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[Cites 9, Cited by 0]

Delhi District Court

State vs Navrattan on 22 December, 2014

    IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL 
     SESSIONS JUDGE­4 (SOUTH DISTRICT), NEW DELHI
                                    
Sessions Case No. 82/14 (Original no. 80/10)
Unique ID No.: 02403R0282282010

FIR No. 104/09
Police Station : Lodhi Colony

In the matter of:


State


                                             VERSUS


Navrattan,
S/o Sh. Phool Singh, 
R/o Sheetal Nagar,
Opposite Water Works,
Jhajjar Road, 
Rohtak, Haryana                                                                      ........Accused


Date of Institution                : 27.3.2010
Date of Reserving judgment: 17.12.2014
Date of pronouncement      : 22.12.2014


For State                   :        Mr. Inder Kumar, Additional Public 

Sessions Case No. 82/14                                                                Page no. 1 of 48 
                                      Prosecutor.
For Defence                 :        Mr. Ajay Pal, Advocate.
  
JUDGMENT :

Navrattan, aged 55 years, has been committed for trial by Ms. Gitanjali Goel, Metropolitan Magistrate, New Delhi; and therefore, he stands charged with the commission of offence punishable under section 307 of the Indian Penal Code, namely, that he, on 25.6.2009 at about 10.40 pm, at CNG Pump Hemkund Service Station, Lodhi Colony, New Delhi, fired upon Rahat Sharma (PW2) from his Rifle/Gun Ex. P­1 and caused him grievous injury with such intention or knowledge and under such circumstances that if he, by that act, had caused death of Rahat Sharma, he would have been guilty of his murder.

2. The circumstances leading up to the committal of the case and consequent charge against the accused, as per the police report, are that on 25.6.2009 having received copy of daily diary (DD) entry no.19A Ex. PW6/A, Sub­Inspector (SI) Ajit Pal Tomar (PW16) alongwith Head Constable (HC) Rajbir (PW3) reached CNG Pump Hemkund Service Station, where he came to know that the injured had already been removed to hospital, and at the spot, Varun Aggarwal Sessions Case No. 82/14 Page no. 2 of 48 (PW4) son of Pradeep Aggarwal produced a person alongwith a 12 bore gun, live cartridges and one fired cartridge, which were seized by the said SI; that having left Navrattan son of Phool Singh, resident of Village Sheetal Nagar, Rohtak, Haryana in the custody of HC Rajbir at the spot, SI Ajit Pal Tomar went to Moolchand Hospital, where he collected medico legal case (MLC) report no.126/09 of injured Rahat Sharma son of Vinod Sharma, resident of E­119, East of Kailash, New Delhi, whereupon the patient was declared as fit for making statement. Thereafter, the said SI Ajit Pal Tomar recorded statement Ex. PW2/A of Rahat Sharma, who stated that he was working as Regional HR Manager in Development Credit Bank, and on that day at about 10.40 pm, while he was going to his home at Defence Colony, CNG gas in his car had exhausted, so, for refilling of the gas, he stopped at CNG Pump, Near CGO Complex (Hemkund Service Station) and at that time his friends Manoj (PW5) son of Surendra and Varun Aggarwal were also with him in Swift Maruti car bearing registration no. HR 51Z 3093; that while his friend was having the gas filled in the car, he started strolling around, and then a phone call was received by him from his home and he started talking on the phone, and then the guard asked him not to talk on the phone and he finished talking on the Sessions Case No. 82/14 Page no. 3 of 48 phone; that even thereafter the guard kept on threatening him and when he asked the guard to not to do so, the guard, in anger, by using his gun, fired at him, resulting the cartridge piercing through his left hand; that his friends caught hold of the guard, whose name was revealed as Navrattan son of Phool Singh resident of village Sheetal Nagar, Rohtak; that his friends brought him to the Hospital, where he was put under treatment.

3. As per the police report, on the basis of statement Ex. PW2/A of Rahat Sharma and MLC report no. 126/09, SI Ajit Pal Tomar, through HC Rajbir, got registered first information report (FIR) no. 104/09 (copy: Ex. PW1/A) under section 307 of the Indian Penal Code and embarked upon the investigation. During the investigation of the case, SI Ajit Pal Tomar, the investigating officer (IO) arrested accused Navrattan, seized his gun Ex. P­1 and cartridges Ex. P­2 to Ex. P­5 and got analyzed the same at Central Forensic Science Laboratory (CFSL), Central Bureau of Investigation (CBI), New Delhi. After collecting evidence, on 27.3.2010, a police report was put up before the Metropolitan Magistrate with object to prosecute and punish the accused for his having committed offence punishable under section 307 of the Indian Penal Code.

Sessions Case No. 82/14 Page no. 4 of 48

4. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate, having taken cognizance of the offence, procured the presence of the accused and thereafter, complied with the provisions of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.). On 17.8.2010, the case was committed to the Court of Session.

5. On 23.2.2012, after hearing the Additional Public Prosecutor, counsel for the accused and the accused, the charge was framed against the accused for his having committed offence punishable under section 307 of the Indian Penal Code. The charge was read over and explained to the accused, to which he did not plead guilty and claimed trial.

