Delhi District Court
Sc No.9309 (State vs . Jagbir Singh & Anr.) on 24 May, 2011
SC No.9309 (State vs. Jagbir Singh & Anr.)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDL. SESSIONS JUDGE - 02 (SOUTH) :
SAKET COURTS, NEW DELHI
SC NO. 93/09
Unique Case ID No. 02403R0092682009
State Vs. 1. Jagbir Singh @ Jaggu
S/o Sh. Ram Kishan
R/o Village Bijwasan, Saini Mohalla
Opp. Desu Office, Nai Chaupal
Delhi - 61.
2. Ajay Pal
S/o Late Sh. Kehar Singh
R/o 572, Near Purana Kuan
Village Rangpuri, New Delhi - 37.
FIR No. : 127/05
u/S. : 452/307/34 IPC & 25/27/54/59 Arms Act
PS : Vasant Kunj
Date of Committal : 07.04.2007
Arguments Heard on : 24.05.2011
Date of Decision : 24.05.2011
J U D G M E N T.
Accused persons have been charged and tried for the offence u/S.
452/307/34 IPC and 25/27/54/59 Arms Act.
Page 1 of 15
SC No.9309 (State vs. Jagbir Singh & Anr.)
1.0 In brief the case of the prosecution is that on 18/2/05, an information was received regarding firing of gun shot which was recorded vide DD No. 41A on the receipt of which SI Jarnail Singh alongwith Ct. Ramesh reached on the spot and found blood lying outside the house of Ajaypal S/o Kehar Singh. An empty cartridge was also found lying. Blood was also found lying outside the house of Dharam Singh. A lady namely Geeta present there, informed that her brother Kuldeep has been shot. The injured had been taken to Safdarjang Hospital by his relatives. In the meanwhile, SI Gangaram and Beat Constable Kanwar Singh also reached on the spot. Investigation Officer left them on the spot and requested them to call the Crime Team and conduct the necessary proceedings. SI Jarnail Singh alongwith Ct. Ramesh reached Safdarjang Hospital where Kuldeep was found admitted vide MLC No.C29294 in Ward B. While the matter rested thus, SI Zile Singh informed the IO that he has received an information regarding gun fire which was recorded vide DD No. 76B from a spot near liquor shop, Rangpuri Village. From there a person namely Ajaypal was taken to Safdarjang Hospital by PCR Van. Ajaypal was also found admitted vide MLC No. C29313 with alleged history of gun shot injury. Kuldeep made a statement that at around 10pm while he had retired to sleep, Ajaypal, who is related as his uncle alongwith his friend Jagbir entered into their house and started abusing them loudly on which all the members of the family awoke. The complainant asked Ajaypal not to abuse and to go back home. However, Page 2 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) Ajaypal did not hear the same and started manhandling Kuldeep. In the meanwhile, Geeta also reached there and protested against this, on which Jagbir pushed her and asked everybody else to stay away. Jagbir exhorted to teach lesson to Kuldeep. Kuldeep was dragged outside in the front of Ajaypal's house. Geeta was caught hold by Jagbir and Ajaypal took out the revolver from the dub of Jagbir and shot him on the left hand side. Ajaypal managed to flee away from the spot, while Jagbir was apprehended by Geeta. The complainant alleged that Ajaypal and Jagbir had shot him with an intention to commit his murder. Pursuant to the statement, IO made an endorsement Ex.PW21/A and FIR No. 127/05 u/Ss. 307/34 IPC & 25/27/54/59 Arms Act, Ex.PW3/A was lodged. The siteplan was prepared. The exhibits i.e. empty cartridge, broken golden chain and blood stained soil were seized. During investigation, IO visited the office of Vaibhav Properties, NH8, Rangpuri from where Ajaypal was removed to the hospital. SI Zile Singh was also present there. Crime Team had left after taking the photographs. SI Zile Singh handed over the crime team report to the IO. From the office, a country made revolver, a live cartridge and a broken golden colour chain was recovered. A boy namely Umesh present in the office told that Ajaypal had visited the office with a gunshot in his leg and he had concealed this country made revolver, live cartridge and chain. Accused Jagbir was arrested. The medical exhibits were sealed and seized. During investigation, it was found that accused Ajaypal had suffered a self inflicted gunshot. Accused Ajaypal was also subsequently arrested. In the opinion dated 21/2/05, Dr. Chanderkant, Page 3 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) MBBS, DLO, MD LLB, Deptt. Of Forensic Medicines, Safdarjang Hospital opined that "firearm injury is from close range and likely to be self inflicted." The exhibits were sent to FSL . During filing of the challan, sanction u/S 39 Arms Act was not received . After investigation, the chargesheet u/Ss 452/307/34 IPC was filed in the Court on 24/3/06. After supply of copies and compliance u/S 207 Cr.PC, the case was committed to the Court of Sessions on 03/04/07.
