Delhi District Court
State vs Kamal Kumar @ Dharambir @ Billa on 7 December, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 198 of 2016
State Versus Kamal Kumar @ Dharambir @ Billa
S/o Sh. Baishakhi Ram
R/o Hno. 178, Gali no. 3,
Kachhi Colony, Maujpur, Delhi.
FIR No. : 313/16
Under Section : 307/34 IPC and 25/54/59 Arms
Police Station : Krishna Nagar
Chargesheet Filed On : 27.02.2017
Chargesheet Allocated On : 22.03.2017
Chargesheet received by this Court on: 25.03.2017
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 06.12.2019
Judgment Announced On : 07.12.2019
JUDGMENT
1. The brief facts of the case of the prosecution is that on 3.18.2019 at about 3.30 pm at main road, Mahindra Showroom, Main Kanti SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 Nagar, Delhi, accused alongwith Saurabh, Sunil Mishra and Chanderpal (yet to be arrested), caused injuries to Charanjeet Singh by firing upon him and he received gunshot injuries on his left hand. On receipt of DD no.17A, SI S.P. Hooda alongwith Ct. Ravikant reached at the spot i.e. Mahindra Showroom and investigated the spot. From there, they reached at SDN Hospital and collected the MLC of injured Charanjeet Singh and recorded his statement.
2. On the basis of statement of complainant, the case u/s 307/34 IPC was registered. Site plan was prepared at the pointing out of complainant. The spot was inspected and photographs were taken. Exhibits i.e. live cartridge, empty shell and blood stained articles were collected from the spot. On conclusion of the investigation, chargesheet was filed against the accused before the court of ld. MM for the offences punishable under Sections 307/34 IPC.
3. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 307 IPC was exclusively triable by it.
4. After committal of the present, case, the accused Kamal Kumar was produced from judicial custody only on 25.03.2017 and thereafter, the accused absconded himself and vide order dated 12.08.2019, accused Kamal Kumar was declared as proclaimed offender. CW1 ASI Harvinder Dhaka executed the process u/s 82 CrPC and proved his report vide Ex.CW1/A, copy of DD no.40B dated 20.08.2018 vide Ex.CW1/B in this regard and the SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 prosecution examined five witnesses u/s 299 CrPC.
5. Thereafter, on 02.04.2019, accused Kamal Kumar was apprehended and rearrested in the present case and produced in the court.
6. Vide order dated 22.04.2019, charge under Section 307/34 IPC was framed against the accused to which, he pleaded not guilty and claimed trial.
7. In total, ten prosecution witnesses were produced and examined to prove the guilt against the accused u/s 307/34 IPC which are as follows :
PW1 Makkhan Singh is the Manager of Mahindra Showroom situated a Kanti Nagar stated about the firing incident happened inside the toilet of their showroom where one boy entered while other four chased him and fired upon the complainant/injured and fled away from the spot.
PW2 ASI Arvind Kumar was present in the beat at Kanti Nagar and on receipt of information, reached at the spot alongwith Ct. Neeraj and met with IO SI S.P. Hooda. He also proved the seizure memo of articles/exhibits collected from the spot vide Ex.PW2/A.
8. PW3 Charanjeet Singh @ Dabbu is the victim/complainant of present case and narrated the incident of receiving gunshot injuries by the hands of accused alongwith his associates at the spot i.e. Mahindra Showroom.
PW4 W/HC Munni Khan proved DD no.17A regarding a boy was shot with bullet in his head at main road, in front of Mahindra Showroom vide Ex.PW4/A and the same was marked to SI S.P. Hooda for SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 taking necessary action.
PW5 Retd. SI S.P. Hooda is the investigating officer of present case and has conducted the investigaiton. He also proved the seizure memo of sealed parcels of blood stained clothes of injured and two parcels of blood sample i.e. dry and wet alongwith sample seal vide Ex.PW5/A. He also made endorsement on the statement of complainant vide Ex.PW5/B, site plan Ex.PW5/C, seizure memo of hard disk of DVR of factory of Saurabh Tayal vide Ex.PW5/D, DD no.41B vide Ex.PW5/E as well as arrest memo and disclosure statement of accused Kamal Kumar vide Ex.PW5/F and PW5/G. PW6 ASI Ravikant Tyagi alongwith investigating officer reached at the spot and on the instruction of IO, also got registered the FIR of present case.
