Delhi District Court
46 vs S. Punia Similarly Stated So on 30 July, 2011
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS : DELHI
FIR No. : 146/05
PS : Bhajanpura
U/s : 307/120-B/506 IPC.
Unique Case ID : 02402R0 496492006
In the matter of
The State
Versus
1. Satish Kr. Vasant s/o Govind Ram
R/o: 4/r/C, West Arjun Nagar
Delhi.
2. Man Mohan Vikal s/o Raja Ram
R/o: Vill. Mahabar, PS Dadri
Dist. Gautam Budh Nagar (U.P.)
3. Satender s/o Master Ji
R/o: Vill. Mandla, PS Loni
Dist. Ghaziabad (UP)
4. Nepal Chand s/o Sh. Sat Ram
R/o: Vill. Panchay, PS Loni
Dist. Ghaziabad (UP)
5. Mahender Mittal s/o Sh. Hazari Lal
R/o: Gali No. 13, Vailana Nagar
Delhi.
6. Mukesh Kumar Goyal s/o Sh. Tulsi Ram
R/o: 4/196, Gali NO.4, West Kanti Nagar
Delhi.
7. Rajesh Bhati s/o Varan Singh
R/o: Vill. Kamrala, PS Dadri
Dist. Gautam Budh Nagar (U.P.)
FIR No.:146/05, PS : Bhajanpura Page 1 of 67
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...ACCUSED
Session Case No. : 88/08
Date of Institution : 22.09.2005
Date of reserving judgment/order : 16.07.2011
Date of pronouncement : 30.07.2011
J U D G M E N T
1. Accused persons namely Mahender Mittal, Mukesh Kumar, Rajesh Bhati and Nepal Chand @ Bunta were sent up for trial for offence punishable u/s 307/120-B/109/506/34 IPC and u/s 25 of Arms Act and subsequently accused persons namely Man Mohan Vikal, Satish Bansal, Satender and Sanjay were sent up by way of supplementary chargesheet.
2. Brief facts of the prosecution case are that on 27.04.2005 SI Virender Singh Punia received DD entry no. 14-A on the wireless set. He alongwith Ct. Chander Prakash reached at the spot i.e. A1/5, Bhajanpura, Near Khajuri Red Light, Main Wazirabad Road and found Tara Mobile Shop closed and came to know after the firing incident the injured had been removed to GTB Hospital in PCR Van. In the meantime, patrolling motorcycle having Ct. Raj Kumar and Ct. Balvir also reached at the spot. They were left to guard the spot and he went to GTB Hospital where he obtained the MLC of injured Tara Chand in which he was having alleged history of gun shot injury and was unfit for statement and was under treatment. At about 9:50 p.m. doctor declared him fit for FIR No.:146/05, PS : Bhajanpura Page 2 of 67 3 statement and injured Tara Chand got his statement recorded. SI endorsed his statement and got the FIR registered. Crime Team and photographer were called at the spot. During spot inspection, two empty cartridges and one bullet was found which was seized. Doctor also sealed the blood stained clothes i.e. Banyan and kamij. The site plan was prepared at the instance of witness Rakesh Kumar. On 2.5.2005 accused Mahender Mittal was arrested on the secret information and he made disclosure statement that injured Tara Chand owed Rs.12 lacs from him which he was not returning. Servant of Mahender Mittal namely Mukesh introduced Sanjay with Mahender Mittal, who disclosed that accused Satish Bansal can get this work done and he introduced Satish Bansal with Mahender Mittal. Satish Bansal took the contract on the receiving of 50% of the amount for recovering the amount from Tara Chand. Accused Satish Bansal also stated to Mahender Mittal that in case injured Tara Chand refuses (anakani) to pay, they will make plan involving Rajesh Bhati, Bunta and Man Mohan Vikal for recovering the amount. On 27.04.2005, accused Satish Bansal informed Mahender Mittal on his telephone that they had finished Tara Chand. IO took out the print out of mobile phone of Mahender Mittal and Satish Bansal. Satish Bansan had made telephonic call from his mobile number 9810069693 to Mahender Mittal on his mobile phone number 9810612537 and had talked for 629 seconds. The mobile phone of Mahender Mittal was seized. On 6.5.05 accused Mukesh FIR No.:146/05, PS : Bhajanpura Page 3 of 67 4 was arrested. Anticipatory bail of accused Satish Bansal was dismissed on 9.8.2005. Accused Rajesh Bhati and Nepal @ Bunta were arrested in some other case in Loni. Their production warrant were taken and they were arrested on 23.05.2005. TIP of Nepal Bunta and Rajesh Bhati were conducted. Accused Nepal was identified in TIP but accused Rajesh Bhati could not be identified. Accused Rajesh Bhati had fired at Tara Chand and had threated the witnesses. Accused Satish Bansal made disclosure statement that Man Mohan Vikal is their leader and Man Mohan had called Tara Chand from his mobile phone number 9350165008. He stated that accused Nepal @ Bunta was guarding the place and accused Rajesh Bhatti had fired at the Tara Chand on the counter. Subsequently NBWs of accused Man Mohan Vikal, Satish Bansal and Satender were taken and theraefter process u/s 82/83 Cr.PC were got issued and thereafter these accused persons were arrested by crime branch in FIR 705/05 u/s 186/353/307/34 IPC and 25/27/54/59 Arms Act and DD No. 9A u/s 41.1 A Cr.PC. Their production warrants were obtained and they were produced on production warrant on 3.1.2006 and they were arrested from Tihar Jail on 4.1.2006. Accused Man Mohan Vikal was produced in the court as his TIP was fixed but he refused to participate in TIP. Weapon of offence could not be recovered. Accused Sanjay was also arrested who was on anticipatory bail. After completion of the investigation the chargesheet was filed in the court.
FIR No.:146/05, PS : Bhajanpura Page 4 of 675
3. After supplying the necessary copies, the case was committed to the court of session vide order dated 19.08.2006 by Ld. Metropolitan Magistrate.
4. My Ld. Predecessor after finding prima-facie case, charged the accused persons namely Mahender Mittal, Satish Kr. Vasant, Manmohan Vikal, Satender, Nepal Chand, Mukesh Goel and Rajesh Bhati for offences punishable U/s 120B-109 IPC, 307 r/w Sec. 120-B IPC and 506/34 IPC vide order dated 2.5.2007, to which they pleaded not guilty and claimed trial. However vide same order dated 21.04.2007, accused Sanjay was discharged.
5. The prosecution in support of their case examined as many as 18 witnesses. Two witnesses are examined as PW-13. PW Ms. Barkha Gupta will be read as PW-13 and PW Chander Prakash will be read as PW-13 A.
6. The prosecution examined following material witnesses :
i) PW-2 Sh. Tara Chand is the injured and material witness.
He proved his statement made to the police as Ex.PW-2/A and his blood stained clothe i.e. shirt and banyan as Ex. P1 and P2.
ii) PW-3 Sh. Rakesh Kumar is son of the injured and eye witness of the incident. He proved seizure memo of FIR No.:146/05, PS : Bhajanpura Page 5 of 67 6 blood stains from the floor of the shop as Ex.PW-3/A, seizure memo of bullets as Ex.PW-3/B, TIP proceedings of accused Nepal Chand as Ex.PW-3/C and Rajesh Bhatti as Ex.PW-3/D. He also identified blood stained shirt and banyan of his father which later on exhibited as Ex.PW-3/Article-1 and Ex.PW-Article-2. He also identified two empty cartridges and projectile of bullet as Ex.PW-3/Article-3 (collectively).
7. The prosecution also examined following formal witnesses :
i) PW-1 HC Satbir Singh is the duty officer who recorded FIR of this case on the basis of rukka received through Ct. Chander Prakash and proved the carbon copy of the same as Ex.PW-1/A. He also recorded DD No. 14 A regarding information of the incident of fire near red light Khajuri Khas and proved the copy of the same as Ex.PW-1/B.
ii) PW-4 Dr. Shuchi Bhatt is the radiologist who examined the x-ray of patient Tara Chand and opined that fracture of the left fifth rib and right humerus is present and proved his report as Ex.PW-4/A.
iii) PW-5 Dr. D. Mohanty proved the MLC of patient Tara Chand as Ex.PW-5/A which was prepared by Dr. Punit Srivastav who gave nature of injury as grievous.FIR No.:146/05, PS : Bhajanpura Page 6 of 67
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iv) PW-6 Dr. Devender Kumar is the CMO under whose supervision the patient Tara Chand was examined by Dr. C. K. Chaturvedi.
v) PW-8 HC Jasbir Singh is the duty constable at GTB Hospital to whom the doctor had produced one sealed parcel containing clothe of the injured alongwith sample seal who handed over the same to IO who seized the same through seizure memo Ex.PW-8/A.
vi) PW-9 SI Suman Kumar is the incharge mobile crime team who inspected the spot and in his presence two empty case of cartridges, one bullet stuck in cardboard and blood were lifted and seized. He also got the place photographed.
vii) PW-13 Ms. Barkha Gupta, the then metropolitan magistrate who conducted TIP proceedings of the accused Nepal @ Bunta and Rajesh Bhatti. She in addition to other proved the application for fixing TIP proceeding as Ex.PW-13/A, her certificate of correctness of TIP proceedings of accused Nepal @ Bunta as Ex.PW-13/B, her certificate of correctness of TIP proceedings of accused Rajesh Bhatti as Ex.PW-13/C and application for supplying the TIP proceedings as Ex.PW-13/D. FIR No.:146/05, PS : Bhajanpura Page 7 of 67 8
viii) PW-14 Inspector Jasbir Singh is the part investigating officer who had taken p/c remand of accused Mahender Mittal and took him to 2-3 places in search of remaining accused persons but they could not be traced out and thereafter he was transferred.
ix) PW-15 HC Sanjeev Beniwal was the Constable/Photographer with the crime team at the relevant time who took seven photographs of the spot from different angles as per the instruction of IO and proved the same as Ex.PW-15/P1-P7 and its negatives as Ex.PW-15/P8 to P14.