2.0 Being a prima facie case, accused persons were charged u/Ss. 452/307/34 IPC & 25/27/54/59 Arms Act, to which accused persons pleaded not guilty and claimed trial.
3.0 Prosecution examined 21 witnesses in support of its case. 3.1 PW1 Dr. Sugandha Arya proved the MLC of accused Ajaypal as Ex.PW1/A and of injured Kuldeep as Ex.PW1/B. As per MLC of accused Ajaypal, the injury was proved to be simple caused by gun shot. Whereas, as per MLC Ex.PW1/B of injured Kuldeep, the injury was opined to be dangerous caused by gun shot injury. PW2 Dr. Prem Kumar proved the opinion given by Dr. Chanderkant as Ex.PW2/A and opined on the weapon of offence as Ex.PW2/B and opinion on the pant as Ex.PW2/C. As per opinion Ex.PW2/A, it was opined that firearm injury was from close range and likely to be self inflicted. This was pertaining to the injury suffered by accused Ajaypal. As per opinion Ex.PW2/B on the weapon of offence it was opined Page 4 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) that the injury present on the thigh of Ajaypal could have been produced by the same country made revolver. In respect of opinion on pant Ex.PW2/C, it was opined that an irregular torn area is caused by firearm discharge from medial to outer side direction.
3.2 PW3 HC Shabbir proved the carbon copy of FIR as Ex.PW3/A. 3.3 PW4 Geeta decided to support the case of the prosecution only partly. She stated that her brother Kuldeep was pulled out by Jagbir and his associates to the street and Jagbir took out a katta from his dub and fired at her brother and Jagbir was apprehended at the spot. Geeta stated that she does not know the other associates of Jagbir. Even in the cross examination by Ld. Addl. PP, though she admitted her signatures on the documents but denied to have told the police that accused Ajaypal was also present at the time of incident and he was also involved with Jagbir. Geeta went up to saying that infact Ajaypal was there to rescue. She also denied to have told the police that Ajaypal dragged Kuldeep outside. She also denied to have told the police that Ajaypal had taken out katta from the dub of Jagbir and then fired upon Kuldeep. During cross examination on behalf of accused Jagbir, PW4 stated that on 18/2/05, Jagbir had come with two other persons but Ajaypal was not with them. It is pertinent to mention here that as per the case of the prosecution itself, Ajaypal was related to the complainant party. Page 5 of 15
SC No.9309 (State vs. Jagbir Singh & Anr.) 3.4 PW5 Kuldeep another star witness also supported the case of the prosecution as per his own convenience. He also stated that Jagbir and his two associates came near his house and started abusing, on which PW4 Geeta objected and he also came out. Then Jagbir and his associates started abusing her and they pulled him outside the house of Ajay Pal, who also came out from the house. A scuffle took place between PW5 and Jagbir & his associates. Then Jagbir took out a katta from his dub and fired 23 times. Kuldeep stated that Ajaypal had only intervened to get him released and he did not make any complaint against Ajaypal. Kuldeep also went to the extent of saying that Ajaypal was also injured and admitted in the same ward. Even the cross examination by Ld. Addl. PP, failed to elicit anything against Ajaypal. In the cross examination on behalf of accused Ajaypal, he admitted that Ajaypal is his uncle and there is no dispute between his family and that of Ajaypal. It is pertinent to mention here that PW5 was allowed to be recalled for cross examination on behalf of accused Jagbir but he did not turn up. 3.5 PW6 Umesh Chaudhary, was examined by the prosecution regarding the recovery of firearm with live cartridge being kept by accused Ajaypal. PW6 Umesh Chaudhary did not fully support the case of the prosecution. He only stated that on 18/2/2005 at around 10:30pm while he was present in the office, accused Ajaypal came there laming and told that a fight had taken place in the village and Jagbir had shot Kuldeep and him. Ajaypal was bleeding from his feet. He made a telephone call and after 10 minutes Page 6 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) police reached there and took Ajaypal with them. PW6 Umesh Chaudhary stated that he was also taken to PS where he was asked to sign some papers but he does not know anything about those papers and nothing was recovered in his presence by the police. Even in the cross examination by Ld. Addl. PP, PW6 denied the suggestion that accused Ajaypal was having a revolver, a live cartridge and gold chain, which he had hidden in the drawer of the table in the office and he was threatened by accused Ajaypal when he objected to the same. The witness also denied the suggestion regarding the recovery of these articles from the office in his presence.