PW7 ASI Ashok Pathak proved the endorsement on rukka vide Ex.PW7/A, copy of FIR Ex.PW7/B and Certification u/s 65B of I.E. Act Ex.PW7/B. PW8 HC Ram Naresh proved the DD No.41B regarding arrest of accused Kamal Kumar in case FIR no.61/16 of police station Special Cell, Lodhi Colony and his disclosure about his involvement in present case vide Ex.PW5/E. PW9 Sanjeev is the Incharge of Mobile Crime Team (East) who stated that on receipt of information from Control Room (East), he alongwith his staff i.e. PW10 HC Ashok Kumar and one proficient SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 reached at the spot and inspected the spot and the spot was photographed by PW10 from different angles and he proved the positives of the same vide Ex.PW10/A1 to PW10/A18 and its negatives vide Ex.PW10/B (colly.).
9. During prosecution evidence, the accused in his statement recorded under Section 294 Cr.P.C admitted the following statements/documents :
(1) Statement of PW Khursheed Alam listed at sl.no. 2;
(2) MLC No. 1710/16 of victim Charanjeet Ex.C1 prepared by Dr. Arvind, CMO, PW Dr. Uday Pratap who has given result as 'Dangerous' and injuries mentioned in MLC as received on the body of victim by PW Dr. Parul, all from SDN Hospital listed at sl.no. 10, 11 and 12;
(3) Statement of PW Ct. Devender of Special Cell, NDR listed at sl.no. 14;
(4) Statement of PW HC Ajeet of Special Cell, NDR listed at sl.no. 15;
(5) Ahlmad of PS Special Cell, Lodhi Colony alongwith original case file of case FIR no. 61/16 u/s 25 Arms Act of PS Special Cell listed at sl.no. 16;
(6) Statement of SI Vinay Pal of Special Cell, IO of case FIR no. 61/16 PS Special Cell listed at sl.no. 17;
(7) PCR Form Ex.C2 prepared by W/Ct. Mukesh listed at sl.no. 19.
(8) Arrest memo of accused already Ex.PW5/A to be proved by PW Ct.
Neeraj listed at sl.no.18;
(9) MHC(M) of PS Krishna Nagar with register no.19 and 21 listed at sl.no.
20. SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 The accused further adopted the statements of prosecution witnesses recorded u/s 299 CrPC prior to his arrest.
10. Detailed testimony of the witnesses concerned will be discussed at the appropriate stage of judgment.
11. All the incriminating evidence put to the accused in his statement recorded under Section 313 CrPC and the accused admitted all the incriminating evidence put to him. The accused did not opt to lead any witness in his defence.
12. Ld. Addl. PP for the State argued that prosecution has been able to prove the charge through prosecution witnesses duly coupled with medical evidence. He argued that the complainant/victim proved the prosecution case by narrating the entire incident holding the accused responsible for the crime in question for causing injuries to him on the date, time and place of incident. Ld. Addl. PP further contended that there is no reason to disbelieve the testimony of the complainant duly corroborated with other material on record and there is no reason for false implication of the accused, further submitting that rather victim would be the most interested person to see the actual culprit(s) behind the bars. Ld. Addl. PP further submitted that MLC Ex.C1 of injured/PW1 Charanjeet, duly admitted by the accused, in his statement under Sec. 294 CrPC, clearly mentions the history as "gunshot". Apart from that, the accused also admitted almost all other documents as well as statements u/s 161 CrPC of the prosecution witnesses. Ld. Addl. PP contended that the injury sustained by the victim SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 was aimed with intent to kill him however, he escaped and sustained injuries on his hand. Rather admission of the MLC as Ex.C1 in toto goes against the accused. Ld. Addl. PP for the State further contended that accused with his associates caused injury to the victim and prayed for conviction to him, as per law.
13. Ld. defence counsel filed an application for plead guilty at the time of prosecution evidence and also recorded his statement u/s 294 CrPC whereas he has admitted the testimony of prosecution witnesses as well as documents prepared during the course of investigation. The accused was examined u/s 313 CrPC. All the incriminating evidence put to the accused and he admitted the same voluntarily and also filed an application for admission of his guilt which is Ex.A1.