8. The prosecution also examined following witnesses of arrest and investigation :
i) PW-7 HC Satya Pal is the witness of arrest of accused persons namely Mahender Mittal and Mukesh Kumar.
He proved the arrest memo of accused Mahender Mittal as Ex.PW-7/A, his personal search memo as Ex.PW-7/B, seizure memo of mobile phone as Ex.PW-7/C, his disclosure statement as Ex.PW-7/D, arrest memo of accused Mukesh Kumar as Ex.PW-7/E, his personal search memo as Ex.PW-7/F, his disclosure statement as Ex.PW-7/G. He also identified the the mobile phone as Ex.PW-7/Article-1.
FIR No.:146/05, PS : Bhajanpura Page 8 of 679
ii) PW-10 Ct. Dheeraj is the witness of pointing out of the place of occurrence by accused Nepal Chand @ Bunta and Rajesh Bhati and proved the pointing out memo as Ex.PW-10/A.
iii) PW-11 HC Chander Pal is the witness of arrest and disclosure statements of accused Nepal Chand @ Banta and Rajesh Bhatti and pointing out of the place of occurrence. He proved the disclosure statements of accused Nepal Chand @ Banta and Rajesh Bhatti as Ex.PW-11/A and Ex.PW-11/B respectively.
iv) PW-12 Ct. Singhraj is also the witness of arrest of accused persons namely Mahender Mittal and Mukesh Kumar.
v) PW-13 A HC Chander Prakash is the witness who initially alongwith SI Virender Singh Punia, IO reached at the spot and witness of seizure of empty case of cartridges alongwith bullet found stuck in the wooden and blood. He is also the witness who took the rukka to the police station and got registered the FIR.
vi) PW-16 SI Vikram Singh is the witness who interrogated the accused Rajesh Bhatti and Nepal @ Banta and arrested them with the permission of court and proved their arrest memos as Ex.PW-16/A and PW-16/B FIR No.:146/05, PS : Bhajanpura Page 9 of 67 10 respectively. He also got their TIP conducted and also witness of their disclosure statements and pointing out of the place of occurrence. He obtained NBWs against remaining accused persons and got issued process u/s 82/83 Cr.PC and formally arrested the accused Satish Bansal, Satender and Man Mohan Vikas and proved their arrest memos as Ex.PW-16/C, PW-16/D and PW-16/E respectively, disclosure statements of accused Satender and Man Mohan Vikal as Ex.PW-16/F and PW-16/G. He also arrested accused Sanjay (discharged) formally and proved his arrest memo Ex.PW-16/H.
vii) PW-17 Inspector Virender Singh is the investigating officer (IO). He in addition to other memos proved his endorsement as Ex.PW-17/A, site plan as Ex.PW-17/B.
9. Statement of accused persons were recorded u/s 313 Cr.PC wherein accused persons denied the prosecution evidence and claimed innocence.
i) Accused Mahender Mittal stated in his statement recorded u/s 313 Cr.PC that this is a false case. Complainant Tara Chand had taken Rs.3,50,000/- from him as loan and he (accused) was doing the business of Sarees. Complainant used to visit his younger brother. He made demand of the money from the complainant FIR No.:146/05, PS : Bhajanpura Page 10 of 67 11 but he refused to give the same. Thereafter, he made a complaint to the police about two years prior to this case. Police told him that this matter is of civil nature and advised him to file civil suit for recovery. Complainant was apprehending that he (accused) might file suit for recovery against him and in the meantime, he (complainant) was injured in firing by some unknown persons. Therefore, he named him in the present case. He was regularly going to the police station Bhajanpura since 28.04.2005 and police arrested him at the police station itself. Nothing was recovered from his possession. He did not make any disclosure statement to the police. Police obtained his signatures on the blank paper. He does not know any of the accused in the present case. He is innocent. He has been falsely implicated in this case. He further stated that he would lead evidence in his defence, however, later on chose not to lead evidence.
ii) Accused Satish Kumar Vasant stated in his statement that he had given Rs.10/12 lacs to one Sonu as loan. Sonu was secret informer of the Crime Branch. At his instance, he has been falsely implicated in this case and was arrested on the way to Mathura. He does not know accused Mahender Mittal or any other accused who are FIR No.:146/05, PS : Bhajanpura Page 11 of 67 12 involved in this case. He was doing the business of lamination material. He has no concern with the clothe business. He did not make any disclosure statement. Police obtained his signatures on blank papers. He is innocent. However, he chose not to lead evidence in his defence.
iii) Accused Man Mohan Vikal stated in his statement u/s 313 Cr.PC that he has been falsely implicated in this case. He was in Tihar Jail and falsely arrested from Tihar Jail itself in this case. He is innocent. He did not make any disclosure statement. He has no concern with other accused persons. He is innocent. He also chose not to lead evidence in his defence.
iv) Accused Satender stated in his statement that this is a false case. He has been falsely implicated in this case. He did not give any disclosure statement. His signatures were obtained by the police on blank papers. However, he also chose not to lead evidence in his defence.
v) Accused Nepal Chand stated that he was shown by the police to the witnesses before his TIP. The complainant identified him at the instance of the police officials. He has been falsely implicated in this case. He did not make any disclosure statement. He is innocent. However, he also chose not to lead evidence FIR No.:146/05, PS : Bhajanpura Page 12 of 67 13 in his defence.
vi) Accused Mukesh Kumar Goyal also stated that he has been falsely implicated in this case. He was falsely arrested by the police from his house but he did not make any disclosure statement. Police obtained his signatures on blank papers forcibly and subsequently written their own story on the same in order to implicate him in this case. He has no concern with the other accused persons from any angle. He is innocent. However, he also chose not to lead evidence in his defence.
vii) Accused Rajesh Bhati stated that he was called on P/Ws by Ghaziabad police. He was shown to the witnesses by the police before his TIP. He did not give any threat to the witnesses during the TIP proceedings. He has been falsely implicated in this case. He is innocent. He also chose not to lead evidence in his defence.
10. I have heard Sh. Virender Singh, Ld. Addl. PP for State and Sh. Gaurav Seth, Sh. Abdul Sattar (Amicus Curiae), Sh. A. K. Pandey, Sh. Surender Singh, Sh. R. K. Kochar and Sh. Sudesh Sharma advocates for accused persons. I have also gone through the record. The complainant Tara Chand had filed written arguments through his counsel. Copy of the same is given to the FIR No.:146/05, PS : Bhajanpura Page 13 of 67 14 accused persons but they chose not to file any reply. I have also gone through the same.
11. PW-2 Sh. Tara Chand, the injured testified that he has been running a mobile shop in the name and style Tara Mobile at A-1/5, Shop No.4, A-Block, Bhajan Pura, Delhi for the last five years. Prior to this, he had been running STD shop for about two years. Prior to STD shop, he worked with Mahender Mittal as a partner in lady suit business at Katra Neel, Chandani Chowk. Three more persons also used to sit at the said shop of lady suit namely Ram Niwas, Balbir Singh and one more person whose name he does not remember. He worked with them for about six months in partnership. Thereafter, he left the partnership with Mahender Mittal as the same was running in loss. On this, Mahender Mittal insisted him to come and sit at the shop but he refused. Mahender Mittal told him that he would recover the loss of the business amounting to Rs.5 lacs from him, despite the fact that he had to take Rs.5 lacs from him. He demanded his Rs.5 lacs from him. On this Mahender Mittal started causing threatening to him with the help of his associates. Mahender Mittal also threatened his directly that either he will force him to sell bananas on the handcart or he shall kill him. He also received many phone calls to give money. However, he told to them that he himself had to take the money not they had to take money from him. He further stated that on 27.4.2005 afternoon time when he was FIR No.:146/05, PS : Bhajanpura Page 14 of 67 15 sitting at his shop, he received telephone call stated that he (caller) was telling Manmohan Vikal. He asked him as to who was telling then he told that "Hum tumhare Baap Bol Rahe Hain". Thereafter, within 20 minutes three persons namely Manmohan Vikal, Rajesh Bhati and Nepal Chand came at his shop. Manmohan Vikal told him that "Kya tu Tara Chand Hai". On this he answered "Mai hi Tara Chand Hoon". On this, Manmohan Vikal told that they were talking to you on telephone just now. Manmohan Vikal further told him that he had to take money Rs.5 lacs from Mahender Mittal. He further told him that "Toone 5 lakh Mahender Mittal ko dene hain, aur Mahender Mittal ne hume dene hai". Then on this, accused persons kept on talking on telephone for about 10-15 minutes. Rajesh Bhati accused told him that they were coming in the evening upto 8 p.m. and he has to wait till their arrival at their shop. On this Nepal Chand @ Banta accused told "agar tu shaam ko dukaan par nahi mila to teri khopdi uda denge". Thereafter accused persons went away. At about 7:20 p.m. when he was working at his shop, he received gunshot injury at his left side chest. He immediately looked forward and saw Rajesh Bhati having a pistol in his hand and he was also wearing a helmet, the glass of the helmet was found opened and his face was looking clear to him. He again fired at him. He immediately took a turn and the bullet thrust in his right side part of his body. The bullet is still in his body. He fell down. He started vomiting and blood came in his vomiting. His son FIR No.:146/05, PS : Bhajanpura Page 15 of 67 16 Rakesh Kumar lifted him and within 10-15 minutes PCR came there. Police took him in the van. Neighbours told him that two boys also came on motorcycle no. 3010 and after incident they ran away. He gave his statement to the police. He further stated that about 2 or 3 months after the incident, he had gone to the Tihar Jail to identify the assailant where he identified the accused Nepal @ Banta. However, he could not identify accused Rajesh @ Bhati in the jail as he was threatened to be killed.