3.6 PW7 Ct. Jagdish Prasad is a formal witness who took accused Jagbir for his medical examination on 19/2/05. PW8 Inspt. Ajit Singh, Incharge Crime Team, visited the spot and prepared the crime spot report Ex.PW8/A & PW8/B. In the cross examination, Inspt. Ajit Singh admitted that he had not mentioned in his report Ex.PW8/A regarding presence of the accused. He stated that no accused was present at that time at the spot. 3.7 PW9 HC Ramesh had gone alongwith IO SI Jarnail Singh on receipt of a PCR Call. Kuldeep was found having gunshot injury and was taken to hospital. HC Ramesh had taken the rukka to the PS and after registration of the case, he came back to the spot and handed over the assal tehrir and carbon copy of FIR to the IO. He also went to the second spot of Page 7 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) incident from where one katta, one live cartridge and one broken chain was recovered. HC Ramesh proved the arrest memo and personal search memo of accused Jagbir. He also proved the disclosure statement of accused Jagbir as Ex.PW9/A. In the evening accused Ajaypal was arrested and his arrest memo and personal search memo was proved as Ex.PW9/B and Ex.PW9/C. The disclosure statement made by accused Ajaypal was proved by the witness as Ex.PW9/D. It is pertinent to mention here that in the cross examination, HC Ramesh stated that there were about 1520 persons from the village present at the spot including PW4 Geeta. However, no statement was recorded at that time. The statement of Geeta and other witnesses were recorded only lateron. It also came in the cross examination that accused Jagbir met police officials at 10:30pm on 18/2/05 at the time of their first visit but accused Jagbir was arrested only on next day morning at 7:30 am and during this period accused Jagbir remained in the custody of Ct. Kanwar Singh.
3.8 PW10 Ct. Dev Kumar being the Special Messenger took the FIR and delivered the same to the Ld. MM and senior police officials. PW11 Ct. Kanwar Singh had also reached on the spot at around 10:30pm on 18/2/05 and met Inspt. Ganga Ram Solanki (PW18) SI Jarnail Singh (PW21) and Ct. Ramesh (PW9). He found accused Jagbir on the spot and kept him in his custody. The blood samples were lifted. The gold chain, lead and empty cartridge were also sealed and seized from the spot. PW12 HC Chandan Page 8 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) Singh, member of the Crime Team had taken the photographs and proved the same as Ex.PW12/A1 to A8 and A9 to A12. The negatives were also collectively proved as Ex.PW12/A13. PW13 HC Anant Ram was a link witness who had taken the exhibits to FSL.PW14 HC Subhash Chand, MHC(M), proved the extract of Register No.19, as Ex.PW14/A. PW15 Satish also turned hostile. He stated that he was merely informed that accused Ajaypal and Kuldeep have been shot by Jagbir. He went to the hospital and found both of them admitted in the ward. PW15 Satish was the signatory to the arrest memo and personal search memo of accused Ajaypal. Though he admitted his signatures, but he stated that police obtained his signatures on blank papers. His statement was not recorded by the police. During cross examination by Ld. Addl. PP, PW15 stated that he did not tell the police that accused Ajaypal had suffered self inflicted gun shot injury. During cross examination on behalf of accused Ajaypal, he stated that on enquiry from Kuldeep, he told that Jagbir had shot Kuldeep and Ajaypal. During cross examination on behalf of Jagbir, the witness stated that accused Ajaypal is his brother in law. He also stated that no incident took place in his presence and he came to know about the incident only in the hospital.
