Delhi District Court
Also Placed Upon The Judgements, A) Jage ... vs State on 8 May, 2023
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IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS, DELHI.
DLNT01-000627-2015
SC No. 57866/16
FIR No. 1195/14
U/s. 307 IPC read with 27 Arms Act
P.S. Narela
STATE
Vs
Manjeet @ Hazari
S/o Sh. Ishwar ingh
R/o House no. 145, Main Road
Dariyapur Kalan, Delhi.
Date of Institution : 16.01.2015
Arguments Heard on : 27.02.2023
Judgment Passed on : 08.05.2023
Decision : Convicted
JUDGMENT :
1. The abovenamed accused has been sent to face trial for the offence punishable under Section 307 IPC read with 25/27/54/59 Arms Act (hereinafter referred to as 'Indian Penal Code').
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2. The facts of the case in brief as per the chargesheet filed by the prosecution are that the FIR in question was got registered consequent to the receipt of information vide DD no. 74 B dated 17.09.2014. At about 7.36 pm, it was informed that a person has been shot near Haraveli, MCD Nala. The said information was assigned to ASI Surender who reached at the spot alongwith Ct. Rakesh. There they found blood stained objects. It was also found by them that two injured have been shifted to M.V. Hospital, Pooth Khurd. ASI Surender went to the hospital and it was informed that one of the injured has already been shifted to Saroj Hospital and the other one at Asha Shakti Multispeciality Hospital, Pooth Kalan, Kanjhawala Road, Delhi. He thereafter, went to Saroj Hospital where injured Sumit was found admitted with the alleged history of gunshot injury. Thereafter the IO went to Asha Shakti Multispeciality Hospital where injured Monu was too found to be admitted with the alleged history of gunshot injury. Both of the injured were unfit for statement. Accordingly, the rukka was prepared by the IO and FIR was got registered.
2.1 During the course of the investigation, statement of eye witnesses were recorded. The statement of injured Sumit 3 was recorded on 23.09.2014 who named the accused as the person who had fired upon him. The accused was accordingly, arrested but recovery of the weapon could not be effected. On completion of the investigation, chargesheet was filed in the court.
3. The cognizance of the offences was taken by Ld. MM vide order dated 13.01.2015 and after compliance under Section 207 Cr. PC, the matter was committed to the Session Court on the same day.
4. Charge for the offence under section 307 IPC read with section 27 of Arms Act was framed on 30.06.2015 against the accused to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove, its case against the accused persons has examined 26 witnesses in all.
6. PW-1 Prashant is the eye witness, but he turned hostile and deposed that on 17.09.2014, he was coming from his Aunt's house and going towards his own house and when he reached Toll tax, Dariyapur, Delhi. He found his friend Sumit lying in injured condition. He removed the injured Sumit to Sant Som Hospital, Bawana and thereafter, M.V. Hospital. Brother of Sumit also came to the said hospital and took him to Saroj 4 Hospital. On the remaining all aspects, he turned hostile and did not support the case of the prosecution.
7. PW-2 Krishan was also claimed to be eye witness but he too turned hostile and did not support the case of the prosecution in its entirety.
8. PW-3 Sumit is the star eye witness / injured. He deposed that on 17.09.2014, he alongwith his friend Prashant were on motorcycle and on another motorcycle, his friends Deepak and Krishan were riding. At about 6.00 pm, they were going to the side of Badi Nehar situated in their village and there was Harevali Toll tax barrier and ahead of it, there was one iron bridge. They passed the said road at about 6.00 pm. The accused Manjeet @ Hazari was smoking hukka while sitting on a wooden bed. While they were passing from the said toll barrier, the accused Manjeet @ Hazari started hooting and passed indecent gestures towards him. They all went ahead as they were going to meet some friends. After about half an hour, they came back and passed through the same barrier on a motorcycle. He was the pillion rider and the motorcycle was being driven by his friend Prashant. Thereafter, he stopped the motorcycle and after getting down, he went to the accused and asked him about the reasons of 5 hooting and passing of indecent gestures. The other motorcycle accompanying him also stopped there. The accused started abusing him. He objected upon which accused pulled out a pistol from his dub and fired five - six shots. Three shots hit his right arm and one on his right side of the chest. After firing, accused ran away towards his village. One of the shot accidentally hit the employee working in the said toll barrier. PW-3 Sumit was taken to Pooth Hospital by his friend Prashant while he was in semi unconscious condition. He regained consciousness for some moment and found himself in Saroj Hospital. He regained consciousness on 23.09.2014 and police officials met him and recorded his statement. The reasons for dispute between them was due to the transaction of sale proceed of a plot in his name. The accused was demanding share in the sale proceed. The accused had already threatened him for the consequences due to the said dispute. He identified his clothes worn by him on that day as Ex. P-1.