14. Victim/PW3 Charanjeet Singh @ Dabbu is the star and key witness of the case while remaining prosecution witnesses either joined the investigations of this case or formal in nature. Now, it is to be analyzed whether this case for injuries sustained by PW3 Charanjeet Singh @ Dabbu attracts the provisions of Section 307 IPC or otherwise. PW3 Charanjeet Singh @ Dabbu, the complainant/victim appeared before the court on 25.01.2019 and deposed before the court. To facilitate the matter, his testimony is reproduced as under :
"..... On 23.05.2016 at about 1.30 pm, Lalit Tayal met me in the KKD court parking and offered me to take Rs.1.00 Crore and registry of abovesaid plot was executed in his favour. I replied him that whatsoever court decide, I will SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 accept decision of the court and I refused to take Rs.1.00 crore from him. At that time, Lalit Tayal told me that as my wish and also stated that "ek crore rupeye main bahut kuch ho sakta hai".
On 31.05.2016 at about 1.00 pm, I alongwith my friend Khurshid Alam were going to our house from KKD. Courts in my car for collecting some documents but said documents were not available. When we were returning towards our house via road no.57 and reached at Hardware shop at Kanti Nagar for taking plug for my motorcycle. I parked my car near the said shop and going towards the hardware shop and I was standing outside the car and Khurshid went to the hardware shop for taking plug. At that time, I saw that four boys came on two motorcycles, one of the motorcycle was driven by Saurabh and Dharamvir @ Kamal was sitting as pillion rider and other motorcycle was driven by Chanderpal Pradhan who was detained with me in 2004 in jail and he used to come at Kamal @ Billa was driving said motorcycle and Sunil Mishra was sitting as pillion rider on it. I could not note down the registration numbers of said motorcycles. After seeing me, Sunil Mishra told loudly "kahan par ja raha hai, maaro" and then fired upon me and thereafter, Dharambir @ Kamal also fired towards me. I immediately ran from there and entered in a showroom of Mahindra. Dharamvir @ Kamal and Chanderpal Pradhan, Sunil Mishra and Saurabh chased me and also entered in said showroom. Thereafter, I entered in a toilet of said showroom which was situated at back side. Said gate of toilet was made of silver colour and also having glass gate in the middle. Thereafter, Dharambir @ Kamal @ Billa, with intention to kill me fired upon me and I received gunshot injury on upper side of my right hand and Saurabh also fired towards SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 me which was hit against the wall. Thereafter, all the accused persons fired towards me as I heard the noise of fire and then I raised alarm. Accused Saurabh broken the glass gate of toilet with the help of his helmet and I raised alarm loudly "bachao bachao". All the accused persons ran away from the spot while public persons gathered and police persons came there. In the meantime, PCR police came at the spot and took me to SDN Hospital for treatment.....".
15. As per the provision of the Section 307 IPC, the essential ingredients required to be proved in the case of an offence under this section are as under :
(i) that the death of a human being attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years.
If it does cause any injury and thereafter hurt, it is punishable with imprisonment for life".
16. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act or the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result and injury, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. To constitute an offense, no injury need be caused to the SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under Section 307 IPC the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed which is not so in this case. The intention is not gatherable merely from the seriousness of resultant injury.
17. It is clear from the record that injuries were caused on altercation. In S.K. Jago Vs. State, 2007 Crl. L.J. 463 (Jhar.), it is clearly observed that accused persons without any intention to cause death fired one shot each and caused the injuries to father and son and then it was held that accused persons were liable to be convicted for the offence of voluntarily causing hurt under Sec. 324 and not for the offence of attempt to murder.
18. Hence, in view of the over all circumstances of the case, court is of the view that ingredients of Sec. 307 IPC are not attracted in the present matter. Though, the incumbent of Sec. 307 IPC is not attributed under the facts and circumstances of the present case as well the prosecution has not brought home the guilt of accused persons for the offence punishable under Sec. 307 IPC, however, it has been proved that it was the one of the associate of accused persons who caused knife injuries to injured/PW1 Shamshad Alam and accused Amjad caught hold the injured while inflicting knife injuries to PW1 by his associate and accused persons also gave beatings to the injured.