3.9 PW16 SI Zile Singh had gone to Vaibhav property. He met PW15 Umesh there. It was the spot where accused Ajaypal had allegedly shot himself in the foot and one live cartridge, one katta and one broken chain was Page 9 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) recovered from there. On being informed SI Zile, IO SI Jarnail Singh reached there. Crime team also reached the spot and took photographs. In cross examination SI Zile Singh admitted that in his presence owner of Vaibhav Properties was not called. It is a matter of record that owner of Vaibhav Properties has not been made a witness in this case. PW17 SI Vidhyadhar was a formal witness who had delivered the two separate pulandas of blood stained clothes of the injured persons Kuldeep and Ajaypal to SI Jarnail Singh and was witness to the seizure memo Ex.PW17/A and PW17/B. PW18 Inspt. Ganga Ram Solanki had also reached on the spot. However, SI Jarnail Singh was already there with Ct. Ramesh and Ct. Kanwar Singh (PW11). Inspt. Ganga Ram left the spot after giving instructions to SI Jarnail Singh. PW19 HC Satyavan was also a link witness who took exhibits to FSL and stated that so long the case property remained in his possession, it was not tampered with. PW20 Ms. Shalini Singh proved the sanction u/S 39 Arms Act dated 8/5/08 as Ex.PW20/A. PW21 Inspt. Jarnail Singh, IO formally proved the case of the prosecution. He stated that when he reached on the spot Jagbir was found apprehended by the people and PW4 Geeta was present there. He went to the hospital with Ct. Ramesh where Kuldeep was found admitted. In the meanwhile he received another information regarding firing at near Vaibhav Properties. The injured of this incident Ajay Pal was also brought to the hospital. On the statement of Kuldeep, Ex.PW5/A, he prepared tehrir, Ex.PW21/A and got the case registered through Ct. Ramesh. SI Jarnail Singh Page 10 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) visited both the spots. The site plan prepared at the instance of Geeta i.e. the spot where allegedly Kuldeep was shot, is Ex.PW21/B. Exhibits were picked and seized from there. The site plan of the second spot i.e. where Ajay Pal had allegedly suffered self shot gun injury Ex.PW21/C was prepared. IO proved the arrest of accused Jagbir and remaining investigation conducted by him. As per medical opinion, accused Ajay Pal was found to have suffered self shot gun injury. FSL report, Ex.PW21/D was collected and photographs were also proved as Ex.PW21/E1 to E12. The FSL result of Ballistic Division was proved as Ex.PW21/F. IO also identified the case properties as Ex.P1 to Ex.P6. In the cross examination IO admitted that as per PCR form, the call was made by one Savitri and her name has appeared in the PCR form Ex.PW21/DA. IO stated that as per Ex.PW21/DB Savitri was present at the spot and Ajay Pal S/o Kehar Singh has fired a shot at Kuldeep. It is a matter of record that Savitri is not a witness of prosecution. IO was not knowing that Savitri was mother of Kuldeep. He admitted that in the information recorded vide DD No.41A there is no mention of the name of Jagbir. IO also admitted that he did not record statement of Geeta when he first reached at the spot. The statement of Geeta was recorded only after the registration of FIR. IO also admitted that katta was not examined by any Finger Print Expert. 4.0 In their statement u/S 313 Cr.PC, accused persons denied all the allegations and submitted that they have been falsely implicated. Page 11 of 15
SC No.9309 (State vs. Jagbir Singh & Anr.) 5.0 Sh. Abhishek Singh and Sh. Ramesh Rawat, Ld. counsels for the accused persons have argued in unison that prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt. Initially, it was the case of the prosecution that Ajay Pal and Jagbir had trespassed into the house of Kuldeep and started abusing them. On being protested by Geeta, Jagbir pushed her back. Both the accused persons dragged Kuldeep outside his house and Ajay Pal took out the revolver from the dub of Jagbir and fired a gun shot upon Kuldeep. However, in evidence the witnesses took a somersault. They made a statement that in fact it was Jagbir who had fired the gun shot. Accused Ajay Pal had come there merely to rescue them. It has been submitted that there are material contradictions in the case of the prosecution and therefore, accused persons are liable to be acquitted. 5.1 Sh. MZ Khan, Ld. Addl. PP for State has submitted that the prosecution witnesses have made a consistent and corroborative statement on oath that it was accused Jagbir who had shot Kuldeep and it has also been proved on record that Ajay Pal had suffered self inflicted gun shot injury. The contradictions which have occurred in the case of prosecution are minor in nature and do not go into the roots of the case.