9. PW-4 Monu is also the injured. He deposed that on 17.09.2014, he was working at the Toll tax barrier. He was counting collection of the money slips issued by the employees. At about 6.45 pm, he went to the hand pump for drinking water. 6 At the same time, two bikes came and were passing through that toll tax barrier. That while he was taking water in a bottle, he heard sudden noise of fire shots and one fire shot hit him on his right buttock and he fell down. At that time, Manoj who used to issue slips at the toll tax and flying officer Manjeet @ Hazari were present. He was taken to M.V. Hospital, Pooth Khurd and thereafter, to Brahm Shakti Hospital.
10. PW-5 Ct. Rakesh deposed that he was on emergency duty at PS Narela on 17.09.2014 and DD no. 74 B was received regarding firing at Haraveli near MCD Nala and he accompanied ASI Surender Singh to the spot where they came to know that the injured have been shifted to the hospital. IO went to the hospital and he remained at the spot. Crime Team was called at the spot. After some time, IO reached at the spot and crime team inspected the spot. One blood stained bedding, one tehna / wooden stick, one metal hukka with broken chilam having blood stains, blood stained concrete and earth control sample concrete were taken into possession vide seizure memo Ex. PW-5/A. The said articles were wrapped in a piece of cloth and converted into pullanda. The blood stained concrete and earth sample were also put in a container and converted into 7 pullanda. No eye witness was found. IO prepared the rukka and sent him to the PS for getting the FIR registered. He identified the case property i.e. the mattress which was found lying on the cot at the spot as Ex. P-2 ; the danda found lying on the bedding of the cot as Ex. P-3 and hukka with chilam found lying on the bedding of the cot as Ex. P-4.
11. PW-6 Manoj Kumar deposed that on 17.09.2014, he was working as Booth Operator at MCD Toll Plaza, Haraveli-
2. On that day, he was on duty from 7.00 am to 7.00 pm alongwith his colleague Mukesh @ Monu. Manjeet @ Hazari was working as Flying Officer with them and was sitting on a cot and smoking hukka. Around 7.00 pm, while they were performing their duty, they heard sound of fire shots. Monu came out of the tent and when he came out, he saw that Monu was bleeding. Manjeet @ Hazari was not present there. No other person was found present at the spot. Monu was taken to the hospital.
12. PW-7 Ct. Satish Kumar is the DD writer at PS Narela who recorded the information vide DD no. 74 B Ex. PW- 7/A received at 7.36 pm. Another information was received at 8 10.05 pm regarding the admission of injured at Asha Shakti Hospital, Kanjhawala and he recorded DD no. 103B Ex. PW-7/B.
13. PW-8 Dr. Sandeep ; PW-11 Dr. P.K. Bhardwaj ; PW-12 Dr. R.P. Singh and PW-13 Dr. Akash Jain are the treating doctors at Saroj Hospital who had examined and treated injured Sumit who came in the hospital on 17.09.2014 with the alleged history of gunshot injury. The MLC stands proved by Dr. Sandeep is Ex. PW-8/A, the summary of the treatment given by PW-11 Dr. P.K. Bhardwaj, PW-12 Dr. R.P. Singh and PW-13 Dr. Akash Jain is Ex. PW-11/A.
14. PW-9 Ct. Raj Kumar and PW-10 SI Randhir were part of the Crime Team who visited the spot on 17.09.2014 after receiving the information from control room. The photographer PW-9 clicked the photographs Ex. PW-9/B1 to Ex. PW-9/B8 and the negatives of the same are Ex. PW-9/A1 to Ex. PW-9/A8. PW-10 SI Randhir had prepared the scene of crime report Ex. PW-10/A.
15. PW-14 ASI Naresh Kumar has proved the DD register in respect of DD no. 57 A as Ex. PW-14/1.
16. PW-15 Ct. Jaipal joined the investigation of the present case on 16.10.2014 when accused Manjeet was arrested 9 from Bus Terminal, Narela. Ct. Rambir and ASI Surender were with him. Accused was arrested vide arrest memo Ex. PW-15/1 and personally search vide memo Ex. PW-15/2. His disclosure statement Ex. PW-15/3 was also recorded. He was taken on police custody remand on 21.10.2014 and efforts were made to recover the pistol from Harevali Nehar but no pistol was recovered. The memo in this regard is Ex. PW-15/5.
