Delhi District Court
State vs . 1)Pradeep Kumar (Expired) on 25 April, 2019
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441018/16
State Vs. 1)Pradeep Kumar (Expired)
S/o Sh. Nafe Singh
R/o Village Nanak Herry, New Delhi.
2)Sandeep @ Sonu (PO)
S/o Sh. Rohtash Singh
R/o H.No. RZ-70, Baba Haridass
Colony, near Baba Harisass
premises School, Jharoda Kalan, New
Delhi.
3)Jaiveer @ Monu,
S/o Sh. Randhir Singh,
R/o Village Nanak Heri, New Delhi.
FIR No. : 203/10
Police : Chhawla
Station
Under : 307/506/34 IPC & 25/27
Sections Arms Act.
Date of Institution of case : 17.09.2012
Date of Assignment to this court : 07.07.2017
at the stage of prosecution evidence
Date of Arguments : 22.04.2019
SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.1/31
Date of Decision : 25.04.2019
JUDGMENT:
1. Brief facts of the case of prosecution are that on 18.12.2010 at about 10.30 p.m. an information was received in PS Chhawla vide DD no. 55B. On receipt of the same, SI Akhilesh Bajpai reached the spot in front of house of Jai Prakash, Village Nanak Heri, New Delhi at about 10.45 p.m. along with Ct. Bhullan Tyagi where Sh. Hans Raj was found and his statement was recorded by SI Akhilesh Bajpai in which he stated that he was returning to his home from his office in his accent car No. DL 9CQ 8001 and when at about 10.15 p.m., he reached in front of house of Jai Prakash at Village Nanakheri, New Delhi, he found that one Maruti Swift car bearing no. 0707 was parked in the gali. Since, there was no passage for SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.2/31 his car to go further, he blew horn of his car and on this, the said Maruti Swift car was taken back. He also reversed his car and on finding no passage, he again blew horn. On this, accused Pradeep came out of his Maruti Swift Car, having a pistol of black colour in his hand and fired on him. Accused Jaiveer @ Monu and Sandeep @ Sonu, were also with accused Pradeep at that time when the accused Pradeep fired towards him. Accused Pradeep fired another round after putting his hand in his car on the conductor's side. Accused Pradeep caught hold of his neck as a result of which his gold chain was broken and the same was snatched by accused Pradeep. He also snatched his mobile phone having No. 9212428610. He came out from his car. Accused Sandeep @ Sonu and Jaiveer @ Monu gave beatings to him. He informed the police on telephone no. 100. After the SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.3/31 incident, the accused had run away from the spot.
2. FIR in the present case was registered and during investigation, SI Akhilesh Bajpai prepared site plan at the instance of complainant Sh. Hans Raj.
3. Sh. Hans Raj produced a live cartridge before SI Akhilesh Bajpai who prepared sketch and thereafter seized the same. On 12.02.2011, co-accused Pradeep was apprehended by SI Sanjeev Kumar Yadav along with another person namely Vijay. A Pistol and two live cartridges were recovered from the possession of co-accused Pradeep. The said pistol was used by him in the present case. A separate case was got registered by SI Sanjeev Kumar Yadav vide FIR No. 37/11 at PS Crime Branch U/S 25 Arms Act and the recovered cartridges and SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.4/31 pistol were seized.
4. On 26.02.2011, co-accused Pradeep was arrested in the present case by SI Akhilesh Bajpai and his disclosure statement was recorded.
5. On 21.06.2011, accused Jaiveer @ Monu and co-
accused Sandeep @ Sonu were arrested by SI Akhilesh Bajpai.
6. On 23.06.2011, SI Akhilesh Bajpai seized the photocopies of relevant documents of case FIR no. 37/11 PS Crime Branch. The exhibits pertaining to this case were sent to FSL and the same were examined in the FSL. After completion of the investigation, charge-sheet was filed in the court. SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.5/31 Charge against the accused:
7. On 20.09.2013, the charge for the offence under Section 307/506/34 IPC was framed against accused Pradeep Kumar, Sandeep and Jaiveer @ Monu and charge for the offence under section 27 Arms Act was framed against accused Pradeep by my Ld. Predecessor wherein they pleaded not guilty and claimed trial.