6. In support of its case the prosecution got examined PW1 HC Kulbir Singh, PW2 Rahat Sharma, PW3 HC Rajbir Singh (No. 3599/SD), PW4 Varun Aggarwal, PW5 Manoj, PW6 HC Rajbir Singh (No. 21/SD), PW7 Dr. Rajesh Sinha, Associate Professor, Dr. Rajendra Prasad Centre for Ophthalmic Sciences, All India Institute of Medical Sciences (AIIMS), New Delhi, PW8 Dr. Ranjan Joshi, Chief Medical Officer (CMO), Moolchand Hospital, New Delhi, PW9 Swapan Pal, PW10 K.V.K. Mani, PW11 N. B. Bardhan, Principal Scientific Officer Sessions Case No. 82/14 Page no. 5 of 48 (Ballistic)­Assistant Chemical Examiner to Government of India, CFSL, CBI, New Delhi, PW12 Dinesh Prasad, PW13 Dinesh Pratap Singh, PW14 Prabhat Ranjan, PW15 R.S. Rawat, PW16 SI Ajit Pal Tomar, PW17 Pitamber, PW18 Narender, PW19 Shiv Prasad, PW20 Rajesh Kumar and PW21 Raj Kumar. During the examination of the prosecution witnesses documents Ex. PW1/A, Ex. PW1/B, Ex. PW2/A, Ex. PW3/A, Ex. PW3/B, Ex. PW3/C, Ex. PW3/D, Ex. PW3/E, Ex. PW3/F, Ex. PW6/A, Ex. PW7/A, Ex. PW7/B, Ex. PW8/A, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Mark PW10/A Ex. PW11/A, Ex. PW13/A, Ex. PW13/P­1, Ex. PW13/P­2, Ex. PW13/P­3, Ex. PW13/P­4, Ex. PW13/P­5, Ex. PW13/P­6, Ex. PW13/P­7, Ex. PW16/A, Ex. PW16/A­1, Ex. PW16/A­2, Ex. PW16/A­3, Ex. PW16/B, Ex. PW20/A, Ex. PW20/B and Ex. PW21/B; and case property Ex. P­1 to Ex. P­5 were also tendered in evidence.

7. On 01.11.2014, prosecution evidence was closed and the case was posted for examination of the accused under section 313 of Cr.P.C. and recording of his statement.

8. During his examination under section 313 of Cr.P.C. accused Navrattan denied the correctness and truth of the circumstances appearing against him in the prosecution evidence and Sessions Case No. 82/14 Page no. 6 of 48 stated that he has been falsely implicated in this case to save PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj. During his examination under section 313 of Cr.P.C. the accused further stated that on 25.6.2009, he was posted as a gunman at Hemkund Service Station, where at around 11.00 pm, PW2 Rahat Sharma and his friends, namely, PW4 Varun Aggrawal and PW5 Manoj came in the car for filling of gas. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that PW2 Rahat Sharma was talking on mobile phone, and he requested him a number of times to not to talk for public safety but he did not pay any heed to his request. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that after completing the call, PW2 Rahat Sharma and his friends gave severe beatings to him and snatched away his gun. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that PW2 Rahat Sharma fired a shot from his licensed double barrel gun, due to which a stray pellet hit Dinesh Prasad (PW12) in his eye. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that the said three persons in connivance with the police got him falsely implicated in the present case by creating a false story. During his examination under section Sessions Case No. 82/14 Page no. 7 of 48 313 of Cr.P.C. accused Navrattan further stated that on 25.6.2009 as well as on 26.6.2009, he had informed the police regarding the injury having been caused to Dinesh Prasad and that of the fact of snatching away of gun and beatings given to him by PW2 Rahat Sharma and his friends, but despite his complaint, the police did not take any action against PW2 Rahat Sharma and his friends, and instead, the police falsely implicated him in the present case. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that he was innocent. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that in the year 2000, he retired as Head Constable from the Border Security Force that he had joined in year 1979. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that during the whole period of his service, he had unblemished record. During his examination under section 313 of Cr.P.C. accused Navrattan further stated that he was never involved in any criminal activity till date. The accused expressed his desire to lead evidence in his defence.

9. Having availed of opportunity to lead evidence in his defence, no evidence in his defence has been adduced by the accused. So, opportunity for defence evidence was closed on 5.12.2014 Sessions Case No. 82/14 Page no. 8 of 48

10. I have heard Mr. Inder Kumar, Additional Public Prosecutor for the state and Mr. Ajay Pal, Advocate for the accused and have gone through the material on record carefully.

11. Having drawn my attention on the provisions of sections 299, 300 and 307 of the Indian Penal Code; testimonies of PW1 HC Kulbir Singh, PW2 Rahat Sharma, PW3 HC Rajbir Singh, PW4 Varun Aggarwal, PW5 Manoj, PW6 HC Rajbir Singh, PW7 Dr. Rajesh Sinha, PW8 Dr. Ranjan Joshi, PW9 Swapan Pal, PW10 K.V.K. Mani, PW11 N.B. Bardhan, PW12 Dinesh Prasad, PW13 Dinesh Pratap Singh, PW14 Prabhat Ranjan, PW15 R.S. Rawat, PW16 SI Ajit Pal Tomar, PW17 Pitamber, PW18 Narender, PW19 Shiv Prasad, PW20 Rajesh Kumar and PW21 Raj Kumar; documents Ex. PW1/A, Ex. PW1/B, Ex. PW2/A, Ex. PW3/A, Ex. PW3/B, Ex. PW3/C, Ex. PW3/D, Ex. PW3/E, Ex. PW3/F, Ex. PW6/A, Ex. PW7/A, Ex. PW7/B, Ex. PW8/A, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Mark PW10/A Ex. PW11/A, Ex. PW13/A, Ex. PW13/P­1, Ex. PW13/P­2, Ex. PW13/P­3, Ex. PW13/P­4, Ex. PW13/P­5, Ex. PW13/P­6, Ex. PW13/P­7, Ex. PW16/A, Ex. PW16/A­1, Ex. PW16/A­2, Ex. PW16/A­3, Ex. PW16/B, Ex. PW20/A, Ex. PW20/B and Ex. PW21/B; case property Ex. P­1 to Ex. P­5 and the statement of the accused Sessions Case No. 82/14 Page no. 9 of 48 recorded under section 313 of Cr.P.C. it is submitted by the learned Additional Public Prosecutor that from the testimonies of the prosecution witnesses, FSL report Ex. PW11/A and the statement of the accused it has been proved beyond doubt that on 25.6.2009 at about 10.40 pm, the accused being working as a guard at Hemkund Service Station, with intention to murder PW2 Rahat Sharma, by using his firearm Ex. P­1 fired at PW2 Rahat Sharma and caused injury to him. It is further submitted by the learned Additional Public Prosecutor that the accused has failed to prove his defence that he did not fire at the victim, therefore, the accused be convicted for commission of the offence charged against him and be punished.