17. PW-16 Ct. Rambir also deposed on the similar lines of PW-15 Ct. Jaipal.
18. PW-17 Deepak deposed that around 2-3 years back, he came to know that their co-villager Sumit has been shot and has been admitted in M.V. Hospital. He further deposed that accused Manjeet and Sumit used to be friends and were seen roaming together number of times much prior to the incident. On remaining aspects, he turned hostile and did not support the case of the prosecution.
19. PW-18 Sh. Mathew Cherian, Manager (Admn.), SMSAAMW Tollways Pvt. Ltd. has proved the attendance record of the employees posted at Toll Plaza, Harewali Nehar, Dariyapur Jhall, Delhi in the month of September 2014. The attendance register is Ex. PW-18/1.
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20. PW-19 HC Om Parkash is the MHC (M) who deposed that on 18.09.2014, he deposited six pullandas sealed with the seal of 'SS', one pullanda sealed with the seal of Saroj Hospital alongwith one sample seal and one pullanda sealed with the seal of 'ASH' along with the sample seal in the malkhana vide entry no. 588 in the register no. 19 Ex. PW 19/1(OSR). On 22.09.2014, he also deposited one pullanda containing bullet sealed with the seal of Saroj Hospital in malkhana vide entry no. 598 Ex. PW 19/2(OSR).
20.1 He further deposed that on 20.11.2014, five sealed parcels sealed with the seal of 'SS', one sealed parcel sealed with the seal of 'ASH', two sealed parcels sealed with the seal of Saroj Hospital alongwith two sample seals of Saroj hospital and one sample seal of ASH were sent to FSL through Ct. Hem Raj vide Road Certificate No. 215/21/14 Ex. PW-19/3. He has also proved the acknowledgement from FSL in this regard as Ex. PW 19/4. On 20.11.2014, one sealed pullanda sealed with the seal of 'SS' had also been sent to FSL through Ct. Hem Raj vide Road Certificate No. 216/21/14 Ex. PW 19/5. He had also proved the acknowledgement from FSL in this regard as Ex. PW 19/6. 11
21. PW-20 Dr. Santosh Kumar Jena, had examined the patient Monu at Asha Shakti Multi Specialty Hospital, Main Kanjhawala Road, Pooth Kalan, Delhi. He proved the MLC of Monu as Ex. PW-20/1.
22. PW-21 Vikram and PW-22 Hazirul Sheikh were the divers who were employed by the police to search the pistol in Harewali Nehar. But they turned hostile. They denied that they had made any search.
23. PW-23 SI Surender Singh is the investigating officer who deposed that on 17.09.2014, on receipt of DD No.74- B, he alongwith Ct. Rakesh reached at the place of occurrence near Toll Tax Point, Harevali Jhaal, Delhi. There they came to know that the injured persons have already been taken to hospital. During inspection of the spot, he found that a cot was lying there with beddings and a piece of wood and hukka were also there .There were blood stains on the beddings, piece of wood and hukka. He reached at M.V. Hospital, Pooth Khurd, Delhi where he came to know that two persons with gun shot injuries had come to the hospital, out of which one has been taken to Saroj Hospital, Sector-14, Rohini and the other one has 12 been taken to Asha Shakti Hospital, Main Kanjhawala Road, Pooth Kalan, Delhi.
23.1 Injured Sumit was found admitted with alleged history of gun shot injuries in the Saroj Hospital. He collected MLC of injured Sumit and he seized one sealed pullanda containing blood stained clothes of injured Sumit alongwith a sample seal vide seizure memo Ex. PW-23/1. He further deposed that he also collected the MLC of injured Monu from Asha Shakti Multi Specialty Hospital, Main Kanjhawala Road, Pooth Kalan, Delhi. At Asha Shakti Hospital, Dr. Santosh Kumar handed over to him one sealed pullanda containing blood stained clothes of injured Monu alongwith a sample seal and the same were seized by him vide seizure memo Ex. PW-23/2. No eye witness of the incident met him either at the spot or at M.V. Hospital or at Saroj Hospital or at Asha Shakti Hospital. 23.2 Mobile crime team was called at the spot who inspected and photographed the spot. He deposed that one mattress (gadda) having blood stains from the cot lying at the spot, piece of wood having blood stains, hukka and broken chilam were picked up from the spot and were converted into separate cloth pullandas. The same were sealed with the seal of 13 SS. Blood stained concrete and concrete without blood stains were also lifted from the spot and the same were converted into separate pullandas and sealed with the seal of SS and seized vide seizure memo Ex. PW-5/A. Till that time, no eye-witness of the incident met him at the spot. On the basis of DD No.74-B and MLCs of injured persons, he prepared rukka Ex. PW-23/3 and handed over the same to Ct. Rakesh for registration of FIR. He prepared the site plan of place of occurrence Ex. PW-23/4. He deposited the seized articles in malkhana.