12. PW-3 Sh. Rakesh, son of the injured Tara Chand corroborated his father, testified that he has been running a mobile shop at Bhajanpura, Khajoori Red Light with his father. He knows accused Mahender Mittal as he saw him at PCO shop once. Mahender Mittal was doing the business of partnership with his father before the incident. His father as well as Mahender Mittal obtained a clothes shop at Chandni chowk and were engaged in the business of property. Later on the business of partnership was dissolved. Thereafter, his father used to receive threatening calls. On account of this, he was disturbed. His father told him that he had to take Rs.5 lacs from Mahender Mittal. On 27.04.2005 at about 12:40 p.m. he was present at his shop with his father. His father received telephone call on which the caller was abusing and threatening him. The caller was saying to his father that he (his father) owed Rs.5 lacs to Mahender Mittal and Mahender Mittal owed Rs.5 lacs to him and, therefore, he would recover the same FIR No.:146/05, PS : Bhajanpura Page 16 of 67 17 from his father. The caller also told that he was sitting at Usmanpur and asked his father to come there and to settle the matter. The caller also threatened that otherwise his father shall face the consequences. On this, his father told that he would not go there and asked the caller to come at the shop and to settle the dispute. After about 20 minutes, three boys came at his shop and one of them disclosed his name as Manmohan, second one disclosed his name as Mukesh and third one refused to disclose his name and identified them as Manmohan, Mukesh and Nepal @ Banta. He further stated that accused Rajesh Bhati disclosed his name as Mukesh at the shop. Nepal @ Banta refused to disclose his name. All the three accused persons asked his father to go to Milakpur to settle the dispute there, where Mahender Mittal was sitting. His father refused to go there. Rajesh Bhati told his father that he would be bringing Mahender Mittal in the evening time at your shop and you should remain there at about 8:00 p.m. Nepal @ Banta told his father that if he would not be at his shop at 8:00 p.m. his father would be killed. Thereafter all the accused persons went away while abusing his father. Thereafter at about 7:20 p.m. he was picking the articles from show-case of his shop. Accused Rajesh Bhati came from the opposite direction from outside the shop and fired at his father by putting pistol on the left side of his chest. Thereafter, accused fired another bullet which hit his father on his right shoulder. His father fell down on the floor. Thereafter, accused Rajesh Bhati returned after firing.
FIR No.:146/05, PS : Bhajanpura Page 17 of 6718 He helped his father and made him to stand. His father was conscious at that time and asked him to call the police at 100 number. He tried to contact the police over 100 number, 100 number was not reaching from his phone. Some one from their neighbourhood called the police at 100 number. Thereafter, some neighbourer told him that the boy who had ran away after firing at his father had gone on motorcycle whose make he does not remember and the motorcycle was bearing registration no. 3010 or 3018 and had fled towards Khajuri Red Light. Thereafter PCR came and he alongwith his father went to GTB Hospital in PCR where he (his father) was admitted. Police recorded his statement at GTB Hospital. Thereafter police brought him to his shop and police had taken out the bullet from the wooden board in the shop. They also lifted the blood stains from the floor of the shop and kept the same in the plastic jar and sealed the same and seized. The bullets were also seized. The police also seized blood stained cloth of his father which were worn by him at the time of the incident. IO also prepared the site plan at his instance. He further stated that thereafter he was called by the police, for the Test Identification Parade (TIP) of accused Rajesh Bhati and Nepal @ Banta. He was getting the threats for not identifying the accused Rajesh Bhati and in case, he identified him in TIP, they will kill them. He identified accused Nepal Chand @ Banta in the TIP. He had seen Rajesh Bhati in TIP but he did not identify him due to threats given to him.
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13. The testimony of injured Tara Chand is also corroborated by PW-6 Dr. Devender Kumar, CMO GTB Hospital who testified that the patient Tara Chand was examined by Dr. C. K. Chaturvedi under his supervision and proved the MLC Ex.PW-5/A. He further deposed as per the MLC, the patient was brought with the alleged history of gun shot injury and on local examination, one entry wound present over chest left side in upper part. Singeing and tattooing present around wound. Left side exit would present over back near mid axillary line size 2 cm x 1 cm. One entry wound present over anterior aspect of right shoulder joint size 1cm x 0.5 cm. Singeing and tattooing present. PW-4 Dr. Suchi Bhatt, Radiologist examined the x-ray of patient Tara Chand and opined that fracture of left fifth rib and right humerus is present and proved his report Ex.PW-4/A. PW-8 HC Jasbir Singh is the duty constable at GTB Hospital who produced one sealed parcel containing clothe of the injured alongwith sample seal, which was handed over to him by doctor, to IO, who seized the same. PW-9 SI Suman Kumar, Incharge Mobile Crime Team testified that on 27.04.2005 on the request of the IO he alongwith crime team reached at the spot A-1/5, Bhajanpura, Near Khajuri Chowk Delhi where IO alongwith other police officials met them. He inspected the spot, where he found two empty case of cartridges of 7.65 mm and both were having pin mark at bottom and one bullet stuck in cardboard behind the counter in a wall and seized the same. PW-15 HC Sanjeev Beniwal is the photographer FIR No.:146/05, PS : Bhajanpura Page 19 of 67 20 at Mobile Crime Team who taken seven photographs of the spot i.e. A1/05, Bhajanpura, Delhi from different angles and proved the same and its negatives. Therefore the version of injured Tara Chand that he was fired at twice finds corroboration from the medical evidence, seizure of articles from the spot by the police, and photographs of the spot.
14. PW-17 Inspector Virender Singh Punia testified that on 27.04.2005 he alongwith Ct. Chander Prakash were on patrolling duty and during patrolling he received message on wireless set some sustained gunshot injuries at A-1/5, Bhajanpura, Delhi and accused persons ran away from the spot on motorcycle. On the receipt of the same, he reached at the spot i.e. shop under the name and style of Tara Mobile where he came to know that injured has already been removed to the hospital and found said shop locked. In the meantime the patrolling motorcycle also reached there. He deputed the motorcycle rider to remain and guard the spot and he alongwith Ct. Chander Prakash went to GTB Hospital where he found the injured Tarachand was under
treatment and he collected his MLC. Thereafter he alongwith son of the injured returned to the spot and called the crime team. Crime team consisting of photographer reached and he and member of crime team inspected the spot. They found that blood lying at the spot and near counter two empty cases of cartridge were also lying and one bullet which was stuck on the wood work FIR No.:146/05, PS : Bhajanpura Page 20 of 67 21 on the wall behind the counter, which were seized. PW-13 HC Chander Prakash similarly corroborated PW-17 IO and is the witness of seizure of two empty cases of cartridges, blood and one bullet stuck in the wooden fixed on the wall. IO and HC Chander Prakash further corroborates injured PW-2 Tara Chand regarding scene of crime which further corroborates the testimony of Tara Chand regarding incident.
15. However, the most vexed question needs to be solved is as to who has caused the incident ? As per injured PW-2 Tara Chand accused persons namely Nepal Chand @ Banta, Manmohan Vikal and Rajesh Bhati are directly involved in the occurrence. In his first statement made to the police, injured Tara Chand stated that he received telephone call from 09350165008 at about 12:41 p.m. on which Vikal Gujjar was stating that he has to take money from Mahender Mittal and Mahender Mittal has to take money from you and asked him to come to Usmanpur to clear the accounts.
But he refused and asked them to come to this place and thereafter after about 20 minutes, three young boys in the age group of 23-30 came and he asked their name. On this one of them told his name as Mukesh, second told his name as Mohan Vikal and third one aged about 23 years, darkest complex height about 5'6" and told that they have been sent by Mahender Mittal who is sitting at village Milakpur and asked him to go there and to clear the account. But he refused and thereafter in the evening at 7:20 p.m. FIR No.:146/05, PS : Bhajanpura Page 21 of 67 22 out of them, one boy came and shot hit while he was doing some writing work while standing at the counter. He fired at him twice. He fell down. When he was examined in the court he identified the boy who had fired at as Rajesh Bhati and identified those three persons who came to his shop as accused Manmohan Vikal, Rajesh Bhati and Nepal Chand @ Banta. He identified the accused Nepal Chand @ Banta in test identification parade (TIP) correctly. However, accused Rajesh Bhati could not be identified as the witnesses showed their incapability to identify the accused. Subsequently however, he made statement to the IO immediately after out of the place where test identification parade (TIP) was conducted that he did not identify the accused Rajesh Bhati as he was under threat.
16. Firstly I shall confined the discussion only with respect to the accused persons namely Rajesh Bhati, Manmohan Vikal and Nepal Chand @ Banta.
17. Ld. Counsel for accused Nepal Chand @ Banta submitted that there is improvement made by the witness regarding which he was confronted with those portions and identity of the accused being involved in the occurrence is not established. As regard accused Manmohan Vikal, it is submitted that there is no link evidence and there is no motive with Manmohan Vikal to fire. With respect to the accused Rajesh Bhatti, it is submitted that in FIR No.:146/05, PS : Bhajanpura Page 22 of 67 23 the judicial test identification parade (TIP) he was not identified and there is no incriminating evidence on record to connect the accused from the case.
