Delhi District Court
State vs Jagan Son Of Ram Swaroop on 15 September, 2008
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Sessions Case No. 18/2006
State Vs Jagan son of Ram Swaroop
R/o A91/92, Tigri Colony
New Delhi
FIR No. 913/05
U/s 307 IPC
Police Station Sangam Vihar
Date of Institution: : 10.1.2006
Date when the arguments
were heard : 26.7.2008
Date of judgment : 11.9.2008
JUDGMENT
The SHO of Police Station Sangam Vihar has challaned the accused Jagan to face trial for the offence under section 307 IPC. Learned Metropolitan Magistrate after supplying the copies in compliance of provisions of section 207 CrPC committed the case to the Court of Sessions which was assigned to this court.
BRIEF FACTS The case of the prosecution, in brief, is that on 9/10/2005 at about 3.30 2 pm in front of House No. A86, J.J. colony, Tigri accused and his neighbourers were taking water from the water tanker and the accused removed the bucket of the complainant Sh Sohan Lal and put his bucket there. On protest by Sh Sohan Lal the accused took out a revolver from his right dub and fired at complainant Sh Sohan Lal who briskly moved towards one side and the bullet struck against the neighbourer Sh Deep Chand injuring him.
After recording statement u/s 161 Cr. P.C., medical report of the injured and completion of the investigation accused was challaned for the offence under section 307 IPC, as referred before.
CHARGES Charges under section 307/324 IPC were framed against the accused on 8/2/2006 to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case the prosecution has examined 15 witnesses in all. PW1 Sh. Ashwani has stated, in brief, that on 9.10.2005 he was present in front of his house. One Sh Sohan Lal was taking water from the water tanker. At that time accused removed the bucket of Sh Sohan Lal and put his bucket to get the water from the water tanker. Due to this a quarrel started between them. On that accused Jagan took out his gun and fired at Sh Sohan Lal who in the meantime set aside from the way and fire hit one Deep Chand who was removed to the hospital. Similar are the statements of PW2 Sh. Sukh Ram, PW5 Smt Mana 3 Devi , PW7 Sh. Om Prakash, PW 10 complainant Sh. Sohan Lal. PW10 Sh Sohan Lal has also stated that the police recorded his statement Ex. PW 6/B and seized the pistol of the accused, license and fired cartridge vide seizure memo Ex. PW9/C, Ex. PW 9/D and Ex. PW9/A respectively. He has also stated that accused was arrested at the spot.
PW3 Shri Ramesh Kumar was given up by the prosecution. PW4 Dr Parvez has proved the MLC of injured Sh Deep Chand. Ex. PW 4/A. PW6 SI Ramanand has stated that on 9/10/2005 he was posted as SI at PS Sangam Vihar and was on emergency duty. On receipt of DD No. 14B copy of which is Ex. PW 6/A he recorded statement of the complainant Ex. PW 6/B and gave his endorsement Ex. PW 6/C over the same and handed it over to Ct Ajit Singh for registration of FIR. He has also stated that after registration of FIR the case was marked to SI Brahm Parkash for investigation.
PW8 is Dr Majher Ahmed. He though stated that the patient Sh Deep Chand came to his clinic on 9/10/2005 but has not supported the prosecution case and has stated that injured Sh Deep Chand had sustained injuries due to fall on the road and he gave five stitches to the injured. He was cross examined by learned Addl. P.P for the state he being a hostile witness.
PW9 is Constable Raj Mal who has stated, in brief, that on 9/10/2005 he was posted as constable at PS Sangam Vihar. At about 3.30 pm on receiving 4 information regarding quarrel at Tigri, he immediately reached near J86 Tigri and found ASI Ramanand and other police persons. ASI Ramanand prepared rukka and handed over the same to him for registration of the FIR. He went to the police station and after registration of FIR he returned to the spot along with SI Brahm Prakash. He also stated that IO searched for the fire round. The empty cartridge and the lead was recovered. IO kept the same in the pullanda and sealed with the seal of BPP and seized it vide memo Ex. PW 9/A. Accused was arrested from his house. His personal search was conducted vide memo Ex. PW 9/B. Accused handed over to the IO his pistol and six live cartridges and the license. IO seized the same vide memo Ex. PW9/C and Ex. PW 9/D. He also stated that before taking the accused to PS Ambedkar Nagar injured Sh Deep Chand handed over his pant to the IO and IO sealed the same with the seal of BP and seized vide memo Ex. PW 9/E. He also identified two cartridges Ex. PW4/1 and 2 and pistol Ex. P2 which were seized from the accused. He also identified the live cartridges Ex. PW3/1 to 4. He also identified the lead recovered from the spot Ex. P1 and empty cartridge Ex. P5, jean pant with a hole near the knee as Ex. P6 and license of the accused Ex. P7 which is on superdari with the accused.