23.3 The spot was again minutely inspected by him and Ct. Hemraj and during inspection, two empty cartridge shells were found lying in the grass. The said cartridge shells were lifted and sketches Ex. PW-23/5 were prepared and measurements of the cartridge shells were noted down. The empty cartridge shells were put in a plastic dibbi and after converting the same into pullanda, same were sealed with the seal of SS and seized vide seizure memo Ex. PW-23/6. He alongwith Ct. Hem Raj returned at PS and seized pullanda was deposited in malkhana.
23.4 He further deposed that on the said date, one Prashant had come to PS claiming himself to be an eye-witness 14 of the incident in question and he recorded the statement of said Prashant. He also recorded the statement of one Monu on that day who had sustained bullet injury during the incident. 23.5 On 20.09.2014, he recorded statements of witnesses Krishan and Deepak under section 161 Cr. PC. However, the statement of injured Sumit could not be recorded even on that day as he was unfit for statement. On 22.09.2014, he again reached at Saroj Hospital, Rohini, Delhi, however, even on that day injured Sumit was unfit for statement. On that day, one sealed pullanda containing one bullet recovered from body of injured Sumit alongwith sample seal was handed over to him from the Saroj Hospital and he seized the same vide seizure memo Ex. PW-23/7. After returning to PS, he deposited the seized pullanda and sample seal in malkhana.
23.6 On 23.09.2014, he again visited Saroj Hospital and on that day, injured Sumit was declared fit for statement and then he recorded statement of injured Sumit under section 161 Cr. PC. 23.7 On 16.10.2014, on receipt of a secret information, he alongwith Ct. Rambir and Ct. Jaipal and informer reached Bus Terminal Narela, Delhi. On the pointing out of secret informer, the accused was apprehended and he was arrested and personally 15 searched vide memos Ex. PW-15/1 and Ex. PW-15/2. Accused also made a disclosure statement Ex. PW-15/3. Thereafter, JC remand of accused was taken and the TIP of the accused was fixed for 20.10.2014 and on the said date, PW-23 alongwith injured Sumit reached at Rohini Jail but accused refused to participate in the TIP. Thereafter, on 21.10.2014, one day PC Remand of accused was taken. The pointing out memo Ex. PW- 15/4 was prepared. Efforts were made to trace out the pistol but same could not be recovered and memo Ex. PW-15/5 was prepared in this regard. On 22.10.2014, accused was produced before the court and was sent to JC.
23.8 On 03.11.2014, the MLC of injured Sumit was deposited at Saroj Hospital for opinion and the result of the same was collected on 12.11.2014 in which the injuries sustained by him were opined to be dangerous and of Monu to be grevious. PW-23 recorded statement of PW Manoj who was the attendant of Toll Plaza, Dariyapur Canal on 19.11.2014. The sealed exhibits of this case were sent to FSL on 20.11.2014 through Ct. Hemraj.
23.9 On 26.06.2015, the Doctor at Max Hospital handed one sealed pullanda with hospital seal containing the piece of 16 bullet recovered from the body of injured Monu to PW-23 and he seized the same vide memo Ex. PA-8. He also collected the discharge summary Ex. PA-7 (colly) and FSL result and filed the same in court. He also identified the case property.
24. PW-24 Sh. Harjeet Singh Jaspal, the then Ld. MM proved the TIP proceedings of accused Manjeet @ Hazari who had refused to join it as Ex. PW-24/B to Ex. PW-24/D.
25. PW-25 SI Surender Singh is the duty officer who proved the registration of the FIR as Ex PW-25/1. He also proved the certificate u/s 65 B of Indian Evidence Act as Ex. PW-25/3.
26. PW-26 Ct. Hemraj had joined the investigation with the IO ASI Surender on 18.09.2014. They had gone to Dariyapur Jhaal and they got the spot minutely inspected and during inspection, two used cartridges were recovered from the grass adjacent to the dry canal. The sketch of the said cartridges were prepared by the IO vide Ex. PW-23/5 and they were seized by converting into pullanda, sealed and seized vide Ex. PW-23/6.