12. Per contra, having drawn my attention on the testimonies of PW2 Rahat Sharma, PW3 HC Rajbir Singh, PW4 Varun Aggarwal, PW5 Manoj, PW7 Dr. Rajesh Sinha, PW8 Dr. Ranjan Joshi, PW9 Swapan Pal, PW10 K.V.K. Mani, PW11 N.B. Bardhan, PW12 Dinesh Prasad, PW13 Dinesh Pratap Singh, PW14 Prabhat Ranjan, PW15 R.S. Rawat, PW16 SI Ajit Pal Tomar, PW17 Pitamber, PW18 Narender, PW19 Shiv Prasad and PW20 Rajesh Kumar, documents Ex. PW2/A, Ex. PW7/A, Ex. PW7/B and Ex. PW8/A and pages no. 256 and 257 of Parikh's Textbook of Medical Jurisprudence and Toxicology, Fifth Sessions Case No. 82/14 Page no. 10 of 48 Edition (1990) (hereinafter referred to as "the treatise") it is submitted by counsel for the accused that in MLC report Ex. PW8/A, prepared by PW8 Dr. Ranjan Joshi, it has been clearly mentioned that at the time of examination of PW2 Rahat Sharma, PW8 Dr. Ranjan Joshi observed a fabricated wound on the body of PW2 Rahat Sharma and thus, it has been proved that no injury was suffered by PW2 Rahat Sharma due to gun shot. It is further submitted by counsel for the accused that had PW2 Rahat Sharma suffered gun shot injury and he were taken to Moolchand Hospital, by his friends, in injured condition, then there must have been blood on the seat of the car and the clothes of PW2 Rahat Sharma. It is further submitted by counsel for the accused that in the present case no blood was observed by PW16 SI Ajit Pal Tomar at the spot and in the car, and no blood stained clothes of PW2 Rahat Sharma were seized by the doctor concerned or the IO of the case, thus, all these circumstances prove that no injury was suffered by PW2 Rahat Sharma as deposed by him and other prosecution witnesses. It is further submitted by counsel for the accused that PW8 Dr. Ranjan Joshi has deposed contrary to the contents of Ex. PW8/A and the statements given in the treatise, therefore, no weight should be given to his testimony. It is further Sessions Case No. 82/14 Page no. 11 of 48 submitted by counsel for the accused that on the day of the incident, while performing his duty diligently, the accused asked PW2 Rahat Sharma to not to talk on the mobile phone, but PW2 Rahat Sharma did not pay heed to his request and he was severely beaten up by PW2 Rahat Sharma and his two friends. It is further submitted by counsel for the accused that while giving beatings to the accused, PW2 Rahat Sharma and his two friends snatched away his gun Ex. P­1 and fired at PW12 Dinesh Prasad causing injury in his eye and thereafter they fled away, and the police, to save PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj, falsely implicated the accused in this case. It is further submitted by counsel for the accused that the prosecution has failed to prove the charge against the accused, therefore, he is entitled to be acquitted.

13. I have given my thoughtful consideration to the submissions made on behalf of the parties.

14. Section 307 of the Indian Penal Code, which prescribes punishment for attempt to commit murder, reads as follows:

307. Attempt to commit 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.
Sessions Case No. 82/14 Page no. 12 of 48
15. Sections 300 and 299 of the Indian Penal Code, which define 'murder' and 'culpable homicide', read as follows:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 

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Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--

(First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

(Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

(Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 

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Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. 

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Sessions Case No. 82/14                                                                Page no. 13 of 48

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 

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299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

16. In Hari Kishan and another v. Sukhbir Singh and others, AIR 1988 2127 while interpreting the provisions of section 307 of the Indian Penal Code, the Hon'ble Supreme Court held as follows:

Under s. 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessarily constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under section Sessions Case No. 82/14 Page no. 14 of 48 307 the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

17. In the light of the charge against the accused and the arguments advanced before the court, the first point point for determination is: Whether on 25.6.2009 at about 10.40 pm, accused Navrattan and PW2 Rahat Sharma were present at Hemkund Service Station, Lodhi Road New Delhi?

18. PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj during their respective examination deposed that on 25.6.2009 at about 10.40 pm, for filling of CNG gas in Maruti Swift car they went to the Hemkund Service Station. The version of PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj have further been corroborated by PW9 Swapan Pal, PW12 Dinesh Prasad, PW18 Narender and PW19 Shiv Prasad, who during their respective examination have deposed about the presence of three boys at the Hemkund Service Station. From the testimonies of PW9 Swapan Pal, PW10 K.V.K. Mani, PW12 Dinesh Prasad, PW13 Dinesh Pratap Singh, PW14 Prabhat Ranjan, PW15 R.S. Rawat, PW17 Pitamber, PW18 Narender and PW19 Shiv Prasad and documents Ex. PW10/B, Sessions Case No. 82/14 Page no. 15 of 48 Ex. PW10/C, Ex. PW13/P­1 to Ex. PW13/P­4 and Ex. PW13/P­7, produced by the employers of the accused, it has also been proved that on 25.6.2009 at about 10.40 pm, the accused was working as a security guard at the Hemkund Service Station. During his examination under section 313 of Cr. P.C. also, the accused has not disputed the presence of PW2 Rahat Sharma and himself at the Hemkund Service Station. Thus, on the first point it has been found that on 25.6.2009 at about 10.40 pm, accused Navrattan and PW2 Rahat Sharma were present at the Hemkund Service Station.

19. The second point for determination is: Whether on 25.6.2009 at about 10.40 pm, PW2 Rahat Sharma suffered gun shot injury on his left hand?