18. PW-2 Sh. Tarachand stated in his cross-examination that he does not remember the colour of the clothes of the third boys whose (name) is not given in his statement to the police and he voluntarily stated that he was wearing t-shirt and jeans. He had talked with them for 10/15 minutes. The conversation went on while they were standing. The conversation took place inside the shop. Three boys came at about 1:30 to 2:00 pm. They were not known to him prior to the incident. The first bullet was fired on him between 7:15 and 7:30 pm and the second bullet was fired within seconds of the first. His son Rakesh Kumar was also present at the shop. He fell down after the second bullet hit him. The boy ran away after shooting him. He did not raise any alarm and voluntarily stated as there was no time. His son was keeping mobile from the show case. He further stated that he does not know which of the neighbourer said that two boys had fled away on the motorcycle after firing the bullet. The colour of the motorcycle was not told by neighbourers. Police did not call him at the police station to identify the accused and voluntarily stated that he was called at jail for TIP. He denied the suggestion that he had not identified the accused Rajesh Bhati in TIP on account of threat or that he had not identified the accused in TIP since FIR No.:146/05, PS : Bhajanpura Page 23 of 67 24 accused was not involved in the occurrence. He was confronted with some portions of his testimony where he had made certain improvements from the statement made to the police. It is not mentioned in his statement that had told to them that he himself had to take money and not they had to take money from him. It is also not mentioned that the person who called him in the afternoon of 27.4.2005 was telling himself as Manmohan Vikal. He also confronted with the portion where he stated that he asked him as to who was telling then he told that 'Hum Tumhare Baap Bol Rahe Hai'. He was further confronted with the portion where he stated that Manmohan Vikal told him that "kya tu Tara Chand hai", on this he answered "Main hi Tara Chand hoon." He was further confronted with the portion where he stated on this, Manmohan Vikal told that they were talking to him on telephone just now". He was further confronted with the portion where he stated that Manmohan Vikal further told him that he had to take money Rs.5 lacs from Mahender Mittal. He was further confronted with the portion where he stated he (accused) further told him that "Toone 5 lakhs Mahender Mittal ko dene hain, aur Mahender Mittal ne hume dene hain". He was further confronted with the portion where he stated that then on this, accused persons kept on talking on telephone for about 10-15 minutes".
19. He was also confronted with the portion of his statement where he stated that Rajesh Bhati accused told him that they were coming FIR No.:146/05, PS : Bhajanpura Page 24 of 67 25 in the evening upto 8:00 pm and he has to wait till their arrival at their shop and on this Nepal Chand @ Banta accused told "agar tu shaam ko dukaan par nahi mila to teri khopdi uda denge". He further confronted with the portion where he stated that he immediately looked forward and saw Rajesh Bhati accused having a pistol in his hand and he was also wearing a helmet, the glass of the helmet was found opened and his face was looking clear to him.
20. He further stated that he does not remember whether he had stated to the police in his statement that neighbourers told him that two boys also came on motorcycle no.3010 and after incident they ran away and after having seen his statement made to the police he stated that wrongly no. 3018 is recorded and it appears to be a typographical error.
21. He further stated that on 27.04.2005, he had one landline number and one mobile number in his name. The mobile number was 9312237086 and landline number was 011-22179252. On 27.4.2005, his son did not remain in the shop full time as he was coming and going, however, he was present at the time of the call and incident and voluntarily stated that he went either to the house or to the place of business. His son was carrying his own mobile at that time. The threatening call which came in afternoon was received on his mobile phone. He heard the telephone himself FIR No.:146/05, PS : Bhajanpura Page 25 of 67 26 and as the speaker was 'ON' his son also heard the same. The duration of call might be between 10-15 minutes. He also stated that he had not given the description of the person, who has given his name as Mukesh, to the police. All the three persons had entered in his shop at that time. He had given the description of the third person to the police. When he was sitting on the counter of his shop, he faced the shutter of his shop, which opens towards the main road. There was no customer in the shop at the time of incident. The person who gave him gun shot injury might have come in his shop one and half to two minutes prior to the gun shot injury. The distance between himself and the assailant was two and half ft. when he saw him after receiving the gun shot injury.
22. He stated that he did not participate in the TIP of accused Manmohan Vikal. He did not inform the police to get Manmohan Vikal identified from him whenever he is arrested. He came to know about the arrest of accused Manmohan Vikal from the newspaper that accused Manmohan has been arrested Crime Branch. He does not remember the date of the same. He did not go to the police station and voluntarily stated that he was in Kolkata on that day. He did not go to the police station after coming to Delhi for identifying accused Manmohan Vikal. He denied the suggestion that he identified the accused Manmohan Vikal at the instance of the police.
FIR No.:146/05, PS : Bhajanpura Page 26 of 6727
23. PW-3 Sh. Rakesh Kumar confronted with the portion where he stated that his father received telephone call on 27.04.2005 at about 12.40 PM, wherein, however, it is recorded that the phone call was received. He further confronted with the portion of his statement wherein it is not so mentioned that the caller was saying to his father that he (his father) owed Rs.5 Lacs to Mahender Mittal and Mahender Mittal owed Rs.5 Lacs to him (caller) and, therefore, he would recover the same from his father". He further confronted with the portion wherein it is not so mentioned that the caller also threatened that otherwise his father shall face the consequences". He admitted that the telephonic call was received at 12.40 PM was not heard by him and the content of the conversation was told to him by his father. Neither he nor his father lodged any complaint with the police or informed to the family members of accused Mahender Mittal between 12.40 PM to 7.00 PM regarding threatening call received by his father. He voluntarily stated that as it was shop time, the same could not be done. He does not remember as to how many customers had come to his shop between 12.40 PM till the time of the incident. He could not even tell whether the customers were 10, 50 or 100. He does not remember whether any known customer or regular customer had visited their shop on the said day. There were customers present at his shop when the three boys had come in connection with the telephonic calls at their shop. They had spoken to only those three boys, at that time and not with the FIR No.:146/05, PS : Bhajanpura Page 27 of 67 28 customers. Those three boys were speaking to his father in normal voice which was audible to him and the customer. He further stated that he does not remember whether he had stated to the police in any of his statements that one of the three persons who came to their shop had refused to disclose his name. After having seen the record he stated that he has not disclosed the above-said fact. He further stated that the person who had refused to disclose his name is Nepal and he had not disclosed to the police in any of his statements, the fact that Nepal @ Banta had refused to disclose his name.
24. He stated that he does not remember, however after having seen his statement wherein it is not mentioned that Rajesh Bhati told his father that he would be bringing Mahender Mittal in the evening time at your shop and you should remain there at about 8 PM". He stated that he had not disclosed to the police in any of his statements that "Nepal @ Banta told his father if he would not be at my shop at 8 PM, he (his father) would be killed and thereafter, all the accused persons went away while abusing my father". He was confronted with the portion where he stated that thereafter, some neighbourer told him that the boy who had ran away after firing at his father had gone on motorcycle whose make he do not remember and the motorcycle was bearing registration No. 3010 or 3018". He voluntarily stated at that time, he had given his statement to the police he remembered the make FIR No.:146/05, PS : Bhajanpura Page 28 of 67 29 of the motorcycle and also its number. He, however, does not know the name of the said neighbourer who had disclosed him the fact of motorcycle, its number, its make and the person going away on a particular direction.
25. He stated that he had not disclosed to the police as to who out of three persons had come to his shop at 7.20 PM and voluntarily stated as he did not know the said three persons, he did not disclose about one of them. He had disclosed to the police that one of the three persons who had come to his shop in the afternoon had come in the evening at 7.20 PM, he had not told the name/details to the police but it was Mukesh. He did not tell to the police in any of his statement that the person who had again come to his shop in the evening at 7.20 PM was the person who had disclosed his name as Mukesh. Police had enquired from him the details of the person who had come to his shop at 7.20 PM evening but the situation was such that he could not disclose the details of the said person as his father was admitted in the ICU of the hospital. The said fact was enquired from him by the police, at the time when his father's statement was already got recorded.
26. In his cross-examination on behalf of accused Rajesh Bhatti he stated that he alongwith his father had gone to Tihar Jail for TIP with IO. Threats were not received on any telephone number but some unknown persons used to meet them outside their house and FIR No.:146/05, PS : Bhajanpura Page 29 of 67 30 used to say not to identify accused Rajesh Bhati in TIP. Two days prior to the TIP, pressure was put on them. When they were going on motorcycle for the TIP of accused Rajesh, one unknown person looked like 'pehlwan' came on their way and stopped their motorcycle and threatened them that in case they identified accused Rajesh Bhati, he will kill them. They had not lodged any complaint against the threat and voluntarily stated that he had stated to the IO after the TIP that the threats were received by them. The police had told them that they are going for the identification of the accused namely Rajesh Bhati and Nepal Chand. He admitted that they have not heard the name of Rajesh Bhati and Nepal prior to the police telling them while going for the TIP. He had told to the said pehelwan person that he does not know any Rajesh Bhati and voluntarily stated the said pehlwan person told him that he does not have to identify the person who had given (gun) shot injury to his father.
27. Minor improvements have been pointed out in the cross-examination. However, it is settled law that the statement u/s 161 Cr.PC. and complaint i.e. FIR is are not encyclopedia of the case. Very nature of the statement u/s 161 Cr.PC and FIR are that it requires only those fact which are necessary for the case. Improvement made by this witness are only with respect to the conversation which took place on the telephone between Manmohan Vikal and Tara Chand and conversation took place at FIR No.:146/05, PS : Bhajanpura Page 30 of 67 31 their shop between the accused persons namely Manmohan Vikal, Rajesh Bhati and Nepal Cahnd @ Banta and the Tara Chand his father. PW Tara Chand in his statement Ex.PW-2/A has given crux of the conversation took place between them and sequence of events. He has not stated at length as to what exact conversation took place between them. The conversation explained in the examination-in-chief is also not contrary to what is stated earlier or not relevant. Even if those conversations are discarded, PW Tara Chand has stood the test of cross-examination with respect to the incident and the same is also finds corroboration from his son. The only contradiction which may appear to be material is that the son of the injured Tara Chand had not heard the conversation on telephone. However, PW-3 Rakesh was present at the shop and has seen three boys and also seen one boy who had caused gun shot injury to PW-2 Tara Chand. The improvements made are minor in nature and can safely be ignored. The testimony of both Tara Chand and Rakesh Kumar is reliable and trustworthy.