Witnesses examined :
8. In order to prove its case, prosecution examined 09 witnesses.
9. PW-1 HC Gyan Chand recorded the information about the present incident on 18.12.2010 at Police Control Room and proved it as Ex.PW1/A. SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.6/31
10. PW-2 Sh. Hansraj is the complainant/injured in the present case. His deposition will be considered later on.
11. PW-3 SI Sanjeev Yadav deposed that on 12.02.2011. Ct. Rajeev of Crime Branch informed him about having received a secret information that one person namely Vijay R/o village Jhatikara would come to Jhatikara road near Jhatikara village at about 5.00 p.m. for supplying weapon. A raiding party was constituted headed by him consisting of Ct. Rajeev, HC Virender, SI Naresh and some other police officials. At about 5.00 p.m. one Maruti Swift car bearing no. HR 99-6031 came on the road and stopped at a distance of about 20 meters. One person came and stood near the said car. The secret informer pointed out that the said person was namely SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.7/31 Vijay resident of Village Jhatikara. All the members of raiding party apprehended the said person along with another occupant of the car who was on driver seat, whose name was revealed as Pradeep. On search of accused Pradeep, an English Pistol was recovered from left side dub of his pant. It was found engraved on the pistol ''only for Italy'' and there were two marks like fish and on checking, two live cartridges were recovered from the magazine. On search of Vijay, one magazine containing six live cartridges were recovered. A case for the offence under section 25/54/59 Arms Act was got registered vide FIR no. 37/11 at PS Crime Branch.
12. PW-4 SI Jagdish Kumar deposed that on 01.10.2011, the investigation of this case was marked to him. During investigation, he came to SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.8/31 know that accused Pradeep was arrested by the Crime Branch and the weapon which was used in the present case was also recovered by the crime branch from him. Thereafter, he sent SI Akhilesh Vajpayee who brought the said weapon in this case at PS Chhawla. He sent the weapon of offence i.e. pistol and one live cartridge which was already recovered from the spot by the previous IO SI Akhilesh Vijpayee to the FSL Rohini. After receiving the ballistic expert report from FSL Rohini, New Delhi, it has been clear that the live cartridge which was recovered by the previous IO from the spot was used in this pistol by the accused. Thereafter, he added section 307/506 IPC in this case as per the supplementary statement of complainant Hansraj.
13. PW-5 HC Navita proved the copy of FIR SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.9/31 Ex.PW5/A and endorsement on the rukka Ex.PWE5/B.
14. PW-6 W.Ct. Jyoti was working as Computer operator and proved the contents of the FIR as the same were typed by her.
15. PW-7 HC Virender was also member of the crime team headed by SI Sanjeev who apprehended accused Vijay and Pradeep. He also deposed on the line of prosecution story.
16. PW-8 Ct. Bhullan Tyagi was member of the investigating team with SI Akhilesh Bajpayee and deposed on the line of prosecution.
17. PW-9 SI Akhilesh Bajpayee is IO of the case. He deposed on the line of prosecution story. His deposition will be considered later on. SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.10/31
18. Vide order dated 27.03.2019, prosecution evidence was closed on the submissions of Ld. Addl. PP as all the cited witnesses were examined.
19. On 01.04.2019, the statement of accused Jaiveer @ Monu under Section 313 Cr.P.C. was recorded wherein all the incriminating evidence was put to him to which he pleaded his innocence and took the defence that PW-2 Sh. Hans Raj got registered a false case against him in connivance of one police official of crime branch namely Sh. Rajeev who was his close friend. Accused Jaiveer @ Monu did not lead any evidence in his defence.
20. It is worthy to mention here that at the stage of prosecution evidence, accused Pradeep expired and therefore vide order dated 21.10.2016, proceedings SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.11/31 against him were abated. Further vide order dated 08.10.2018, accused Sandeep @ Sonu was also declared PO as he stopped appearing in the court and absconded himself.
21. I have heard Addl. PP for the State and Sh. Manish Sehrawat, Ld. Counsel for accused Jaiveer @ Monu. The material on record has also been perused.
22. It is submitted by Ld. Addl.PP that the prosecution has successfully proved its case against accused Jaiveer @ Monu beyond any reasonable doubt by examining the reliable witnesses. It is further stated that the weapon of offence i.e. pistol and live cartridge were recovered and the FSL report Ex.PW9/G supported the case of the prosecution and therefore considering the categorical deposition of all SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.12/31 the prosecution witnesses, accused Jaiveer @ Monu be punished for the offence charged.