20. During his examination, PW2 Rahat Sharma deposed that on 25.6.2009, while he was at the Hemkund Service Station, the guard having taken two steps back, fired at him and as a result his left arm started bleeding and there was smoke around. PW4 Varun Aggarwal and PW5 Manoj also during their respective examination deposed about a gun shot and consequential injury to PW2 Rahat Sharma owing to the said gun shot.

21. At the strength of the contents of MLC report Ex. PW8/A Sessions Case No. 82/14 Page no. 16 of 48 and the treatise, it is vehemently argued by the learned counsel for the accused that at the Hemkund Service Station, no injury was suffered by PW2 Rahat Sharma and the injury mentioned in Ex. PW8/A was self inflicted. It is also submitted by the learned counsel for the accused that regarding the concept of 'Fabricated Wound' PW8 Dr. Ranjan has deposed falsely in the court.

22. PW8 Dr. Ranjan Joshi during his examination deposed that on 25.06.2009, one Rahat Sharma S/o Vinod Sharma, aged 27 years, male was brought by one Manoj in the emergency of Moolchand Hospital at 10.59 pm with alleged history of assault and bullet injuries on left elbow and forearm and he was examined by him and after his examination he prepared MLC report Ex. PW8/A. PW8 Dr. Ranjan Joshi further deposed that during examination of Rahat Sharma he observed avulsion injuries (on) left forearm and wrist (of) size size 4 x 5 cm with fabricated wound with black margin and after primary treatment patient was referred to ortho opinion. PW8 Dr. Ranjan Joshi further deposed that on 14.07.2009 he opined the nature of injuries as grievous caused with bullet injuries and prepared report Ex. PW8/A. In answer to the court question, PW8 Dr. Ranjan Joshi deposed that: "[F]abricated wound is a nature of injury where margin Sessions Case No. 82/14 Page no. 17 of 48 of the wound are not cleaned and this type of injury is not under self inflicted injuries because in self inflicted injuries there is a hesitation marks at the sight of the injuries always present".

23. Indeed, in the treatise, while explaining the concept of 'Fabricated Wound', the learned author has stated somewhat contrary to what PW8 Dr. Ranjan Joshi has explained about a "Fabricated Wound', but merely on the strength of the statements made by the learned author in the treatise it cannot be held that PW8 Dr. Ranjan Joshi, who is an experience doctor and has been holding a senior position in a reputed Hospital, has deposed falsely in the court. There are testimonies of PW18 Narender and PW19 Shiv Prasad, who during their respective examination deposed that due to the gun shot, apart from PW12 Dinesh Prasad, one of the three boys, who were in altercation with the accused, also sustained injury on his arm.

24. It is also argued by the learned counsel for the accused that since the IO did not seize the car and the clothes of PW12 Rahat Sharma and did not observe any blood marks on the seat cover of the car and the clothes of PW2 Rahat Sharma, therefore, it cannot be taken as proved that PW12 Rahat Sharma suffered any injury on his hand. In the considered opinion of the court, in the face of the Sessions Case No. 82/14 Page no. 18 of 48 testimonies of PW8 Dr. Ranjan Joshi, PW18 Narender and PW18 Shiv Prasad, this contention of the learned counsel for the accused cannot be accepted. May be, there is negligence on the part of the IO -- in fact there is grave negligence on the part of PW16 SI Ajit Pal Tomar in many respect in investigating the matter effectively and efficiently, but such negligence, in investigating the matter, in itself does not lead to an inference that no injury was suffered by PW2 Rahat Sharma. In view of the testimony of PW2 Rahat Sharma, corroborated by the testimonies of PW4 Varun Aggarwal, PW5 Manoj, PW8 Dr. Ranjan Joshi, PW18 Narender and PW19 Shiv Prasad and document Ex. PW8/A, on the second point it is found that on 25.6.2009 at about 10.40 pm, PW2 Rahat Sharma suffered gun shot injury on his left hand.

25. The third point for determination is: Whether on 25.6.2009 at about 10.40 pm, the injury that PW2 Rahat Sharma suffered, was caused by the accused by using fire arm Ex. P­1?

26. To bring home the guilt of the accused, as already indicated, the prosecution has examined as many as twenty one witnesses. PW6 HC Rajbir Singh during his examination deposed that on 25.06.2009 at about 11.20 pm, he received a PCR call from the Sessions Case No. 82/14 Page no. 19 of 48 Operator­59, Lodhi Colony that one boy had been admitted in Moolchand Hospital due to bullet shot injuries in his hand by a guard at CGO Complex, CNG Pump. PW6 HC Rajbir Singh further deposed that he recorded the message by way of DD entry no. 19A, the copy of which is Ex. PW6/A, and the same was handed over to constable Deepak to give the same to SI Ajit Pal Tomar for investigation.

27. PW1 HC Kulbir Singh during his examination deposed that on 25.06.2009 being posted as duty officer at police station Lodhi Colony on the basis of the rukka brought by HC Rajbir Singh which was sent by SI Ajit Pal Tomar, recorded FIR No. 104/09 under section 307 of the Indian Penal Code, the copy of which is Ex. PW1/A. PW1 HC Kulbir Singh also deposed that after registration of FIR he put endorsement Ex. PW1/B and returned the rukka alongwith a copy of the FIR to HC Rajbir.