28. Now coming to the identity of the accused persons i.e. Manmohan Vikal, Rajesh Bhati and Nepal Chand @ Banta. The name of the accused Manmohan Vikal is given in first information report (FIR) i.e. complaint of Tara Chand who was the initial caller and thereafter he came alongwith other two at the shop. He was arrested on 3.1.2007 after about one year and eight months. Process u/s 82 Cr.PC was issued against them and Manmohan FIR No.:146/05, PS : Bhajanpura Page 31 of 67 32 Vikal has also refused to participate in test identification parade (TIP). However, for the reasons best known to the investigating officer the name of the judicial officer, who conducted the TIP was not mentioned in the list of witnesses. Therefore the witness could not be examined. Therefore, I am of the opinion that the same could not be proved. But the circumstances clearly shows that it was the accused Manmohan Vikal and the witnesses have ample time to see him at the scene of crime as the conversation went on for about 10/20 minutes. His name, which crop-up in the conversation on the telephone and thereafter he himself introduced as Manmohan Vikal to the injured Tara Chand at his shop. Accused Manmohan Vikal has not given any reason as to why the witnesses who are not known to him previously named him as both the witnesses have identified him being the person present at their shop. The hon'ble Supreme Court in Mahavir v. State of Delhi AIR 2008 SC 2343 held that TIP is not a substantive evidence. The substantive evidence is the identification by the witness in the court and non-conducting of the TIP is not fatal to the prosecution. In the present case, in the circumstances, even if there is no TIP the identity of the accused Manmohan Vikal stands established.
29. As regards accused Nepal Chand @ Banta, both witnesses have identified him in test identification parade (TIP) being the person who had visited at their shop alongwith other two. PWs identified FIR No.:146/05, PS : Bhajanpura Page 32 of 67 33 him as the person who had not disclosed his name at the spot.
30. As regards accused Rajesh Bhati, he stated that he had given his name as Mukesh and later on identified him in the court as Rajesh Bhati. PW-3 Rakesh Kumar also stated that accused has disclosed his name as Mukesh in the shop. Accused Rajesh Bhati could not be identified in the test identification parade (TIP) but both witnesses have consistently stated that they had received threats not to identify him and had made statement to the IO after the TIP having not identified him on account of threat. Accused Rajesh Bhati was identified as the person who has visited at the shop alongwith two others in the noon time and thereafter fired at Tara Chand in the evening.
31. PW-2 Sh. Rakesh Kumar was cross-examined on the point of threat at length and the witness has categorically stated that two days prior to the TIP, pressure was put on them not to identify the person who had fired at when they were going on motorcycle for the TIP, one unknown person look like 'pehlwan' came on their way and stopped their motorcycle and threatened them that in case they identified accused Rajesh Bhati, they will be killed. In cases like present one where the gun shot injury has been received, it is quite natural for the witnesses to become fearful and cases are not unknown where the witnesses have been extended threat to not identify the culprit the test identification FIR No.:146/05, PS : Bhajanpura Page 33 of 67 34 parade (TIP). The witness has also immediately made statement to the IO that he had not identified him since he was under threat. The witness has ample opportunity to see the accused Rajesh Bhati firstly when he had come alongwith other two and secondly when he had fired at injured Tara Chand. Therefore even if there is no test identification parade (TIP) of the accused Rajesh Bhati, yet the witnesses had the ample opportunity to see the accused properly, and therefore his identity is established. The purpose of TIP of is to find out the memory of the witnesses and the substantive evidence of the identity is the evidence of the witness given in the court. In the normal circumstances first time identification after the incident might be of weak type of evidence, however, under the circumstances of the present case where the witnesses had immediately made statement to the IO as to why they did not identify the accused before Ld. Metropolitan Magistrate. Before Ld. Metropolitan Magistrate, the witnesses had showed their incapability to identify the accused. It is not that they identified somebody wrong person and later on they have tried to improve. They had said main muljimo ko nahi pehchan sakta. Therefore it is not a case of wrong identification but not identify the accused for being under threat. Now, therefore, it is established on record that the accused persons namely Manmohan Vikal, Rajesh Bhati and Nepal Chand @ Banta had visited the shop at noon time at about 1:00 p.m. and thereafter at 7:20 p.m. Rajesh Bhati came and fired at Tara Chand which resulted in gun FIR No.:146/05, PS : Bhajanpura Page 34 of 67 35 shot injury on his chest and shoulder.
32. The accused persons have been charged under section 120B/109 IPC, 307 read with 120-B IPC and 506/34 IPC. Now question arises whether there was conspiracy between three accused persons to fire at Tara Chand.
33. The conspiracy is punishable u/s 120-B IPC and Section 120-A IPC defines criminal conspiracy, which read as under :
When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to the object.
34. Hon'ble Supreme Court in case titled K. Hasim v. State of Tamil Nadu AIR 2005 SC 128 observed that the essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete FIR No.:146/05, PS : Bhajanpura Page 35 of 67 36 when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See : American Jurisprudence, Vol.II, Sec. 23, p. 559.) For an offence punishable under section 120-B the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is no indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra capable of being enforced, if lawful, punishable it for a criminal object or for use of criminal means.
35. Section 10 of Indian Evidence Act makes anything said, done, or wrong doing by any of the conspirators in reference to their common intention is relevant fact against each of the person believed to be part of conspiracy.
FIR No.:146/05, PS : Bhajanpura Page 36 of 6737
36. The factum of establishment of conspiracy is to be inferred from the facts and circumstances and if the circumstances so suggest it has to be taken that the conspiracy is hatched. The sequence of events which commenced with the receiving of the telephonic call and their insistence to call injured and on his refusal visiting him after 20 minutes and again insisting Tara Chand to come to Milakpur village where Mahender Mittal is sitting and again on his refusal and thereafter firing at him, clearly established prior meeting of mind and conspiracy to fire at Tara Chand to give money and in pursuance of the conspiracy on his refusal he was fired at. The conspiracy can be further inferred from the conversation that accused Manmohan Vikal saying on telephone "hum tumahare baap bol rahe hain" and thereafter at his shop again Manmohan Vikal's saying that "Toone 5 lakh Mahender Mittal ko dene hain, aur Mahender Mittal ne hume dene hai", accused Rajesh Bhati saying "they were coming in the evening upto 8 p.m. and he has to wait till their arrival at their shop" and accused Nepal Chand @ Banta saying "agar tu shaam ko dukaan par nahi mila to teri khopdi uda denge". Therefore all the three accused persons conspired together. Once it is established that there was conspiracy made by three of them any act in furtherance of the conspiracy done and shall be proved against them under section 10 of the Indian Evidence Act. Therefore from the time when call was made till firing incident was done, anything said done in pursuance to the conspiracy i.e. act of each person can be FIR No.:146/05, PS : Bhajanpura Page 37 of 67 38 used against other person. Therefore the act of accused Rajesh Bhati of firing at Tara Chand and seriously injuring him shall be read against accused Manmohan Vikal and Nepal Chand @ Banta. Therefore the prosecution has established the offence u/s 120-B r/w Section 307 IPC against the accused persons namely Rajesh Bhati, Nepal Chand @ Banta and Manmohan Vikal.
37. Accused Rajesh Bhati in prosecution of the criminal conspiracy fired at Tara Chand. Two successive firing on Tara Chand one of which hit his vital part of the body i.e. chest clearly shows the intention of the person who had fired shot that he intended to kill him. As per the medical evidence, it has been proved that injured has been shot from very close range which had resulted in singeing and tattooing over the left side upper part of chest and on the right shoulder. Accused had intention to kill the injured and to achieve that end he has fired at the vital part of the body and therefore offence punishable u/s 307 IPC is established against accused Rajesh Bhati.
38. However, there is no evidence on record of threat, therefore offence punishable u/s 506 IPC is not made out against the accused persons.
39. Now coming to the accused persons namely Satish Kumar Vasant, Satender and Mukesh Goyal. PW-7 HC Satya Pal testified that on FIR No.:146/05, PS : Bhajanpura Page 38 of 67 39 6.5.2005, he again joined the investigation of this case alonwith Ct. Singh Raj and IO and reached at the house of Satish Bansal at Arjun Nagar West who was wanted in this case. They found the house was locked. Thereafter they went to the house of accused Mukesh who was also wanted in this case at 4/196, Gali No.4, West Kanti Nagar and he (accused) met them there. IO served him notice u/s 160 Cr.PC and brought him to the police station and IO interrogated him in the police station and accused confessed the commission of the offence of this case alongwith other accused persons and thereafter IO arrested him, took his personal search and recorded his disclosure statement. He admitted in his cross-examination that nothing was recovered in pursuance to the disclosure statement of the accused Mukesh which was recorded in the police station. PW-12 Singh Raj similarly corroborated PW-7. He also in his cross-examination stated that nothing was recovered in pursuance to the disclosure statement of the accused Mukesh.
40. PW-16 SI Vikram Singh testified that on 03.01.2007, he went to Tihar Jail and with the permission of the jail authority, he arrested the accused Satish Bansal, Satender and Manmohan Vikal. He received one day PC remand of accused Satender and Manmohan Vikal. He interrogated accused Satender and Manmohan Vikal and they gave him their disclosure statement. He further stated that no recovery was effected during the PC remand of said FIR No.:146/05, PS : Bhajanpura Page 39 of 67 40 accused persons. In his cross-examination he stated that no other evidence could be collected against accused Satender except disclosure statement of the accused persons. Therefore apart from the disclosure statement made by the accused persons which has not lead to discovery of any fact, there is no other evidence on record. The confession made to the police and confessional statement in the police custody are not made admissible u/s 25/26 of the Indian Evidence Act. Therefore there is no legally admissible evidence against accused persons namely Satender, Mukesh Goyal and Satish Bansal and therefore they are liable to be acquittal.