PW11 Ct Sh Suresh Chand has stated that on 9/10/2005 he was posted as constable in PCR and was on duty from 2 pm to 8 pm. He received the information from telephone no. 20060039 and entered the message in PCR form, copy of which is Ex. PW11/A. PW12 Ct Virender Kumar has stated that as 5 per the direction of IO he took three sealed pullandas from MHC(M) PS Sangam Vihar vide RC No. 342/21 and took the same to FSL Rohini and deposited there intact and untampered. Thereafter he returned to the police station and handed over the receipt copy to MHC(M).
PW12 Ct Virendr Kumar has stated in brief that on 25.10.2005 as per direction of the IO he took three sealed parcels from MHC(M) Sangam vihar vide RC No. 342/21 and deposited the same in FSL Rohini. During his possession the parcels were intact and were not tampered. He returned back to the police station and handed over the receipt copy to MHC(M).
PW13 Ct Sh Aji Singh has stated that he removed the injured Sh Deep Chand to AIIMS hospital and his MLC was got prepared by him. This witness was hostile and so was cross examined by learned Addl. P.P for the state.
PW14 is injured Sh Deep Chand and has stated that on 9/10/2005 at about 3.30 pm he went to bring milk from Gali no. 5. In the gali he saw a water tanker and people were taking water from the tank. When he reached near the water tanker, he saw a quarrel was taking place between accused and Sh Sohan Lal. Accused was giving beatings to Sh Sohan Lal. Immediately accused fired towards Sh Sohan Lal but the bullet hit him (PW14) near his right knee. Public persons present there shifted him to a nearby hospital. Police came there and shifted him to AIIMS hospital. Police seized his pant vide memo Ex. PW9/E. He 6 identified accused and has also identified his jeans pant Ex. P6.
PW15 is the Investigating Officer SI Brahm Prakash and has proved the site plan prepared by him Ex. 2/DA and the FSL report Ex. PX. He proved the pistol recovered from the accused Ex. P2, live cartridges Ex. P3/14 and fired cartridges Ex. P4/12. He also proved the lead Ex. P1, empty cartridge Ex. P5 recovered from the spot and jean pant Ex. P6 which was handed over by the injured. He also proved the license recovered from the accused Ex. P7 and has stated about the various other steps taken by him during investigation. PLEA AND DEFENCE OF THE ACCUSED In the statement under section 313 CrPC the accused has admitted that there was a water tanker in the gali and the people were taking water form there. He stated that he did not know Deep Chand. He stated that he did not quarrel with anybody, however, some public persons were quarreling and when he intervened they turned hostile towards him and attacked him. He stated that he did not gave beatings to Sohan Lal and when the crowd attacked him he ran towards his house and fired in the air. He did not aim towards anyone and PW Deep Chand sustained injuries by falling when the crowd was running. He did not cause any injury to PW Deep Chand. He has also stated that he did not know if complainant PW10 Sh Sohan Lal was present at the spot at about 3.30 pm and he started taking water from the water tanker. He also stated he did not know when PW Sh Deep Chand was shifted by public persons present there to a 7 nearby hospital. He admitted that on 9/10/2005 PW11 Ct Suresh Chand was posted in PCR from 2 pm to 8 pm and at about 3.36 pm PW11 Ct Suresh Chand received an information from telephone no. 20060039 and he entered the message in PCR form same is Ex. PW11/A. He admitted that he made a telephone call from his telephone number 20060039 to the police/PCR. He has also stated that SHO arrived at the spot after he made a call at the PCR. He did not know as to what has happened. He also stated that he had handed over the empty cartridge along with the license, pistol and six live cartridges to SHO. He denied that lead was recovered from the spot. As regards the FSL report Ex. PX and some other questions the accused has answered that it was a matter of record. He denied the other incriminating evidence put to him. He stated that he was innocent and has been falsely implicated in this case. He took the plea that he had fired in the air towards the sky and he did not aim towards anyone. Injuries received by PW Deep Chand were sustained when he had fallen down. He had fired in the air only to save himself. Accused did not produce any witness in defence evidence.