28. PW2 Rahat Sharma during his examination deposed that on 25.06.2009 at about 10.00 pm to 10.30 pm, he had gone to CNG Pump, near CGO Complex for filling the CNG in the car of his friend Avnish and at that time his friends Manoj and Varun were with him. PW2 Rahat Sharma further deposed that he alongwith his friends came down from the car and while the CNG was being filled, he Sessions Case No. 82/14 Page no. 20 of 48 received phone call of his mother and when he was talking with her, in the meantime the guard, who was present there, objected to not to talk on phone. PW2 Rahat Sharma further deposed that he requested the guard to allow him only two minutes as the call was from his house but he started shouting and when he asked him to calm down the guard continued with shouting. PW2 Rahat Sharma further deposed that he disconnected the call and thereafter when asked the guard as to why he was shouting, he replied that talking over telephone was not permitted there. PW2 Rahat Sharma further deposed that the guard took two steps back and fired at him and as a result his left arm started bleeding and there was smoke around. PW2 Rahat Sharma further deposed that both his friends came there and asked him to get in the car, and taken him to Moolchand Hospital, where he was informed that since he was hit by a bullet, the police was to be informed. PW2 Rahat Sharma further deposed that one of his friends informed the police and the police came to the Hospital. PW2 Rahat Sharma further deposed that he was taken in the emergency ward of the Hospital and treatment was started. PW2 Rahat Sharma further deposed that the police recorded his statement Ex. PW2/A and after four­five days he was discharged from the Hospital. During his examination, PW2 Sessions Case No. 82/14 Page no. 21 of 48 Rahat Sharma denied that accused Navrattan was the same person who was working as a guard at CNG Station and fired a bullet at him.

29. During his cross­examination, PW2 Rahat Sharma denied that he and his friends had snatched the rifle of the guard. PW2 Rahat Sharma also denied that any physical altercation took place between the guard and him and his friends. PW2 Rahat Sharma further deposed that his friends had taken him to the Hospital in the Maruti Swift car, in which he alongwith his friends had come to the CNG filling station. PW2 Rahat Sharma further deposed that he was sitting on the front seat and the car seat was soiled with blood. PW2 Rahat Sharma further deposed that nothing was tied around the wound to stop the bleeding and at the time of the incident he was wearing a full sleeve blue colour shirt and the police did not seize the said shirt. PW2 Rahat Sharma further deposed that as the shirt was torn and was soiled with blood, therefore, he had thrown it away. PW2 Rahat Sharma further deposed that the doctor had advised X­ray of his left shoulder, elbow and forearm but no such X­ray was taken.

30. PW3 HC Rajbir Singh during his examination deposed that in the intervening night of 25.06.2009 and 26.06.2009 he was posted at police station Lodhi Colony, and on that day at about 10.30 Sessions Case No. 82/14 Page no. 22 of 48 pm, after receiving a call regarding firing at CNG Petrol Pump, Hemkund Service Station, Lodhi Colony, he alongwith SI Ajit Pal Tomar (PW16) reached there, where two persons, who had apprehended one guard, met them and they handed over the custody of the guard alongwith a 12 bore gun, one fired cartridge, a belt containing 15 unused cartridges and two steel cartridges. PW3 HC Rajbir Singh further deposed that one injured person had already been taken to Moolchand Hospital. PW3 HC Rajbir Singh further deposed that having left him at the spot, the IO went to the hospital and at about 11.00 pm to 11.15 pm, he returned to the spot and prepared a rukka which was handed over to him for registration of FIR. PW3 HC Rajbir Singh further deposed that he went to the police station and after getting the case registered returned to the spot at about 1.00 am on 26.06.2009. PW3 HC Rajbir Singh further deposed that the IO seized the gun and fired cartridge after converting into a pullanda which was sealed and seized by way of memo Ex. PW3/A. PW3 HC Rajbir Singh further deposed that by way of seizure memo, the IO also seized 15 unused cartridges alongwith two steel cartridges after converting the same into pullanda. PW3 HC Rajbir Singh further deposed that the IO arrested accused Navrattan and prepared his arrest Sessions Case No. 82/14 Page no. 23 of 48 memo Ex. PW3/C and his personal search was conducted by way of memo Ex. PW3/D. It is further deposed by PW3 HC Rajbir Singh that the IO recorded disclosure statement Ex. PW3/E of the accused and seized arm license of his gun by way of seizure memo Ex. PW3/F.

31. During his cross­examination, PW3 HC Rajbir deposed that when he reached the spot, he found only three persons, namely, guard Navrattan and two other boys who were holding him. PW3 HC Rajbir further deposed that he did not remember the names of the boys who were holding guard Navrattan. PW3 HC Rajbir Singh further deposed that the two persons, who were holding the guard informed that one person was got injured due to shot fired from the firearm and he was taken to Moolchand Hospital. PW3 HC Rajbir further deposed that he did not come to know regarding injuries to a person in his eye, who was taken to the AIIMS Hospital. PW3 HC Rajbir Singh further deposed that no blood was found at the spot.

32. PW4 Varun Aggrawal during his examination deposed that on 25.06.2009 at about 10.30 pm he alongwith his friends Rahat and Manoj had gone for getting CNG gas for the car at CNG Gas Station, Lodhi Road, opposite cremation ground, which was borrowed by Manoj from some relative. PW4 Varun Aggrawal further deposed Sessions Case No. 82/14 Page no. 24 of 48 that all three of them got down from the car and Rahat got a phone call on his mobile; he answered the call and talked on the phone by going through a side. PW4 Varun Aggrawal further deposed that he and his friend Manoj remained standing there and saw that Rahat was talking to a guard of the Gas Station. PW4 Varun Aggrawal further deposed that immediately thereafter he heard a gun shot and when Rahat turned towards his side, he noticed his left hand wounded. PW4 Varun Aggrawal further deposed that they rushed to Moolchand Hospital and Rahat was admitted there, and thereafter, Manoj made a call at number 100 from the Hospital. PW4 Varun Aggrawal further deposed that the police came and they took Manoj to the Gas Station and the guard was apprehended and he was brought to the hospital. PW4 Varun Aggrawal could not identify the accused as the guard who was present at the Gas Station.

33. During his cross­examination, PW4 Varun Aggrawal denied that Rahat did not sustain any bullet injuries on his hand. PW4 Varun Aggrawal also denied that he and his friends had scuffled with the guard, gave beatings to him and snatched away his license rifle.