41. Now we are left with the accused Mahender Mittal. It is to be seen whether accused Mahender Mittal conspired with the other three accused persons who committed the offence. PW-2 Tara Chand had stated in his initial statement that he is doing the business of mobile phone sale and purchase for last two to two and half years. Before that he was working with Mahender Gujjar in partnership at Gandhi Nagar and about three years ago they separated and since then he has been receiving telephonic call of Mahender Mittal and his acquaintance that on account of him Mahender Mittal has suffered loss of Rs.5 lacs and they used to talk regarding returning of money. About one year ago Mahender Mittal had made complaint against him that he had called him for making accounts and threatened him showing him katta. Inquiry FIR No.:146/05, PS : Bhajanpura Page 40 of 67 41 was done at the police station Khajuri Khas and all the incident was found to be false. Mahender has never come to his house. Thereafter he also received several telephone calls and he has the details of the same. Thereafter at about 12:41 p.m. on the day of incident, he received telephonic call of Vikal Gujjar was stating that he has to take money from Mahender Mittal and Mahender Mittal has to take money from him (witness) and asked him to come to Usmanpur to clear the accounts. In his cross-examination he was confronted with the portion where he stated that he was working as a partner in ladies suit business at Katra Neel, Chandani Chowk with accused Mahender Mittal. He stated that he does not remember whether he stated to the police in his statement that three more persons also used to sit at the said shop of lady suit namely Ram Niwas, Balbir Singh and one more person whose name he does not remember. He further stated that he does not remember whether he had stated to the police in his statement that he worked with them for about six months in partnership and left partnership which was running in loss or that accused Mahender Mittal insisted him to come and sit at the shop but he refused or that Mahender Mittal told him that he would recover the loss of the business amounting to Rs.5 lacs from him, despite the fact that he had to take Rs.50 lacs from him or that he demanded him (accused) Rs.5 lacs from him and on this Mahender Mittal started causing threatening him with the help of his associates or that accused Mahender Mittal also threatened him directly that either FIR No.:146/05, PS : Bhajanpura Page 41 of 67 42 he will force him to sell bananas on the handcraft or he shall kill him (sic).
42. He further stated that he had not shown to the police from the date of incident till the chargesheet was filed any document to the effect that Mahender owed a sum of Rs.5 lacs towards him or that an outstanding of Rs.5 lacs is existing against accused Mahender Mittal. He has no document to show as on day of his evidence. He had not shown any document to the police regarding partnership between himself and accused Mahender Mittal nor he produced any witness to this effect and voluntarily stated that it was an oral partnership. He had given a complaint prior to the registration of the FIR to the effect that he is being threatened by the persons at the instance of Mahender Mittal who are demanding money from him but he cannot produce the same when examined and stated that he can produce the same. He further stated that he does not remember whether he had lodged any complaint against accused Mahender Mittal to the police or any other authority to the effect that accused Mahender Mittal had threatened him of killing and of making him to sell bananas on rehri. He had not given any complaint to the police or any other authority prior to the registration of the FIR about the persons who used to threatened him for demanding money and voluntarily stated that he was in danger of his life and as such he did not lodge any complaitn as he did not want to escalate the conflict. He FIR No.:146/05, PS : Bhajanpura Page 42 of 67 43 stated that he know one Kishan Kumar who is doing business of ladies suit at Katra Neel and voluntarily stated that he knows him through Mahender Mittal. He does not know the persons with the name Jagdish Singh and Babu Singh. He had never demanded Rs. 5 lacs from accused Mahender Mittal in writing and voluntarily stated he had orally demanded the same. He further stated that he knows almost all the family members of the accused Mahender Mittal and those are Yaswant Kumar, Bhusan Kumar, Rakesh Kumar and Mitra Sen are the brothers. He knows all the family members of accused Mahender Mittal. The court observed that witness has taken time to reply the same. He further stated that he remembered the residence landline telephone number of accused Mahender Mittal prior to the FIR of this case, however, he did not remember the mobile number and telephone number of shop and again said that he might have remembered the telephone number of shop at that time. He had residence landline telephone number of Yaswant Kumar at that time. He had told Yaswant and Mitra Sen, brothers of Mahender Mittal regarding threats received by him and the money owed by accused Mahender Mittal towards him prior to 27.4.2005, the date of incident. He does not remember the date, time, month and year of his such meetings with them. He did not make any telephonic call to either through the landline number of his shop or his mobile phone on 27.4.2005 from 12:00 noon to 7:00 pm to Mahender Mittal, any of his family members which were known to him or to the police that FIR No.:146/05, PS : Bhajanpura Page 43 of 67 44 certain persons had come to my shop and had given him threats. He did not make any written complaint either on his own or through any of his representative during the aforesaid period of 27.04.2005 to the police or any other authority. He did not make any call at about 1:30 to 2:00 pm, either to the mobile phone, residence landline phone or on the phone of the shop of accused Mahender Mittal either through his own phone or through the phone of the said three persons, when three persons came to his shop and told him about Mahender Mittal owing money towards them to verify whether those persons were sent by Mahender Mittal and as to where Mahender Mittal location is. He further stated that a criminal case is pending against him and the same is u/s 308 IPC and voluntarily stated the said case has been registered at the instance of accused in order to pressurize him. The accused facing trial in this court are not complainants and witness in the said case. The said case was registered on the complaint of Chaman Giri and Mahender Kumar Mittal has good relations for the last seven years. He denied the suggestion that Chaman Giri has no relation whatsoever with Mahender Kr. Mittal and none of the accused in the present case have any concern with the case pending against him.
43. He had given one complaint in the court to the effect that the case which has been registered against him has been got registered at the instance of accused in the present case and the said complaint FIR No.:146/05, PS : Bhajanpura Page 44 of 67 45 lodged to the predecessor of this court itself and the same is Ex.PW-2/DB. He had also lodged a complaint to the police in this regard. He does not remember the date of lodging of the said complaint but it must be after 6.8.2006 and the same was lodged to the commissioner of police, DCP, and SHO Khajuri Khas.
44. He admitted that he was having a licenced revolver before 6.8.2006, however he could tell the date of issuance of the said licence and voluntarily stated that the same was issued after 27.4.2005. He stated that he cannot show the copy of the said licence. He denied the suggestion that he is having licenced revolver prior to 27.4.2005 or that he is not showing the copy of licence as the same was issued prior to 27.4.2005. He admitted that Mahender Mittal had lodged a complaint in PS Khajuri against him prior to the present FIR and he appeared at PS in connection with the complaint but voluntarily stated that the said complaint was found false. The complaint was lodged by Mahender Mittal in PS Khajuri as Mahender Mittal had told to the police that he (witness) had to pay some amount to Mahender Mittal and on his refusing and threatening Mahender Mittal, the complaint was lodged by him. He denied the suggestion that police had suggested accused Mahender Mittal that the matter is of the civil nature and to approach the civil court for recovery. However, he admitted that he was doing property business and also dealership in the same, volunteered, he was put into the said FIR No.:146/05, PS : Bhajanpura Page 45 of 67 46 business by accused Mahender Mittal in the year 1999. He had produced copy of the arm licence Ex.PW-2/DH which was issued on 5.10.2005 which apparently is issued subsequently to the present incident. He had given complaint dated 8.10.2007 wherein he stated that since accused Nepal Chand was not getting the bail, the accused persons planned to implicate the applicant and his sons in some false case and the applicant and his sons were falsely implicated in the FIR No.336/06, dated 6.8.2006 u/s 353/186/308/332/336/506/34 IPC, PS Khajuri and accused persons are threatening.
45. PW-3 Sh. Rakesh Kumar son of the injured admitted in his cross-examination that he had not stated to the police in any of his statement that he had seen accused Mahender Mittal once in his PCO shop. He was confronted with the portion where he stated that the business of partnership between his father accused Mahender Mittal was dissolved or that his father after the dissolving of the partnership business used to receive threatening calls. He also admitted that he came to know about the business transactions between his father and accused Mahender Mittal from his father and he had no personal knowledge. His father was doing the business of property dealing since the year 1990. He also admitted that his father was doing the property dealing business alone without any partner. He does not have any personal knowledge about the occupation of accused Mahender Mittal.
FIR No.:146/05, PS : Bhajanpura Page 46 of 6747 Accused Mahender Mittal is having his shop of ladies suits at Chandni Chowk and he is the resident of Gandhi Nagar. He does not remember the addresses of his shop as well of his residence. He did not see any document with his father which suggest that his father was having partnership business with accused Mahender Mittal before or after the incident. He stated that prior to the incident, only once, he had seen accused Mahender Mittal and that too at his own STD-PCO shop but he does not remember the date, month or year of the same. He even could not tell whether it was one year, two years, five years before the incident when he had seen Mahender Mittal at his shop. He also cannot tell as to what talks were exchanged between his father and accused Mahender Mittal. He also stated that neither he nor his father made any call to the police or to any family member of accused Mahender Mittal regarding threats being extended at the instance of accused Mahender Mittal and his sitting in Usmanpur nor sent his brother or any other family member either to police station, Usmanpur, residents of accused Mahender Mittal at Gandhi Nagar, business place of Mahender Mittal at Chandani Chowk in order to verify the location of Mahender Mittal or about the genuineness of the telephonic call received by his father. He does not know whether his father had the mobile number of land-line of accused Mahender Mittal. He admitted that he is a co-accused alongwith his father in a criminal case which is u/s 308 IPC pending in the court. The said case is in furtherance of a quarrel regarding a FIR No.:146/05, PS : Bhajanpura Page 47 of 67 48 mobile phone. He denied the suggestion that the case is in furtherance of quarrel due to property dispute which was being dealt by his father and voluntarily stated that the said quarrel was without any reason. He also denied that his father is dealing in disputed properties. He never heard in his house regarding the loss incurred by his father in the sale purchase of plots due to dealing in disputed property.