ARGUMENTS AND FINDINGS It is argued by learned Public Prosecutor assisted by the learned counsel for the complainant that public witness as well as injured Deep Chand have supported the prosecution version with regard to the date, time and place of the incident and bullet firing by the accused from the revolver which hit the injured PW Deep Chand. The medical evidence also supports the prosecution case. It is argued that the bullet has gone through soft tissues so there was no entry and 8 exit wound in the leg of the injured. However, there were two holes in the pant of the injured as bullet pierced from the sides of the pant which was at some distance from the leg. It is argued that defence version that the injury on the person of the injured was due to fall is not true. Had the injured fallen, there ought to be some other injuries besides the injury on his leg. It is also argued that the injured Deep Chand has nothing to do with the accused or the complainant and is an impartial witness and his testimony should be believed and accused is liable to be convicted.
The arguments on behalf of the accused are that there are several contradictions in the statement of witnesses. PW1 has stated that there was blood at the spot but PW5 has stated that there was no blood though PW6 has stated that he has seen the blood and PW15 has stated that no blood was taken. It is argued that there was no blood on the pant of the injured. It is also argued that PW5 Smt Mana Devi, the mother of the complainant has stated that the bullet lead was recovered by her daughter on the next day while cleaning the street while the recovery of the bullet is shown on the date of incident by the police. It is also argued that the FIR is not lodged on the statement of injured Deep Chand while he was very much present at the spot and so was taken to the hospital also.
It is argued that the medical evidence of PW4 Dr Parvez who first treated the injured shows that the injured Deep Chand had injuries due to fall and not bullet injuries. The argument is that lead of the bullet is not found deformed and was intact and therefore, the defence version that the accused fired in the air to 9 save himself is correct. It is argued that the accused had licensed of the revolver and when several persons attacked him at the spot he had to fire in air to save himself and he ran away from the spot to his house so the accused was entitled for his right to private defence. Reliance is placed upon the authorities Wassan Singh Vs. State of Punjab 1996 Cri L.J 878 and Mohd Ramzani Vs. State of Delhi 1980 SCC (Cri) 907.
I have heard learned Addl. Public Prosecutor assisted by learned counsel for the complainant Sh Puneet Mittal, Advocate and have also heard learned counsel for the accused Sh R.P. Khatana, Advocate and have gone through the record of the case and relevant provisions of law and authorities cited on behalf of the accused.
In the present case there is complete corroboration between the statements of eye witnesses PW1 Sh Ashwani Kumar, PW2 Sh Sukh Ram and PW5 Smt Mana Devi , PW7 Sh Om Prakash and PW10 Sh Sohan Lal and PW14 injured Sh Deep Chand as regards the date, time and place of incident and also to the fact that the quarrel took place between the accused and complainant Sh Sohan Lal. The fact that there was blood present at the spot or not or the bullet was recovered from the place i.e street as shown in the seizure memo Ex. PW 9/A on the same day or from the spot on the next day of the incident when the street was cleaned/sweeped by daughter of PW5 Smt Mana Devi is also immaterial in the light of the fact that the prosecution witnesses have proved and the accused himself has admitted in his statement u/s 313 Cr. P.C. that he was present at the spot and has fired the shot. The crux of the matter is whether 10 he fired the shot in his defence or he fired at Sohan Lal but the bullet hit the injured Deep Chand.
The MLC of the injured Sh Deep Chand is proved as Ex. PW 4/A which shows the simple injuries on the person of Sh Deep Chand with gun shot. PW4 Dr Parvez from AIIMS hospital has stated in the cross examination that on seeing the wound he had found that the same was possible only through gun shot. In the further cross examination he stated that the injury of that nature was not possible if knee was struck against the metallic object or the individual fell on a hard surface. The other doctor examined PW8 Majhar Ahmad is a private doctor and has turned hostile. He stated in the examination in chief that the injuries sustained by the injured Deep Chand were due to fall on the rood but in the cross examination he admitted that it was correct that there was no mention in his report that the injured had sustained injuries due to fall. He was confronted with portion A to A of his statement Ex. PW8/A wherein he has stated that the injured informed him that he was fired at and had sustained injuries. This witness in my way is not reliable and is a hostile witness. As against the testimony of witness PW8, PW4 is a reliable witness and so also the MLC Ex. PW 4/A prepared by him.