34. PW5 Manoj during his examination deposed that he alongwith his friends Rahat and Varun Aggrawal had gone to Sessions Case No. 82/14 Page no. 25 of 48 Hemkund Service Station for filling CNG in Swift car at around 10.00 pm. PW5 Manoj further deposed that he and Varun were standing near the place where the CNG was being filled in the car and at that time Rahat had moved to some distance talking on telephone. PW5 Manoj further deposed that he noticed that Rahat was talking with one security guard and after about one or two minutes, he heard a gun firing shot. PW5 Manoj further deposed that he saw that Rahat was injured on his left forearm and was bleeding, so they immediately took him to Moolchand Hospital and he made telephone call at number 100 while going to the Hospital. PW5 Manoj further deposed that the car was being driven by Varun, and Rahat was admitted in the Hospital and his family members were informed. PW5 Manoj further deposed that the police made inquiry from him, and he accompanied the police to Hemkund Service Station. PW5 Manoj further deposed that no security guard came out when the police called him and other employees of the Petrol Pump informed that the guard was inside. PW5 Manoj further deposed that the guard was taken in the police gypsy and he was dropped at the Hospital. PW5 Manoj could not identify the accused as the guard.

35. During his cross­examination PW5 Manoj deposed that Sessions Case No. 82/14 Page no. 26 of 48 the seat of the car was soiled by blood and the police never took the car in custody though the police inspected the car. During his cross­ examination, PW5 Manoj denied that he and his friends quarreled with the guard or snatched away his gun and had fired at another employee and caused injuries to him. PW5 Manoj further denied that no injury was sustained by Rahat.

36. PW7 Dr. Rajesh Sinha during his examination proved record Ex. PW7/A and report Ex. PW7/B pertaining to injured Dinesh Prasad (PW12) and deposed that as per the record on 26.06.2009, Dinesh Prasad was admitted with corneal scleral perforation with tissue loss and he was discharged on 27.06.2009. PW7 Dr. Rajesh Sinha further deposed that on 24.07.2009 he prepared detail report Ex. PW7/B of injured Dinesh Prasad.

37. During his cross­examination, PW7 Dr. Rajesh Sinha deposed that he was not aware whether any MLC was prepared or not and there was no record available with the hospital in respect of Dinesh Prasad.

38. PW9 Swapan Pal during his examination deposed that on the day of incident he was performing duty on the petrol dispenser on the front, while accused Navrattan was performing duty near the CNG Sessions Case No. 82/14 Page no. 27 of 48 dispenser which was on left back side of him. PW9 Swapan Pal further deposed that he heard a bullet shot. PW9 Swapan Pal further deposed that there was a crowd and he heard ' goli lag gaya'. PW9 Swapan Pal further deposed that 3­4 boys were there and they went thereafter. PW9 Swapan Pal further deposed that after some time, police came and they took Navrattan with them.

39. PW10 K.V.K. Mani during his examination deposed that on 25.6.2009, being working as Manager, Hemkund Service Station Pvt. Ltd., Lodhi Road, New Delhi, at about 7.00/7.30 pm, after completing his duty on that day, he had gone to his house. PW10 K.V.K. Mani further deposed that at about 11.00 pm, on that day, he received a phone call from Swapan Pal, a salesman at Hemkund Service Station Pvt. Ltd. that there was an incident of bullet firing at the petrol pump. PW10 K.V.K. Mani further deposed that he came back to the petrol pump and found that the police had already taken away Navrattan. PW10 K.V.K. Mani further deposed that on 30.10.2009, he handed over some papers, that is, duty chart of June, 2009, a letter showing the attendence of the employees, who were present on that day and a copy of the letter of Security Norms of Hindustan Petroleum Corporation Ltd. to the police and IO seized the Sessions Case No. 82/14 Page no. 28 of 48 same.

40. PW11 N.B. Bardhan during his examination deposed that that on 28.8.2009, two sealed parcels were received at CFSL through SHO, police station Lodhi Road and the contents of the same was analyzed by him. PW11 N.B. Bardhan further deposed that after analysis, he prepared report Ex. PW11/A and opined as follows:

(i) The 12 Bore DBBL Gun (marked W/1), contained in the parcel no. 1, was 'Fire Arm' as defined in the Arms Act, 1959 and was in working order and had been fired through.
(ii) The seventeen 12 Bore cartridges (marked C/2 to C/18), contained in the parcel no. 2, were 'Ammunition' as defined in the Arms Act, 1959 and were live cartridges; the said seventeen 12 Bore cartridges could be loaded into and fired from the 12 Bore DBBL Gun (marked W/1) contained in the parcel no. 1.
(ii) The 12 Bore cartridge case (marked C/1), contained in the parcel no. 1, had been fired from the Right barrel of the 12 Bore DBBL Gun (marked W/1), also contained in the parcel no.1.

41. PW12 Dinesh Prasad during his examination deposed that in the night of 25.6.2009 at about 10.30/10.45 pm, three persons came to Hemkund Service Station, where he was working as a filler, for Sessions Case No. 82/14 Page no. 29 of 48 getting CNG in their car. PW12 Dinesh Prasad further deposed that one of those three persons made a mobile phone call and gunman Navrattan stopped him from making the mobile phone call. PW12 Dinesh Prasad further deposed that at that time he was doing his duty of filling petrol in motorcycles at a distance of about 10 feet from them. PW12 Dinesh Prasad further deposed that a quarrel ensued between the guard and the boys, due to which, the gun with the accused fired. PW12 Dinesh Prasad further deposed that due to the impact of the fire, he sustained injury in his right eye and he became unconscious due to firing and injury. PW12 Dinesh Prasad further deposed that he was taken to AIIMS by his colleagues and regained consciousness in the hospital next day. PW12 Dinesh Prasad further deposed that a surgery was performed on his right eye in hospital and he had no vision at all in his right eye. PW12 Dinesh Prasad further deposed that on 9.7.2009 his statement was recorded by the police in the police station. PW12 Dinesh Prasad further deposed that on 30.10.2009 the police came to the pump and recorded his statement.

42. PW13 Dinesh Pratap Singh during his examination deposed that he has been a Field Officer in 24 Guarding Pvt. Ltd. and the said company provided a gunman for night to Hemkund Service Sessions Case No. 82/14 Page no. 30 of 48 Station, near Lodhi Road, New Delhi. During his examination PW13 tendered documents Ex. PW13/P­1 to Ex. PW13/P­7 and Ex. PW13/A.