46. Therefore on the day of incident, the name of accused Mahender Mittal was given by the assailants, however the accused was not seen nor heard. After receipt of the call of demand, the said call was not verified from the accused Mahender Mittal whether those persons had come to the shop, on behalf of accused Mahender Mittal. As per the statements of Tara Chand, he was running mobile shop for about 5 years before the incident and before that for two years he was running STD-SHOP and before that he had worked with Maheder Mittal as the partner in the lady suit business and had run partnership for about six months. Therefore the transaction, if any, was about 7 years old at the time of incident. The witness has merely stated thereafter he used to receive threatening call on behalf of Mahender Mittal but there are no specific instances as to when before the incident he received any such threat. He had stated that about one year ago accused Mahender Mittal had made complaint against him and called for accounting and had shown him katta which was FIR No.:146/05, PS : Bhajanpura Page 48 of 67 49 inquired by PS Khajuri Khas and said incident was found to be false and thereafter accused Mahender Mittal never came to his house. Thereafter he also received several telephone calls and he has the details of the same. In his cross-examination he stated that he had given complaint to the police regarding threats received on behalf of accused Mahender Mittal and cannot produce the same and stated that he can produce the same. Then he was directed to bring the copy of the complaint made between 27.4.2005 to 30.6.2005 and copy of his arm licence. But he produced the copy of the arm licence but could no produced any such complaint. He admitted that Mahender Mittal had lodged a complaint in PS Khajuri against him prior tot he present FIR and he appeared at PS in connection with the complaint. He denied the suggestion that police had suggested accused Mahender Mittal that the matter is of the civil nature and to approach the civil court for recovery or that in order to wriggle out from his liability outstanding towards accused Mahender Mittal, he got him falsely implicated in this case. He voluntarily stated that he had purchased two plots jointly with accused Mahender Mittal, which were in the name of accused Mahender Mittal as the major amount was invested by accused Mahender Mittal. He admitted that he was doing property business and also dealership in the same, and voluntarily stated he was put into the said business by accused Mahender Mittal in the year 1999. He also denied the suggestion that he was into the property business prior to meeting accused Mahender Mittal and FIR No.:146/05, PS : Bhajanpura Page 49 of 67 50 he was doing the same alone or that he had not been partner in any purchase of joint property with accused Mahender Mittal. He also denied the suggestion due to his property business, he is in company of certain notorious people of North East District of Delhi or that being in company of those people, he is involved in several quarrels or that due to aforesaid reasons, quarrel, FIR was registered against him.
47. The son of the injured Tara Chand namely Rakesh Kumar stated that the FIR was registered against them regarding quarrel which had taken place on account of mobile phone whereas injured TARA Chand tried to give colour to the said case being registered in order to pressurize him in this case. Further in the said incident Mahender Mittah has himself approached the police and lodged the complaint against witness Tara Chand about one year back. There is no live connection from the them when he had given complaint till the incident which shows that he had conspired with the assailant. There is no other evidence on record to suggest that accused Mahender Mittal was party to the conspiracy hatched by the assailants. The complainant did not verify the fact whether those persons were genuinely came to the shop on behalf of accused Mahender Mittal or had merely given his name. Accused Mahender Mittal was also not seen near the place of occurrence and at the most he can be suspected with motive. But suspicion cannot take place of legal prove to establish conspiracy on behalf FIR No.:146/05, PS : Bhajanpura Page 50 of 67 51 of Mahender Mittal and some overt act must be shown.
48. Now coming to the arrest story of the accused Mahender Mittal.
PW-12 Ct. Singhraj testified that on 27.4.2005, he alongwith HC Satyapal and IO of this case reached at Gambri Road, 5th Pushta in search of accused as the IO was having the secret information that accused Mahender Mittal would come at 5th Pushta to meet his brother. At about 3:00 am (mid night), on the pointing out of the secret informer, accused Mahender Mittal was arrested and his confessional statement was recorded. PW-7 HC Satyapal similarly corroborated PW-12 that accused Mahender Mittal was apprehended on the pointing out of secret informer. IO PW-17 Inspector V. S. Punia similarly stated so.
49. In his examination-in-chief, PW-7 HC Satya Pal stated that they were present at Gamri Road in the investigation of this case and at about 2:00 a.m. midnight, secret informer met with the IO and informed that accused Mahender Mittal who is wanted in this case would come at Bhajanpura to meet his brother and thereafter IO asked four/five public person to join the investigation but none agreed and they left and thereafter at about 2:30 a.m. the accused Mahender Mittal was apprehended and arrested whereas PW-12 does not say that any public person was requested to join and given the time of arrest as 3:00 a.m. PW-7 stated in his cross-examination on behalf of accused Mahender Mittal that they FIR No.:146/05, PS : Bhajanpura Page 51 of 67 52 left the police station at about 12:00 mid night on the intervening night of 1st and 2nd May, 2005. IO had made the departure entry in the daily diary register but he does not remember the exact time. The secret informer met them at Gamri Road near 5th Pushta at 2:00 a.m. They reached at Gambri Road at about 2:00 mid night. The Gamri Road is connected to Pushta Road and even at the night there was enough movement of people and traffic. The distance between the police station and Gamri Road is about 1 and 1 ½ km. At the time the people moving on Gamri Road were asked by the IO to join the investigation. IO did not record the name and the description of the people who refused to join the investigation and no notice was given to said person in his presence. He further stated that he was not aware whether prior to moving from the PS the IO had the knowledge or any photograph regarding identity or description of Mahender Mittal. In his presence, the IO had not asked the physical description of accused Mahender Mittal from the secret informer. He stated that IO was on his motorcycle and he and Singh Raj were on another motorcycle. The said motorcycles were personal. He does not remember as to at what time the information was given to any of the member of the family of accused Mahender Mittal regarding his arrest and he does not remember as to on which number the said information was given. He stated that disclosure statement, personal search memo and arrest memo of the accused are in the handwriting of the IO. He denied the suggestion that accused FIR No.:146/05, PS : Bhajanpura Page 52 of 67 53 Mahender Mittal had on his own come to the police station on 1.2.2005 as he was called upon by the IO of this case from his house or that accused had not given any disclosure in his presence or that signatures of accused Mahender Mittal were taken by the IO on his on whims as accused Mahender Mittal was under arrest. On the other hand, PW-12 stated in his cross-examination, the departure entry was made in the police station after receiving the secret information but he does not remember its number. Whereas PW-17 IO stated in his cross-examination that he does not remember whether during the period the investigation remained with him, he had the mobile number and landline number of Mahender Mittal. He had not done any investigation from the injured or his son to gather the mobile number or landline number of Mahender Mittal. He had not recorded any statement of any nodal officer or concerned official of service provider company to the effect that the particular number belongs to Mahender Mittal. He had not collected any detail from the service provider company in order to testify that particular mobile numbers belongs to Mahender Mittal or Satish Bansal. He stated that he must have called at the mobile numbers and landline numbers apart from the numbers of injured and his son from the police station number but he cannot tell which numbers were called by him and what came in response on their calling. He does not remember whether during the investigation, he had made any call either through the police station number or his own number at FIR No.:146/05, PS : Bhajanpura Page 53 of 67 54 mobile number 9810612537. Till the investigation remained with him, he had not made any investigation to the effect either through police nodal officer or the nodal officers of mobile service provide of mobile number 9810612537 as to at which location the said number is being used or running. He denied the suggestion that he had not done any such investigation because Mahender Mittal on his own had come to the police station and the entire statement/story of arresting Mahender Mittal on secret information is false and concocted.
50. The version regarding apprehension of the accused on the pointing out of secret information appears to be false as the IO had mobile number and the injured had named him and had also his telephone number and other witnesses of arrest have given total inconsistent statement. Therefore the defence version of the accused that he himself came to the police station where he was arrested appears to be plausible. Since accused Mahender Mittal himself appeared and there is no live link in complaint made by Mahender Mittal, I am of the opinion that there is no evidence on record to establish conspiracy on the part of Mahender Mittal with the assailants. Accused accused is entitled to benefit of doubt.
51. Now coming to the defence of the accused Manmohan Vikal. He stated that he was in Tihar Jail and falsely arrested from Tihar Jail itself in this case. He is innocent. In the face of cogent evidence FIR No.:146/05, PS : Bhajanpura Page 54 of 67 55 against the accused, the defence of the accused which is that of total denial and does not stand. Accused Nepal stated that he was shown by the police to the witnesses before his TIP and complainant identified him at the instance of the police officials and he has been falsely implicated in this case. He neither stated in his TIP proceedings nor any suggestion has been given in this regard to any of the witnesses when he was shown to them before TIP and therefore defence is not substantiated. Accused Rajesh Bhati stated in his defence that he was shown to the witnesses by the police before his TIP and he did not give any threat to the witnesses during the TIP proceedings. The defence of the accused Rajesh Bhati rather prove the version of the witnesses as he claims that he was shown to the witnesses prior to TIP, despite witnesses has not identified him. Meaning thereby they were threatened and therefore have not identified him. The defence of the accused is also not substantiated and liable to be rejected.
52. As per discussion above, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 120B r/w section 307 IPC against accused Manmohan Vikal, Rajesh Bhati and Nepal Chand @ Banta beyond reasonable doubt and offence punishable u/s 307 IPC against accused Rajesh Bhati beyond reasonable doubt. Accordingly, they are convicted. However, the prosecution has failed to prove their case against accused persons namely Mukesh Goyal, Satish Kr. Vasant and Satender.
FIR No.:146/05, PS : Bhajanpura Page 55 of 6756 Accordingly their are acquitted of the charges. Accused Mahender Mittal is given benefit of doubt and hence acquitted of the charges. Bail bonds of accused Mahender Mittal, Mukesh Goyal, Satish Kr. Vasant and Satender stand cancelled. Their sureties discharged. Case property, if any, be destroyed after the expiry of period of appeal.
