necessary material to demolish the plea of prosecution that accused was not found possessing the countrymade pistol which was loaded with one cartridge. There is no cross examination of the witness to even suggest that accused was not arrested with the aforesaid weapon and/or, as is now being argued that the weapon was planted upon him. In FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 35 of 38 circumstances above, as there is necessary corroboration of this witness through PW 17 SI Brahm Prakash IO, I am of the view that in view of the admitted FSL report and in absence of any cross examination to show valid defence, the possession of Firearm without any valid license is shown sufficiently from the possession of accused.
48.Now coming to the charge u/s 27 Arms Act, The provision of section 27 mandate as below:
Punishment for using arms, etc.(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death.
49. The evidence produced in this regard and relied upon by prosecution is preliminarily through admission of accused of the FSL report u/s 294 Cr.PC. It is further argued that accused held FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 36 of 38 a loaded firearm on the date of occurrence which he used in causing hurt to victim Johny and Sanjay as is shown from their respective MLCs Ex. PW 9/A and Ex. PW 11/A showing that both the victims have suffered gunshot wound. It is stated that there is sufficient material to convict accused for the charge u/s 27 Arms Act. However, it is observed that during the statements made by witnesses who have serially turned hostile except of PW 3 Sanjay, none of the witness have come forward specifically to state that accused used the same pistol to fire upon victim and complainant. Though he stated so, he specifically made denial of his being able to identify the firearm even if shown to him. The weapon was later on shown to him which he refused to identify. None of the other witnesses whose presence is shown at the spot made any statement regarding the weapon recovered from the possession of accused to be the same as used in the occurrence. Though, the IO has forwarded the firearm recovered from the possession of accused on 08.08.2015 from the possession of accused with the live cartridge. He had not collected any material from the spot by FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 37 of 38 way of empty shell to connect the weapon with the occurrence. No opinion has been made from the doctors regarding the injury to PW 3 Sanjay as PW 2 Johny to have been caused by the weapon recovered from accused. In view of aforesaid, there is no material on record to sufficiently and beyond reasonable doubt conclude that the weapon recovered from the possession of accused on 08.08.2014 was the same which was used by accused on 07.07.2014 in causing he occurrence.
50. In view of the aforesaid discussion, I find sufficient material beyond reasonable doubt to convict the accused u/s 324 IPC and & 25 Arms Act whereas accused is acquitted from 307 IPC and 27 Arms Act.
51. File be consigned to Record Room after completion of formalities.
Announced in the open court today i.e. 12.09.2019 (NIRJA BHATIA) ASJ03, WEST/DELHI 12.09.2019 FIR No. 511/14 State Vs Vijender @ Vijay @ Langda 38 of 38