23. On the other hand, Ld. Counsel for the accused submitted that accused has been falsely implicated in the present case at the instance of Ct. Rajeev, from Crime Branch who is friend of complainant Hansraj. It is further argued that case property i.e. pistol and cartridge have been planted upon the co- accused and no such incident of alleged firing had ever been taken place. It is further argued that there are material contradictions in the testimonies of prosecution witnesses and prosecution has failed to prove its case against accused beyond any reasonable doubt and as such he deserves to be acquitted.
SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.13/31 FINDINGS
24. The gist of the case is that on 18.12.2010, at about 10.15 p.m. in front of house of Jai Prakash at Village Nanak Heri, New Delhi, accused Jaiveer @ Monu and co-accused Pradeep and Sandeep (PO) gave beatings and extended threats to Sh. Hans Raj. It is further alleged that accused Pradeep fired towards complainant Sh. Hans Raj with a pistol. Since proceedings against accused Pradeep have already been abated and accused Sandeep has been declared PO, I will deal only qua accused Jaiveer @ Monu for the offence charges i.e. under section 307/506/34 IPC.
25. Before going into the merits of the case, it is pertinent to quote here section 307/506/34 IPC which SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.14/31 reads as under:
Section 307 in The Indian Penal Code
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
Section 506 in The Indian Penal Code
506. Punishment for criminal intimidation.
--''Whoever commits, the offence of criminal in- timidation shall be punished with imprisonment of either description for a term.........'' Section 34 in the Indian Penal code.
''34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.'' SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.15/31
26. In order to attract the provisions of section 307/506/34 IPC, the testimonies of PW-2 Sh. Hansraj is very material. PW-2 Sh. Hanraj is complainant in the present case. Apart from the testimony of PW-2 Sh. Hansraj, testimony of PW-9 IO SI Akhilesh Bajpai is also very material. All the case of the prosecution qua offences under section 307/506/34 IPC hinged on the testimonies of these two material witnesses. Before proceed further, I will first consider the testimonies of these two material witnesses and other important witnesses.
27. PW-1 Sh Hansraj deposed that on 18.12.2010, he was returning to his home from his office in his accent car No. 8001 and when at about 10.15 p.m., he reached in front of house of Jai Prakash at Village Nanakheri, New Delhi, he found that one Maruti Swift SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.16/31 car bearing no. 0707 was parked in the gali and there was no passage for his car to go further. He blew horn of his car and on this the said Maruti Swift car was taken back. He also reversed his car and on finding no passage, he again blew horn. Accused Pradeep came out of his Maruti Swift Car, having a pistol of black colour in his hand and fired on him. Accused Jaiveer @ Monu and Sandeep @ Sonu, were also with accused Pradeep at that time when the accused Pradeep fired towards him. Accused Pradeep fired another round after putting his hand in his car on the conductor's side. Accused Pradeep caught hold of his neck as a result of which his gold chain was broken and the same was snatched by accused Pradeep. He also snatched his mobile phone having No. 9212428610. He came out from his car. Accused Sandeep @ Sonu and Jaiveer @ Monu gave SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.17/31 beatings to him. He informed the police from the mobile phone of his friend. After the incident, the accused had run away from the spot. Police came to the spot and he had shown the cartridge lying at the spot to the police which was seized and sealed by the police vide memo Ex.PW2/B. He also had shown the place of occurrence to the police. His statement was recorded by the police. He also identified pistol as Ex.P-1 and two empty cartridges Ex.P-2 collectively.
28. PW-9 SI Akhilesh Bajpai deposed that on 18.12.2010, on receipt of DD No. 55B Ex.PW9/A, he along with Ct. Bhulan Tyagi, reached the spot at in front of house of Jai Prakash, Village Nanakheri, New Delhi at about 10.45 p.m. where complainant Hansraj met them. He recorded his statement and thereafter they returned to the police station. On the next day, SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.18/31 after discussion with Senior Officer and verifying the facts, he prepared rukka Ex.PW9/B and presented the same before the Duty Officer at about 08.45 a.m. and got registered the present case vide FIR already Ex.PW5/A. During investigation, he prepared site plan Ex.PW8/B at the instance of the complainant. Complainant Hansraj produced the live cartridge of 9 mm. He prepared a sketch Ex.Pw8/A of the said cartridge and thereafter the cartridge was kept in a plastic dibbi and the same was converted in to a pulanda and was sealed with the seal of AB. The seizure memo of the pulanda of live cartridge is Ex.PW2/B. On 26.02.2011, accused Pardeep Kumar was arrested by him in the present case in jail No.1, Tihar Jail Complex, New Delhi after receiving the information from the Crime Branch about his arrest in case FIR No. 37/11, under Section 25 Arms Act, PS SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.19/31 Crime Branch, New Delhi. The arrest memo of accused Pardeep Kumar is Ex.PW9/C. He was interrogated and his disclosure statement was recorded and the same is Ex.PW9/C1. On 21.06.2011, accused Jaiveer @ Monu and Sandeep @ Sonu, were arrested by him vide their arrest memos Ex.PW9/D and Ex.PW9/E respectively. On 23.06.2011, Ct. Anil produced the photocopies of the relevant documents of case FIR No. 37/11 PS Crime Branch referred above and he seized the same vide seizure memo Ex.PW9/F. He also proved the FSL Report pertaining to this case is Ex.PW9/G. He also identified one live cartridge as Ex.P-3.