53. Let accused be heard on quantum of sentence. Announced in open court today i.e. 30.07.2011 GURDEEP SINGH ASJ-04/NE/KKD/30.07.2011 FIR No.:146/05, PS : Bhajanpura Page 56 of 67 57 IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS : DELHI FIR No. : 146/05 PS : Bhajanpura U/s : 307/120-B/506 IPC.
ORDER ON SENTENCE - CONVICT RAJESH BHATI 4.8.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Rajesh Bhati produced in j/c.
Sh. Abdul Sattar, Advocate, Amicus Curiae for convict.
Heard on the point of sentence.
It is submitted on behalf of the convict that convict is a young person, aged about 30 years and is not previous convict. He is agriculturist by profession and he has old father and four children to support. He is sole bread earner of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that there are many involvements of the convict and during the course of trial, the convict was produced from different jails for time to time with respect to the involvement in other cases. It is further submitted that this is not an ordinary offence. In this case, the convict had acted as extortionist and FIR No.:146/05, PS : Bhajanpura Page 57 of 67 58 when the injured Tara Chand refused to accede to their demands he fired at him not only to kill him but also to create fear in the mind of general public so that nobody dare to refuse to accede to their demand. Therefore in order to keep safety of the public persons the convict must be given exemplary sentence.
The convict in this case has been convicted for offences punishable u/s 307 IPC and 120-B r/w Section 307 IPC.
Section 307 IPC reads as under :
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 [imprisonment for life], or to such punishment as is hereinbefore mentioned.
In this case, the convict has fired at two bullets shot on the injured from close range at vital part and one bullet is still lodged in his body and is endangering his life. Further he has hatched conspiracy with other convicts in prosecution of their work of extortion. I am in agreement with Ld. Addl. PP that this is not a crime arising out of the ordinary fight but it was calculated pre-planned, cold blooded offence and convict does not deserve any leniency. Keeping in view the facts and circumstances of the case, I am of the opinion that ends of justice would be met in FIR No.:146/05, PS : Bhajanpura Page 58 of 67 59 sentencing the convict to undergo rigorous imprisonment (RI) for a period of 10 years and fine of Rs.50,000/- for offence punishable u/s 307 IPC. In default of payment of fine, he shall further simple (SI) imprisonment for period of one year.
120-B IPC reads as under :
120-B. Punishment of criminal conspiracy. - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provisions is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
109 IPC reads as under :
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment - Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Section 120-B is a distinct offence, where offender is the party to the criminal conspiracy punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where FIR No.:146/05, PS : Bhajanpura Page 59 of 67 60 no express provisions is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Section 109 IPC provides punishment of abetment where no expression provision is made for its punishment. It provides punishment in such cases be the same as punishment provided for the offence. Accordingly punishment u/s 120-B for the present offence shall be the same as for offence punishable u/s 307 IPC. Therefore convict is further sentenced to undergo rigorous imprisonment (RI) for a period of 10 years and fine of Rs.50,000/- for offence punishable u/s 120-B r/w Section 307 IPC. In default of payment of fine, he shall further simple (SI) imprisonment for period of one year.
Fine if recovered be paid to the injured Tara Chand as compensation.
Both the sentences shall run one after the another.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of charge, evidence, all exhibited documents, SA, judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. File be consigned to record room.
Announced in the open Court today i.e on 4.8.2011 GURDEEP SINGH/ASJ-04/NE/KKD/4.8.2011 FIR No.:146/05, PS : Bhajanpura Page 60 of 67 61 IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI FIR No. : 146/05 PS : Bhajanpura U/s : 307/120-B/506 IPC.
ORDER ON SENTENCE - CONVICT NEPAL CHAND @ BANTA 4.8.2011
Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Nepal Chand @ Banta produced in j/c.
Sh. Satender Singh, Advocate for convict Nepal Chand @ Banta.
Heard on the point of sentence.
It is submitted on behalf of the convict that convict is a young person, aged about 28 years and is not previous convict. He has mother and wife who is an advocate. He is only male member in family. It is further submitted that he has suffered from spinal cord injury and he is unable to conduct his day to day chores. It is further submitted that he has not participated in the offence and he is convicted only for committing the conspiracy. Ld. Counsel for convict further submitted that probation was given in case 304 (II) and cited judgment case titled as Siddesh Anil Ahirsat v. State of Maharashtra, 2009 Crl. L. J. (NOC) 324 (BOM.) Therefore, lenient view is prayed for convict.FIR No.:146/05, PS : Bhajanpura Page 61 of 67
62 On the other hand, Ld. Addl. P.P. submitted that the convict has hatched conspiracy with other two co-convicts and in fact had visited the shop of the injured before the execution of the offence by other co-convicts and had actively participated in the offence. It is further submitted that in such type of offence where actual motive is to extort and create fear. To keep the society crime free, it is necessary these persons should be given maximum punishment so that message is given to the society that no such act would be tolerated.
The convict in this case has been convicted for offences punishable u/s 120-B r/w Section 307 IPC. The act of the conspirator is not less than actual executor as executor requires the active help, participation of the conspirator and that is why the legislature in its wisdom has provided sentence to the offence of conspiracy same as that of actual offence.
The cited judgment is NOC and facts have not been given and whatever little fact has been given, it is clearly distinguishable. In the said case, the accused had gone to take the arrears of his salary and when employer refused, he wanted to recover the same took out knife, which is clearly distinguishable.
Therefore keeping in view the facts and circumstances of the case, nature of offence and in the manner the same has been executed with cold blooded manner, I am of the opinion that convict does not deserve any leniency. Therefore I am of the opinion that ends of justice would be FIR No.:146/05, PS : Bhajanpura Page 62 of 67 63 met in sentencing the convict to undergo rigorous imprisonment (RI) for a period of 10 (ten) years and fine of Rs 50,000/- for offence punishable u/s 120-B r/w Section 307 IPC. In default of payment of fine, he shall further undergo simple imprisonment (SI) for period of one year.
Fine if recovered be paid to the injured Tara Chand as compensation.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. File be consigned to record room. Announced in the open Court today i.e on 4.8.2011 GURDEEP SINGH ASJ-04/NE/KKD/4.8.2011 FIR No.:146/05, PS : Bhajanpura Page 63 of 67 64 IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI FIR No. : 146/05 PS : Bhajanpura U/s : 307/120-B/506 IPC.
ORDER ON SENTENCE - CONVICT MANMOHAN VIKAL.
4.8.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Manmohan Vikal produced in j/c.
Sh. Swarn Singh, Advocate for convict.
Heard on the point of sentence.
It is submitted on behalf of the convict that convict is a young person, aged about 35 years and is not previous convict. He has children and old aged parents to support. He is agriculturist by profession. Therefore, lenient view is prayed for convict. In support of his arguments, Ld. Counsel for convict cited judgments in case titled as Darshan Singh v. State of Punjab (P&H), 2010 (4) C.C. Cases (HC) 220 and Pashora Singh & Anr. v. State of Punjab, AIR 1993 Supreme Court 1256.
On the other hand, Ld. Addl. P.P. submitted that the convict has hatched conspiracy with other two co-convicts and in fact had visited the FIR No.:146/05, PS : Bhajanpura Page 64 of 67 65 shop of the injured before the execution of the offence by other co-convicts and had actively participated in the offence. It is further submitted that in such type of offence where actual motive is to extort and create fear. To keep the society crime free, it is necessary these persons should be given maximum punishment so that message is given to the society that no such act would be tolerated.
The convict in this case has been convicted for offences punishable u/s 120-B r/w Section 307 IPC. The act of the conspirator is not less than actual executor as executor requires the active help, participation of the conspirator and that is why the legislature in its wisdom has provided sentence to the offence of conspiracy same as that of actual offence.
The cited judgments are not applicable to the facts of the present case and are distinguishable. In the cited judgment of Darshan Singh v. State of Punjab (P&H), hon'ble High Court had relied upon the judgment of hon'ble Supreme Court wherein the appellant was aged about 70 years and was suffering from Asthma and had clean record and was also suffering from other ailments and faces trial for about 16 years, was sentenced to period he had already undergone. Hon'ble High Court relied upon the judgment wherein the appellant had remained in jail custody for about 9 and ½ months and had suffered protracted trial for about 16 years. The cited case does not apply to the facts of the present case. In the present case, there was trial for about 6 years and trial got delayed on account of accused being custody in some other case in other States. The FIR No.:146/05, PS : Bhajanpura Page 65 of 67 66 cited judgment has no application to the case in hand.
The cited judgment of Pashora Singh and another v. State of Punjab of hon'ble Supreme Court is also not applicable to the facts of the present case. In the said case convict/appellant was convicted for offence punishable u/s 326/34 IPC and in the present case the convict is convicted for offence punishable u/s 120-B r/w Section 307 IPC.
Therefore keeping in view the facts and circumstances of the case, nature of offence and in the manner the same has been executed with cold blooded manner with motive to extort and create fear, I am of the opinion that convict does not deserve any leniency. Therefore I am of the opinion that ends of justice would be met in sentencing the convict to undergo rigorous imprisonment (RI) for a period of 10 (ten) years and fine of Rs 50,000/- for offence punishable u/s 120-B r/w Section 307 IPC. In default of payment of fine, he shall further undergo simple imprisonment (SI) for period of one year.
Fine if recovered be paid to the injured Tara Chand as compensation.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. File be consigned to record room. Announced in the open Court today i.e on 4.8.2011 FIR No.:146/05, PS : Bhajanpura Page 66 of 67 67 GURDEEP SINGH ASJ-04/NE/KKD/4.8.2011 FIR No.:146/05, PS : Bhajanpura Page 67 of 67