The right of private defence is available to a person who is not aggressor and is attacked or there is reasonable apprehension of the injuries to his person or property. This right is dealt with in sections 97 to 106 IPC. In Wassan Singh's case the accused received nine injuries of which two were on his vital part, therefore, the firing one shot from the gun which did not hit the assailant but 11 innocent person was found to be a legitimate exercise of right of private defence by the accused but in the present case there is no evidence that anybody has attacked the accused though there is evidence of exchange of words on the question whether the complainant would take water first from the water tanker but the simple matter of altercation, in my view, does not give the right to the accused of private defence by firing at the complainant or the injured Deep Chand. It is true as held in Mohd Ramzani's case that the burden of proof of right of private defence which can be proved by accused on preponderance of probability is lighter in comparison to the burden of proof by prosecution which is on higher side of beyond reasonable doubt. But neither the accused has led in the evidence nor the prosecution witnesses have supported the accused on the question of right of his private defence. The Mohd Ramzani's case is also distinguishable on facts. The firing of gunshot at the complainant in itself is sufficient to attract offence under sec. 307 IPC though bullet has not hit the complainant but another person injured Deep Chand. As there was no intention of accused to voluntarily cause hurt to injured Deep Chand, offence under section 324 IPC is not attracted.
In the given facts and circumstances of the case when the accused was armed with revolver at the spot, it is difficult to believe that anybody or one or more person from the public would try to attack him. The fact that the accused had arm in his possession is sufficient to deter the public person at the spot from daring to attack him. The possession of arm by the accused at the spot also justifies the prosecution case that it was the accused who forcibly removed the 12 water bucket of the complainant Sohan Lal and also pushed him and on being protested by him and the others he fired on the complainant which missed the complainant and hit the injured Deep Chand. Under the circumstances the right of private defence is not available to accused.
In view of the above discussion I hold that the prosecution has been able to prove its case beyond reasonable doubt for the charge under section 307 IPC. Accused is convicted for the charges under section 307 IPC. As regards offence under section 324 IPC the same is not attracted in the given facts and circumstances of the case so accused is acquitted of the charge under section 324 IPC. Let the accused be heard separately on the point of sentence.
Announced in open court ( S.K. SARVARIA )
Dated: 11.9.2008 ADDL. SESSIONS JUDGE
NEW DELHI
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Sessions Case No. 18/2006
State Vs Jagan son of Ram Swaroop
R/o A91/92, Tigri Colony
New Delhi
FIR No. 913/05
U/s 307 IPC
Police Station Sangam Vihar
ORDER ON SENTENCE
I have heard learned Addl. Public Prosecutor for the State assisted by learned counsel for the complainant and also learned counsel for the convict.
On behalf of the prosecution deterrent punishment is sought for the convict who has already been convicted under section 307 IPC vide judgment dated 11.9.2008 by this court.
Learned counsel for the convict has argued that the convict has clean antecedents and the gun used was licensed gun and in the incident shot was fired at the complainant who did not suffer any injury but another person standing nearby was injured. It is also argued that the convict had suffered the 14 trial for more than two years and so a lenient view may be taken.
Although the offence under section 307 IPC for which the convict is convicted is of serious nature but the fact that the complainant on whose shot was aimed did not suffer any injury and also keeping in view the fact that the accused/convict who used licensed revolver in the incident is not a previous convict, I am of the view that the sentence of imprisonment on somewhat lower side with imposition of fine making substantial part of it compensation to the injured who was standing nearby would meet the ends of justice in this case. Therefore, I sentence the convict to undergo Rigorous Imprisonment for Three years and also to pay fine in the sum of Rs 21,000/ out of which Rs 20,000/ shall be paid to the injured Sh Deep Chand s/o Sh Babu Lal r/o A37, J.J. Colony, Tigri, Delhi. In default of payment of fine the convict shall undergo Simple Imprisonment for Six Months.
The period of detention already undergone by the convict during investigation and trial of the case shall be set off against the term of imprisonment imposed against him by this order as provided under section 428 Cr. P.C. Copy of judgment and order on sentence be given to the convict. The order on sentence be sent to the server (www delhidistrictcourts.nic.in) The file be consigned to record room.
Announced in open court ( S.K. SARVARIA )
dated: 15.9.2008 ADDL. SESSIONS JUDGE
NEW DELHI
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