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19. Ordinarily, every man is responsible criminally act done by him. No man can be held responsible for an independent act and wrong committed by anther. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the IPC makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of a criminal act in furtherance of common intention. In such situation, each person is liable for the result that as if he had done that act himself. The soul of Sec. 34 IPC is the joint liability in doing a criminal act. Section 34 IPC is part of the original Code of 1860 as drafted by Lord Macaulay. The original section as it stood as "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." However, on account of certain observations made by Sir Barnes Peacock C.J. in Queen Vs. Gora Chand Gope & Ors., (1865) 5 South WR (Crl.) 45 it was necessary to bring about a change in the workings of the section. Accordingly, in the year 1870 an amendment was brought which introduced the following words after "when a criminal act is done by several persons...." "..in furtherance of common intention ..." After this change, the Section has not been changed or amended ever.
20. Under Section 34 every individual offender is associated with SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is terms as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although his individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other.
21. Circumstances and evidence leading to conclusion that these two accused also shared common intention with another to commit the crime in question.
22. As stated by TAYLOR on 'Principles and Practice of Medical Jurisprudence', 11th Ed.1956 p. 230 : The meaning of the words 'dangerous to life' is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon haemorrhage, shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemi payaemia, tetanus or gas ganerence and of infection of particular parts or tissues pneumonia, SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 pleurisy, empyema, paricarditis, meningities or peritonis; or more remotely to the effects of scaring, causing stricture (or the urethra, oesophagus, out, etc.), paralysis, urinary infection, etc. As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those words in which the danger is imminent. The law appears to contemplate the more immediate rather than the more, remote possible danger.
23. It is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract, the provisions of section 307 is the guilty intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the result; Ansarudin V. State of Madhya Pradesh, (1997) 2 Crimes 157 (MP).
24. The accused inflicted fire arm injury with country made pistol and that fact has been proved by PW3 Charanjeet Singh and the same has been corroborated in the statement of PW1 Makkhan Singh as well as the MLC Ex.C1. Apart from that the accused himself admitted his guilt to the charges as well as the deposition by the prosecution witnesses and the documents prepared during the course of investigation.
25. Perusal of the record is clear to the aspect that as per MLC Ex. C1 mentions - "the patient was brought with the alleged history of gunshot as told by self and B.B. O/E conscious oriented". On the MLC Ex.C1, the nature of injuries were opined by the doctor as 'Dangerous. The injuries SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 mentioned in the MLC Ex.C1 are as under :
(1) 2x2 cm entry wound on the right upper biceps area; (2) 2x2 cm exit wound on the upper trice region; (3) Tottoing with red colour area near injury no. 1;
It is also observed by the CMO SDN Hospital that the injury are fresh, blood coming from the wounds, diffused dwelling present over the arms moment over the right elbow and shoulder restricted. It was also opined that there was no bone injury nor asreoelin opaque foreign body seen.
26. PW3 Charanjeet Singh statement dated 25.01.2019 and 04.06.2019is admitted in toto whereas "he identified the accused present in the court today who fired upon him with firearms". So far the recovery of firearms, a separate case was registered vide FIR No. 61/16 u/s 25 Arms Act dated 04.11.2016 in Police Station Special Cell. The accused is facing charges for the offence u/s 307/34 IPC in the present case as caused injuries to Charanjeet Singh by firing upon him. PW1 Makkhan Singh, Manager of Mahindra Showroom also admitted in his examination in chief the incident of firing. The other prosecution witnesses have one way or the other joined the investigation and proved the documents. The accused also admitted all the evidence/documents in his statement u/s 294 CrPC and u/s 313 CrPC.
27. Hence, in view of the aforesaid discussion, there is no iota of evidence to disbelieve the prosecution story by any stretch of imagination. All the material placed on record and the statement of accused u/s 294 CrPC and 313 CrPC proved the prosecution case against the accused Kaman SC No. 198/17 State Vs. Kamal Kumar @ Dharambir @ Billa Page No.: 16 of 16 Kumar @ Dharambir @ Billa beyond all reasonable doubt.
28. Accordingly, it is clear that the prosecution has proved its case beyond all reasonable doubt against the accused for the offence punishable under Sec. 307/34 IPC and as such, accused Kamal Kumar @ Dharambir @ Billa S/o Baishakhi Ram is held guilty for the offence under Sec. 307/34 IPC and is convicted accordingly.
Announced in the open Court Dated : 7th December, 2019 (Dr. Satinder Kumar Gautam) Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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