29. It is the defence of the accused Jaiveer that case property i.e. pistol and cartridges have been planted upon the co-accused and this case has been falsely SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.20/31 prepared at the instance of Ct. Rajeev from Crime Branch and no such incident of firing has ever taken place.
30. Perusal of record reveals that in his testimony PW-2 Sh. Hansraj, categorically deposed that police came to the spot and he had shown the cartridge lying at the spot to the police which was seized and sealed by the police vide memo Ex.PW2/B whereas PW-9 SI Akhilesh Bajpai has deposed that he had not recovered or seized any article (live cartridge or used cartridge) at the spot and the live cartridge Ex.P-3 was handed over to him by complainant on the next date i.e. on 19.12.2010. PW-9 SI Akhilesh Bajpai has further deposed that he made efforts to trace used cartridge at the spot on 18.12.2010 when he reached at the spot but it could not be traced being darkness. SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.21/31 To counter this deposition of PW-9 SI Akhilesh Bhapai, Ld. Counsel for the accused has taken me to the cross examination of PW-2 Sh. Hansraj wherein he categorically deposed that at the time of incident, there was no fog and there was street light at the spot. It has also not come on record as to when PW-2 Sh. Hansraj recovered the said live cartridge and if he had found this live cartridge on 18.12.2010 itself, why it was not handed over to IO SI Akhilesh Bajpai when he visited the spot along with Ct. Bhullan Tyagi after receiving DD no. 55B on 18.12.2010.
31. Ld. Counsel for the accused further argued that it is the case of the prosecution that accused Pradeep fired two bullet shots on the complainant Sh. Hanraj but surprisingly both the fires were missed despite the fact that both the fires were fired from a very SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.22/31 close distance which again raises doubt on the story of prosecution. I find contention in this argument of Ld. Counsel for the accused. It has come in the testimony of PW-2 Sh. Hans Raj that accused Padeep fired another round after putting his hand in his car on the conductor's side. He further deposed in his cross examination that at the time of incident, his car was at a distance of about 5 meters from the car of accused persons. So, it is very surprising that two fires were fired from such a close distance and out of which one was fired after putting his hand by accused Pradeep in the car of PW-2 Sh. Hans Raj wherein he was sitting but despite that, the same were missed. Even, there is no evidence/record to show that the case in which PW-2 Sh. Hansraj was sitting at the time of firing, sustained any bullet marks which again raises doubt on the story of SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.23/31 prosecution. It is also the case of the prosecution that alleged pistol was recovered from accused Pradeep on 12.02.2011 when he was apprehended by SI Sanjeev Kumar Yadav along with HC Virender and Ct. Rajeev of Crime Branch in case FIR No. 37/11 PS Crime Branch. Perusal of testimony of PW-3 SI Sanjeev Kumar Yadav it has come on record that accused Pradeep was apprehended when he came in Maruti Swift car bearing no. HR 99-6031 near Jhatikara village towards Najafgarh-Chhawla road. He further deposed that on search of accused Pradeep, an English Pistol was recovered from left side dub of his pant whereas perusal of testimony of PW-7 HC Virender who was also accompanying with SI Sanjeev Kumar Yadav at the time of arrest of accused Pradeep in case FIR No. 37/11, PS Crime Branch, he deposed that accused Pradeep had come in white colour i20 SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.24/31 car bearing no. HR 99 HR 6031. He further deposed that pistol was recovered from the right side of the pant worn by accused Pradeep which is contrary to the statement of PW-3 SI Sanjeev Kumar Yadav who deposed that recovery of pistol was made from left side dub of pant of accused Pradeep. Considering all the facts as discussed above, I am of the view that all the contradictions in the testimonies of prosecution witnesses are material in nature and cannot be ignored. Since, the proceedings qua accused Pradeep Kumar have been abated due to his death and as such, without going into the controversy of the alleged incident of firing by accused Pradeep and the recovery of alleged weapon from him, I would like to discuss the evidence qua accused Jaiveer @ Monu only because the third accused Sandeep @ Sonu has been declared Proclaimed Officer.
SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.25/31
32. As per the case of the prosecution, it was accused Pradeep who had fired on the complainant and accused Jaiveer @ Monu and Sandeep @ Sonu had only given beatings to him. Accused Jaiveer @ Monu has been charged for the offence under section 307/506 IPC with the aid of section 34 IPC. So, in these circumstances, the discussion on the point of law with regard to the common intention to attract section 34 IPC has become necessary.
33. To apply section 34 IPC apart from the fact that there should be two or more accused, two factors must be established;
1) Common intention and;
2) Participation of accused in the commission of an offence.
34. If common intention is proved but no overt act is SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.26/31 attributed to the individual accused, section 34 will be attracted as essentially it involves the vicarious liability but if the participation of the accused in the crime is proved, and common intention is absent, section 34 IPC cannot be invoked. It requires a prearranged plan and per-supposed prior concert. Therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be per-arrangement or premeditated concert.
In Mahboob Shah Vs. Emperor, AIR 1945 PC 118 it was observed that the participation in a criminal act of a group is a condition precedent in order to fix joint liability.
"Common intention implies a prearranged pro- gramme or plan, previous meeting of minds and discussion in between all the persons forming the group."
In Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653 it was specifically observed that in absence of SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.27/31 any cogent evidence, the common intention cannot be es- tablished. It was observed that, "Where there is no indication of premeditation or of a prearranged plan, the mere fact that the two accused were seen at the spot scene or that the two accused fired as a result of which one of the person died and two others received simple in- juries could not be held sufficient to assume com- mon intention."
35. From the evidence brought forward by the prosecution, it has not come on record that the offence in this case was committed after any prearranged programme or preplanned manner. PW- 2 Sh. Hansraj had assigned the role of beating only on the part of accused Jaiveer @ Monu and Sandeep @ Sonu and it was only accused Pradeep Kumar who had fired on him. No evidence has come on record on the basis of which it can be said that there was some prearranged programme or preplan between the accused persons and the facts constitute that the SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.28/31 incident had happened all of sudden on the accused being annoyed due to blowing horn of his car by complainant. The prosecution has not been successfully able to prove the prior meeting of mind between the accused persons to commit the offence charged. It has also not come on record on the basis of which it can be said that accused Jaiveer was having knowledge that accused Pradeep Kumar was in possession of pistol. It has also not come on record that accused Jaiveer had asked accused Pradeep Kumar to fire on complainant Sh. Hansraj. In these circumstances, and the law discussed above, it can not safely be held that accused Jaiveer @ Monu was sharing the common intention with the accused Pradeep Kumar for firing on the complainant. Therefore, in absence of attraction of section 34 IPC, accused Jaiveer @ Monu is acquitted for the offence SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.29/31 punishable under section 307 IPC.
36. As far as the offence punishable under section 506 IPC is concerned, the only eye-witness of the incident i.e. PW-2 Sh. Hansraj has nowhere deposed about any threat extended to him by accused Jaiveer @ Monu. So, accused Jaiveer @ Monu is acquitted also for the offence punishable under section 506 IPC.
37. However, the prosecution has successfully proved that the accused Jaiveer @ Monu had given beatings to the complainant Sh. Hansraj as he has categorically deposed about the beatings given to him by accused Jaiveer @ Monu which constitute the offence punishable under section 323 IPC. Therefore, he is held guilty and convicted for the offence punishable under section 323 IPC. Order on sentence is being passed separately and thereafter file be SC No. 441018/16 State Vs. Pradeep Kumar & Ors. Page No.30/31 consigned to Record Room.
38. Since accused Sandeep @ Sonu is PO, file be taken up and revived again as and when accused Sandeep @ Sonu is arrested and brought before the court. Digitally signed by AJAY AJAY GOEL Date:
GOEL 2019.04.29
13:18:00
+0530
Pronounced in the open court. (Ajay Goel)
Dated: 25.04.2019 Additional Sessions Judge
Special Judge (NDPS),
Dwarka Courts, New Delhi
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