On 20.11.2014, he collected eight sealed pullandas in the present case from MHC(M) and deposited at FSL Rohini. 17
27. The accused during the course of trial also admitted formal documents in his statement recorded u/s 294 Cr PC. He admitted the FSL result as Ex. PA-1 ; the forwarding letter to Ballistic Division as Ex. PA-2 ; the report of the Ballistic Division as Ex PA-3 ; the application for FSL result and addition of witness dated 18.03.2016 moved by IO as Ex. PA-4 and its forwarding letter as Ex PA-5 ; the FSL result dated 01.02.2016 as Ex. PA-6 ; the discharge summary of Max Superspeciality Hospital, Shalimar Bagh as Ex. PA-7 and the subsequent opinion regarding the bullet-1 dated 26.06.2015 as Ex. PA-8.
28. After conclusion of the prosecution evidence, the statement of accused was recorded under Section 313 Cr. PC in which the accused claimed innocence and false implication. He further claimed that prior to the present incident, one kalandra was registered at PS Bawana wherein he as well as complainant Sumit were named. The same was disposed of but due to the said kalandra, complainant Sumit was having enmity with him and due to the said reason, he got him falsely implicated in the present case. No defence evidence was led on behalf of the accused.
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29. I have heard Learned Additional Public Prosecutor for the State as well as Sh. Sat Narain Sharma, Ld. Counsel for accused and also considered the material placed on record.
30. Ld. Addl PP for the State argued that the version given by injured PW3 Sumit in the present case has proved their case beyond any reasonable doubt and the defence of the accused regarding false implication has remained unproved. As far as the other witnesses having turned hostile is inconsequential as the testimony of the injured stands on special footing.
31. Per contra, Ld. Counsel for the accused argued that none of the public witness has supported the case of the prosecution except PW-3 Sumit. All his friends who were allegedly accompanying him and were present at the spot at the time of the alleged incident have turned hostile. As far as PW-3 Sumit is concerned, he has given contradictory statement from that of his previous statement recorded under section 161 Cr. PC. It is further argued that weapon in the present case has not been recovered and the CCTV footage too has not been seized despite its availability. It is further argued that not much reliance can be placed upon the statement of PW-3 Sumit as his statement u/s 161 Cr. PC was recorded after four days of the incident for which 19 no explanation has been offered by him. The motive too has reamined unproved as details of the property dispute are missing. Lastly, it was argued that the arrest memo in the present case is manipulated one as is reflected from the record. The reliance is also placed upon the judgements, a) Jage Ram & Ors Vs State of Haryana in Crl Appeal no. 92 of 2015 decided on 28.01.2015 and b) Vasudev Vs State of Madhya Pradesh in Crl Appeal no. 388/2021 decided on 01.02.2022, passed by the Hon'ble Supreme Court of India.
REASONING
32. The case of the prosecution started on receipt of information qua the incident vide DD no. 74 B Ex. PW-7/A. The said information was conveyed by officials of PS Narela to PS Bawana at about 7.30 pm. It was about the incident of gunshot's being fired near MCD Toll Harevali. As the territorial jurisdiction of said area fell within the jurisdiction of PS Bawana, the information was conveyed and acted upon by PW-23 IO ASI Surender Singh. He firstly visited the spot and found the traces of gunshot injuries and it having hit some persons. He found blood stained mattress, one hukka and charpai upon which bloodstains were present. It was further revealed to him that injured has 20 already been shifted to M.V. Hospital from where they were further shifted to Saroj Hospital and Asha Shakti Hospital, Pooth Khurd. He firstly thereafter visited Saroj Hospital where the identity of the injured PW-3 Sumit was revealed. He was further declared to be unfit for statement. As per the MLC, following injuries were noted :
'L/E wound on right chest in Auxillary Line 1 cm X 1 cm ; right arm 1 cm X 1 cm wound right for arm, wound right form arm 1 cm X 1 cm'.
32.1. The second injured Monu was thereafter enquired about at Asha Shakti Hospital. His MLC too revealed the following history of injuries as under :
'L/E entry of bullet injury present 1 X 1 cm Nature of injury OR Pt right Gulited Orpit'.
33. Then the rukka was prepared by PW-23 vide Ex. PW-23/3 which is unrebutted and unchallenged on behalf of the accused. So the crux of the said observations recorded in the MLC as well as the contents of the rukka firstly proves the incident, the issue of two persons having suffered gunshot injuries which are admittedly not challenged and thus has to be observed to be dangerous for life. Both the injured were unfit for 21 giving of the statement when enquired into by IO ASI Surender Singh on the night of 17.09.2014. So as far as the aspect of the incident of gunshots being fired at the spot and two persons having suffered gunshot injuries, the contents of the FIR Ex. PW- 25/1, rukka Ex. PW-23/3, discharge summary Ex. PA-7 coupled with the version of IO PW-23 Surender Singh proves the said part of the occurrence. Further it is proved that both the injured suffered dangerous injuries being shot on the vital parts of their body.