6.0 The consideration of argument and counter argument of the prosecution and the defence makes one thing very clear that prosecution had not been able to prove the case which it had initially set up. It is a settled Page 12 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) proposition that prosecution is duty bound to prove the case, which they bring before the court. During trial, the prosecution cannot be permitted to take a turn and prove an entirely different case. The discussion made herein above makes it clear that initially the case of the prosecution was that it was Ajay Pal who had fired the gun shot injury upon Kuldeep but during the statement, almost all the witnesses consistently stated that it was Jagbir Singh who had fired upon Kuldeep. It is also pertinent to mention here that PW4 Geeta and PW5 Kuldeep admitted that accused Ajay Pal is their relative. Therefore, the fact that witnesses turned hostile only to rescue Ajay Pal cannot be ruled out. But their turning hostile cannot be read to the disadvantage of coaccused Jagbir. It is correct that only those contradictions which are material in nature can discredit the case of prosecution. The question is which contradictions are material and which are not. I consider that contradictions which go to the root of the case or which attempts to place entirely a different version from the initial version is a material contradiction. Per contra, if the contradictions are on the periphery of the case of prosecution, it may not adversely affect their case. I consider that in the present case, the contradictions are going into the roots of the case. The testimony of the witnesses are such that the same are not inspiring the confidence of the court. The defence has successfully placed on record the copy of PCR form, Ex.PW21/DA and Ex.PW21/DB. Perusal of form Ex.PW21/DA indicates that Kuldeep has been fired by a person who has been locked up in a room. If we read this form along with the case of the prosecution it means that it was Jagbir who had fired upon Kuldeep. If it was Page 13 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) so, then why did Kuldeep initially name accused Ajay Pal as the person who had fired upon him. A witness who is changing version with the change of season cannot be believed. It is also strange that IO also did not investigate this aspect further. Similarly, perusal of the PCR form, Ex.PW21/DB indicates that Savitri was present at the spot who is stating that Ajay Pal had fired upon Kuldeep, who is a neighbourer. Therefore, from the day one, there is a contradiction in the case of prosecution. Further reading of Ex.PW21/DB also indicates that there is some dispute between the parties over the property. Therefore, the possibility of false implication cannot be ruled out. It is also pertinent to mention here that sanction u/S 39 Arms Act is of much later date, after the filing of the chargesheet. I consider that in view of the material contradiction in the story of the prosecution, accused persons are entitled to benefit of doubt. Hence, accused persons Jagbir Singh and Ajay Pal are acquitted for the offence u/Ss.307/452/34 IPC and sections 25/27/54/59 Arms Act in case FIR No.127/05, PS Vasant Kunj.
Accused persons are on bail. Their surety bonds / bail bonds are canceled. Sureties are discharged. Original documents of the sureties, if any, be released against proper acknowledgment.
7.0 In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues Page 14 of 15 SC No.9309 (State vs. Jagbir Singh & Anr.) notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months.
9.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
Today on 24.05.2011 ASJ02(South)/Saket Courts
New Delhi / 24.05.2011
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