43. PW14 Prabhat Ranjan during his examination deposed that he has been working as cashier at Hemkund Service Station, Lodhi Road, New Delhi, and on 25.6.2009 he was working as petrol filler on the said Service Station. PW14 Prabhat Ranjan further deposed that on that night, at about 10.45 pm, there was heavy rush at the petrol pump, and he was busy in filling the petrol in vehicles. PW14 Prabhat Ranjan further deposed that in the meantime, he heard sound of fire, and thereafter, lot of people gathered there, and he rushed towards that site, where public had gathered, and noticed that one of his co­workers, namely, Dinesh Prasad, who was also filling worker, was lying on the ground, in injured condition. PW14 Prabhat Ranjan further deposed that thereafter, he alongwith another worker, took him first to Moolchand Hospital, but the doctor of the Hospital refused to admit him in the Hospital, so, he took him to AIIMS Hospital, and after getting him first aided, they returned to Hemkund Service Station.

44. PW15 R.S. Rawat during his examination deposed that he has been working as Fore Court Supervisor at Hemkund Service Sessions Case No. 82/14 Page no. 31 of 48 Station, Lodhi Road, New Delhi, and on 25.6.2009 he was working as a helper on the said Service Station. PW15 R.S. Rawat further deposed that on that night, at about 10.45 pm, there was heavy rush at the petrol pump, and he was busy in filling the petrol in vehicles. PW14 Prabhat Ranjan further deposed that in the meantime, he heard sound of fire, and thereafter, lot of people gathered there, and he rushed towards that site, where public had gathered, and noticed that one of his co­workers, namely, Dinesh Prasad, who was also filling worker, was lying on the ground, in injured condition, and at that time, guard Navrattan was also present.

45. PW17 Pitambar during his examination deposed that he has been working as a salesman at Hemkund Service Station, Lodhi Road, New Delhi, and on 25.6.2009 he was working as filler at CNG­ cum­ Petrol Pump. PW17 Pitambar further deposed that on that night, at about 10.30/10.45 pm, there was heavy rush at the petrol pump, and there were lot of vehicles in the queue. PW17 Pitambar further deposed that suddenly, he heard sound of bullet shot. PW17 Pitambar further deposed that in the meantime, he saw another worker, namely Dinesh Prasad, who was also working as filler, sitting on the floor, and blood was oozing from his eye, and he was taken to hospital in an Alto Sessions Case No. 82/14 Page no. 32 of 48 by Prabhat and Narender.

46. PW18 Narender during his examination deposed that he has been working as a salesman at Hemkund Service Station, Lodhi Road, New Delhi, and on 25.6.2009 he was working as a filler at CNG Pump at Hemkund Service Station. PW18 Narender further deposed that on that day, at about 10.45 pm, three persons came there in a Swift Car, for filling the CNG. PW18 Narender further deposed that at the time of filling CNG, one of them received a call on his mobile phone, and security guard Navrattan told him not to talk on mobile phone, as the same was not allowed at the Service Station; on this, some hot altercation took place between that person and Navrattan and during the altercation, the trigger of the gun of accused Navrattan got pressed, due to which, that person sustained bullet injury on his left forearm. PW18 Narender further deposed that one pallet from the fire also hit on the left eye of another fillerman Dinesh Prasad. PW18 Narender further deposed that he took Dinesh Prasad to AIIMS Hospital. PW18 Narender further deposed that on 30.6.2009, the police came to the Service Station and recorded his statement.

47. PW19 Shiv Prasad during his examination deposed that he has been working at Hemkund Service Station, Lodhi Road, New Sessions Case No. 82/14 Page no. 33 of 48 Delhi, where there is also a CNG Pump. PW19 Shiv Prasad further deposed that on 25.6.2009 at about 10.45 pm, three persons came there in a Swift Car, for filling the CNG. PW19 Shiv Prasad further deposed that all the three boys alighted from the car, and one of them received a call on his mobile phone and he started talking on the mobile phone; and security guard Navrattan, objected and told him not to talk on mobile phone; on this, some hot altercation took place between those persons and Navrattan and during the altercation, the guard fired from his gun, due to which, one of the persons sustained injury on his left forearm. PW19 Shiv Prasad further deposed that one pallet from the fire also hit on the eye of another employee Dinesh Prasad. PW19 Shiv Prasad further deposed that the said three boys fled away in the car and Dinesh Prasad was taken to hospital by the staff. PW19 Shiv Prasad further deposed that the police also came at the spot on the date of incident; and on 30.6.2009, the police recorded his statement.