34. Apart from the said admission of the incident in question, there are number of other facts which too are admitted and not disputed on behalf of the accused during the trial. The first issue is the presence of the accued himself as well as of injured PW-3 Sumit and second injured PW-4 Monu at the spot. 34.1 The first issue is with respect to the presence of accused on that day i.e. 17.09.2014 between 6 to 7 pm at the spot. The prosecution has relied upon the ocular version of the co-employees of the accused who were deployed at MCD Toll Tax, Hareveli where the incident took place and his employment record. The injured PW-4 Monu and PW-6 Manoj Kumar were present at the said toll booth being the employees. The injured 22 PW-4 Monu deposed that he was working as Nakedar and his duty hours were 7.00 am to 7.00 pm on 17.09.2014. The incident occurred at about 6.45 pm when he had gone outside to have drinking water from the handpump. He heard noise of some fireshots and one of the fireshot hit his right buttock. He was not able to see the persons who had shot him and only heard the noise of 'Bhago-bhago'. He further elaborated about the presence of other witness PW-6 as well as that of accused herein. He deposed that PW-6 Manoj Kumar was issuing slips at the toll tax and accused was deputed as flying officer at the booth. Both of them were present at the spot at that time. On all the abovesaid aspects, there is no cross examination on behalf of the accused and hence, the version given by PW-4 Monu proves the factum of his presence at the spot being the employee of toll tax as well as that of PW-6 Manoj. His version which is unrebutted also proves the presence of the accused being his co-employee.
35. Similarly, PW-6 Manoj too deposed that he was working as booth operator at the MCD toll booth and his duty hours on that day were 7 am to 7 pm. He further deposed that accused Manjeet was working as Flying Officer and was sitting on a cot as well as smoking hukka. He further elaborated about 23 his presence and exact location at the time when gunshots were fired. He deposed that he was sitting alongwith one Lokesh inside the booth and calculating the money collected when he heard the noise. He immediately came out and saw his co-worker Monu bleeding. At that time, accused Manjeet was not present at the cot where he was seen sitting before the incident. No other person was seen by him at the spot. His version too has gone unrebutted and unchallenged against the accused as the accused preferred not to cross examine him. So the version given by PW6 too proves the presence of accused being the employee at the said spot and sitting on a cot and smoking hukka just prior to the incident. His version also proves the fact that immediately after the incident, the accused was not present on the said cot and therefore the adverse inference has to be drawn that he fled from the spot. The onus was upon the accused to explain about the reasons for his absence immediately after the incident being the fact within his knowledge which he had failed to so do either in his statement u/s 313 Cr. PC or in the arguments.
36. Apart from the said ocular evidence, the prosecution has also placed reliance upon the documentary evidence produced by PW-18 Mathew Cherian, Manager, SMSAAMW 24 Tollways. They were running the said plaza on behalf of MCD in September 2014. He proved the attendance register record Ex. PW-18/A which too proves the presence of the accused Manjeet @ Hazari as well as the other employees who were deputed at that point of time. So the said unrebutted and unchallenged record proves the factum of presence of accused at the spot at the time of the incident being working as a Flying Officer with MCD Toll booth. Apart from that, the fact of he being present outside the said booth being sitting on a cot and smoking hukka too stands proved through the version of PW-6 Manoj.
37. The next material fact which too has gone unrebutted and unchallenged against the accused is the presence of injured PW-3 Sumit at the spot. It is the case of prosecution that said PW-3 Sumit suffered gunshot injury on that day and was admitted firstly at M.V. Hospital and thereafter at Saroj Hospital. His version for the first time was recorded on 23.09.2014 i.e. after five days of the incident. The reason for delay in recording of his statement is that he remained unfit for statement right from 17.09.2014 till 23.09.2014.
2537.1 PW-3 in his testimony deposed that after being fired upon, he was taken to Pooth Hospital by his friend Prashant on his motorcycle and he was semi conscious. He further deposed that he regained consciousness for some moment and found himself at Saroj Hospital. He fully regained consciousness on 23.09.2014. He has been cross examined on the said aspect wherein he has explained about his condition at Saroj Hospital. He explained that he was only slightly conscious at Saroj Hospital. Though he was not able to tell the time when he had regained the said slight consciousness.
37.2 The said fact of the said PW-3 having remained unconscious has also been proved by the concerned treating doctor i.e. PW-11 Dr. P.K. Bhardwaj. PW11 deposed that when the patient was brought to the hospital, he was taken for emergency operation which was life saving one. His abdomen cavity was full of blood and therefore, the emergeny operation was conducted by PW-12 Dr. R.P. Singh assisted by PW-13 Dr. Akash Jain and he himself. On the aspect of consciousness, he in the cross examination deposed that the patient was conscious when he was brought but for surgery, anesthesia was given and thereafter, he went on ventilator. He further deposed that he was 26 fit for statement only on 23.09.2014. There is no reason to discard the said medical record too which is not challenged. The testimony of PW-11 Dr. P.K. Bhardwaj as well as medical record Ex. PW-11/A proves the emergency condition of the injured PW- 3 Sumit. He was operated in emergency in a hurried manner as his injuries were life threatening. The patient remained on ventilator after the surgery and therefore, the delay in recording of the statement of the injured cannot be said to be unnatural and has been well explained by the prosecution.
38. Now coming to the aspect of presence of injured PW-3 Sumit at the spot. He deposed that on that day, he alongwith his friend Parshant ( PW1) were on motorcycle which was being driven by him and they were going to the side of Badi Nehar. The Haraveli Toll Tax was on the way and they passed the said toll tax at about 6.00 pm. His friends PW-17 Deepak and PW-2 Kishan were on separate motorcycle. They passed the said Hareveli Toll Tax at about 6.00 pm where accused Manjeet was sitting on a takht and smoking hukka. Accused started hooting and passed indecent gestures but they moved ahead. After about half an hour, they came back and passed through the same barrier. At that point of time, he was the pillion rider and his 27 motorcycle was being driven by PW-1 Prashant. At that moment only, PW-3 got stopped the motorcycle and went towards the accused by asking him as to the reason for hooting. Thereupon, accused started abusing him and pulled out pistol from his dub. He fired 5-6 shots, three shots hit on his right arm and one shot hit him on his right side chest. One of the shot also hit accidently upon the employee working in the same toll. PW-3 was extensively cross examined on behalf of the accused. But as far as the presence of PW-3 at the spot or that of accused is concerned, there is no denial. Rather the suggestion has been given as under :
"It is wrong to suggest that when we again passing from the said toll tax barrier or that we had decided to fired upon accused or that with the intention we fired at accused Manjeet, who escaped unhurt or that our fire shot hit against one of the employees of toll tax."
So it is apparent from the said suggestion itself that there is unambiguous admission on part of the accused regarding the presence of PW-3 as well as that of accused at the spot. Even PW-1 Parshant who was with injured too has proved the presence of PW-3 at the spot and the testimony of PW-1 on the said aspect 28 is unrebutted and unchallenged. The relevant extract in this regard from his testimony is reproduced as under :
"On 17.09.2014, I was coming from the house of my aunt/bua and going to my house. When I reach toll tax of Village Dariyapur, Delhi there I saw my friend Sumit was lying in injured condition. Sumit was conscious at that time and I removed him to Sant Som Hospital in village Bawana."
39. Now coming to the appreciation of the version given by PW-3 when seen in light of the fact that all of his accomplices / friends namely PW-1 Prashant, PW-2 Krishan and PW-17 Deepak have all turned hostile. Much stress has been led on behalf of the accused during the arguments that the sole uncorroborated version of PW-3 cannot be acted upon in view of the fact that the remaining eye witnesses have turned hostile. They denied that accused had fired upon PW-3 Sumit. Before appreciating the version of said injured Sumit, legal position qua the importance attached to the version of injured witness requires to be considered. In this regard, the reliance is placed upon the judgment of Hon'ble Supreme Court in case titled as Mano Dutt & Anr vs State Of U.P Crl Appeal No 77/2007 decided 29 on 29 February, 2012 and the relevant para is reproduced hereunder:
"23. In our view, non-examination of Nankoo, to which the accused raised the objection, would notmaterially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively 30 discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v.State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan,Annareddy Sambasiva Reddy v. State of A.P.and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab.........."
40. In light of the said legal position as well as the fact of presence of PW-3 Sumit being proved at the spot and he having suffered the gunshot injuries at the vital parts of his body, 31 it is to be seen whether the version given by him as to the incident inspire confidence or not. The said fact becomes relevant in light of the backdrop that his remaining friends have all turned hostile. It is not in dispute that at the time of incident as has been deposed by PW-1 as well as PW-3 Sumit, it is Sumit only who got stopped the motorcycle and went towards the toll barrier where accused was allegedly sitting on a cot. His friends never accompanied him, though they were present near to the spot. It is the said injured PW-3 Sumit only who had the sole conversation with the accused which led to the dispute as well as gunshots being fired. Therefore, in the said factual matrix, the versions given by PW-1, PW-2 and PW-17 does not assume much importance.
40.1 It is PW-3 Sumit only who had confronted the accused after he had abused him being a fellow villager while he was passing through the said barrier. As far as the version given by PW-3 on the material aspect of the manner in which the incident occurred and the subsequent event's are concerned, not much has been brought forth in the cross examination conducted on behalf of accused. Few contradictions were pointed out on behalf of the accused regarding his position on the motorcycle 32 when seen in light of his statement under section 161 Cr. PC. The said contradiction even if taken to be true, is only insignificant one which does not touch the merit of his version. Rather his statement under section 161 Cr. PC when seen in its entirety does not in any manner reflects his version given in the court to be contradictory or having improvements or omissions or embellieshments etc. There is no reason forthcoming from the record for injured to implicate the accused by shielding the real offender. In the said backdrop, it has to be observed that there is no reason to discard or disbelieve the creditworthy version given by PW-3 Sumit when his presence at the spot is not disputed as well as he having suffered four bullet injuries at the vital parts of his body.
41. The accused has also tried to impeach the version given by PW-3 Sumit by arguing that the motive in the present case which led to the fire incident by the accused is not proved. It is argued on behalf of the accused that no details have been given of the property dispute which took place between PW-3 and accused. Prior to discussing the version of PW-3 on the said aspect of motive, the version given by one another crucial witness PW-17 Deepak regarding relations between accused and 33 PW-3 is relevant. He is the fellow villager of both PW-3 as well as accused. He deposed that prior to the incident in September 2014, both accused as well as Sumit used to be close friends and were seen roaming together number of times. The said version given by PW-17 in a way corroborates the case of the prosecution regarding motive which is the property dispute between PW-3 Sumit and accused. The dispute led to souring of relations between them. PW-3 Sumit in his cross examination explained about the dispute between them which was concering some property owned by him. The said dispute took place around six months prior to the incident in March / April at their village. Even the police was called but no FIR was got registered by the police officials. The details of said property transaction were never sought from PW3 either in investigation or in the cross examination. Further the mere non disclosure of the details of the property transaction which led to the dispute cannot be the ground for discarding the said version of PW-3. 41.1. He further elaborated about the said dispute in his testimony by deposing that accused was demanding his share from one transaction of sale proceed from a plot despite the fact that he has no such share. The accused had threatened him of the 34 dire consequences due to the said dispute. Thereupon he had started avoiding meeting the accused. The said fact is not seriously disputed or challenged on behalf of the accused in the entire cross examination of PW-3. In light of the said reasons, it has to be observed that there was a motive due to the said prior dispute between PW-3 and accused which led to the incident in question.
41.2. In light of the above said reasons, it has to be observed that the testimony of PW-3 Sumit which is corroborated by his medical record Ex. PW-11/A is credible and trustworthy. Defence of Accused
42. The defence pleaded on behalf of the accused is rather contradictory one. That while conducting the cross examination of PW-3, it was the defence of accused that it is PW- 3 who had hit against the bench of the accused while he was sitting and it led to the quarrel. The gunshot's were fired by Sumit and his friends upon the accused who somehow escaped and it hit against one of his fellow employees at Toll tax. But the accused while giving his statment u/s 313 Cr. PC took a somersault and pleaded a completely new defence that there was one kalandra registered at PS Bawana against him as well as said 35 Sumit. The same was disposed off but said Sumit was having enmity against him due to the said kalandra. Due to said enmity only, he got the present case falsely registered against him. No such defence has been put either to said PW-3 Sumit or IO PW- 23 SI Surender Singh. The said Kalandra too has not been proved on record. Therefore, it has to be observed that the defence pleaded by the accused of gunshot's being fired by said PW-3 and his friends or he being falsely implicated due to some kalandra is a sham defence only.
43. In view of the above findings, I am of the considered view that the prosecution has succeeded in proving their case against accused Manjeet @ Hazari beyond reasonable doubt. Accordingly, accused Manjeet @ Hazari stands convicted for the offence punishable under section 307 IPC read with section 27 of Arms Act.
Announced in the open court (Gagandeep Singh)
on 08.05.2023 ASJ/ Special Judge (NDPS)
North:Rohini:Delhi