48. During his examination PW16 SI Ajit Pal Tomar deposed that on 25.06.2009 at about 11.20 pm, by way of copy of DD No. 19A, regarding a call received from Moolchand Hospital, the call was marked to him and thereafter, he alongwith HC Rajesh (sic: Rajbir) Sessions Case No. 82/14 Page no. 34 of 48 went to Hemkund Service Station, where one Varun Aggrawal handed over him a person, namely, Navrattan alongwith 12 bore gun a fire and one live cartridge. PW16 SI Ajit Pal Tomar further deposed that having left HC Rajbir at the spot, he went to Moolchand Hospital, where he received MLC report no. 126/09 and doctor declared the injured fit for his statement. PW16 SI Ajit Pal Tomar further deposed that he recorded statement Ex. PW2/A of Rahat Sharma, and after returning to the spot prepared rukka Ex. PW16/A and handed over the same to HC Rajbir for registration of FIR. PW16 SI Ajit Pal Tomar further deposed that HC Rajbir went to the police station and after registration of the FIR returned to the spot and handed over copy of FIR and the rukka to him. PW16 SI Ajit Pal Tomar further deposed that after interrogation of accused Navrattan he recorded his disclosure statement Ex. PW3/E and at the instance of Varun prepared site plan Ex. PW16/B. PW16 SI Ajit Pal Tomar further deposed that he also recorded statement of Varun Aggrawal and one Manoj and seized 17 live cartridges by way of memo Ex. PW3/B. PW16 SI Ajit Pal Tomar further deposed that he also seized 12 bore gun alongwith fired cartridge and thereafter, arrested accused Navrattan vide memo Ex. PW3/C and searched him by memo Ex. PW3/D. PW16 SI Ajit Pal Sessions Case No. 82/14 Page no. 35 of 48 Tomar further deposed that by way of seizure memo Ex. PW3/F he also seized arms license, an application to SDM, Rohtak and NOC issued from District Magistrate, Udhampur and the said documents are Ex. PW16/A1 to Ex. PW16/A3. PW16 SI Ajit Pal Tomar further deposed that he got the accused medically examined and thereafter returned to the police station and deposited the case property in malkhana. PW16 SI Ajit Pal Tomar also deposed that on 27.06.2009, he handed over the case file to MHC (R). During his cross­ examination, PW16 SI Ajit Pal Tomar deposed that after the case is handed over to him, he normally goes to the place from where the call is received but in the present case he did not go to the Moolchand Hospital from where the call was received, but had gone to the Hemkund Service Station. PW16 SI Ajit Pal Tomar further deposed that at the Hemkund Service Station only two persons, namely, Varun Aggrawal and accused Navrattan was found present and there was no vehicle, and even the employees of the Hemkund Service Station had gone. During his cross­examination, PW16 SI Ajit Pal Tomar further deposed that no blood stains were found present at the place of incident. PW16 SI Ajit Pal Tomar further deposed that one gun was handed over to him by Varun Aggrawal. PW16 SI Ajit Pal Tomar Sessions Case No. 82/14 Page no. 36 of 48 further deposed that after he returned from the Hospital to the spot, he found Manoj, Varun Aggrawal alongwith accused Navrattan at the Hemkund Service Station and there he did not come to know whether any other person was injured at the Hemkund Service Station in firing of gun shot. PW16 SI Ajit Pal Tomar further deposed that he did not check the car, and again said that he had checked the car but there was no blood stains on any seat of the car. PW16 SI Ajit Pal Tomar further deposed that he was not aware if any other person, namely, Dinesh Prasad was injured in his eye in the alleged incident of firing. During his cross­examination, PW16 SI Ajit Pal Tomar further deposed that he did not remember whether he seized any blood stained clothes either at the spot or at the Hospital and further affirmed that he believed whatever was stated to him by Varun Aggrawal, Manoj and Rahat Sharma.

49. PW20 SI Rajesh Kumar during his examination deposed that on 30.06.2009, the investigation of the case was assigned to him and during the investigation, on 09.07.2009, injured Dinesh Prasad came to the police station and handed over his medical papers Ex. PW7/A, which was seized by him by way of seizure memo Ex. PW20/A. PW20 SI Rajesh Kumar further deposed that on the basis of Sessions Case No. 82/14 Page no. 37 of 48 Ex. PW7/A he had also obtained subsequent opinion regarding the injuries sustained by injured Dinesh Prasad and the said subsequent opinion is Ex. PW7/B. PW20 SI Rajesh Kumar further deposed that on 28.08.2009, he had got deposited the exhibits pertaining to the case at CFSL, CBI, Lodhi Road through PSI Mukesh Kumar and subsequently recorded his statement. PW20 SI Rajesh Kumar further deposed that on 18.10.2009, Mr. D. P. Singh handed over him documents Ex. PW18/P­3 (sic: Ex. PW13/P­3), Ex. PW13/P­5, Ex. PW13/P­6, Ex. PW13/A and Ex. PW13/P­7. PW20 SI Rajesh Kumar further deposed that on 30.10.2009, Mr. K. V. K. Mani, manager of Hemkund Petrol Pump­cum­ Service Station had handed over him the details of employees Ex. PW10/C, duty chart Ex. PW10/B and copy of safety guidelines Ex. PW10/A. During his cross­examination, PW20 SI Rajesh Kumar also deposed that during the investigation he obtained FSL result, copy of which is Ex. PW11/A.

50. PW21 ASI Raj Kumar during his examination produced registers number 19 and 21 maintained at police station Lodhi Colony in the year 2009 and sought to prove the relevant entries Ex. PW21/A and Ex. PW21/B. PW21 ASI Raj Kumar further deposed that on 26.06.2009, SI Ajit Pal had deposited two sealed pullandas, containing Sessions Case No. 82/14 Page no. 38 of 48 a 12 bore gun and fired cartridges and another pullanda, containing 7 live cartridges and entries in this regard were made by him at serial no. 978 in register number 19. PW21 ASI Raj Kumar further deposed that on 28.08.2009, he had handed over the said two pullandas alongwith FSL form to SI Mukesh Kumar for depositing in the CFSL vide RC Ex. PW21/D and made entry in this regard in register number

19. PW21 ASI Raj Kumar further deposed that on 03.02.2010, HC Jagdish had deposited the pullandas alongwith FSL result and he made entries in that regard in register number 19.

51. As already found, from the testimonies of the prosecution witnesses and the statement of the accused recorded under section 313 of Cr.P.C. it has been proved that on 25.6.2009 at about 10.40 pm, accused Navrattan was on duty as a security guard at the Hemkund Service Station; and the double barrel gun Ex. P­1 belonged to him. From the testimony of PW9 N.B. Bardhan it has also been proved that cartridge Ex. P­2 was fired from gun Ex. P­1. To this extent, even the accused does not dispute the facts. The contention of the accused, however, is that the three boys, including PW2 Rahat Sharma, attacked him and beaten him up and snatched away his gun Ex. P­1, and then PW2 Rahat Sharma fired at and caused injury to PW12 Dinesh Prasad.

Sessions Case No. 82/14 Page no. 39 of 48 The accused also denies that any injury was caused to PW2 Rahat Sharma and this regard the testimony of PW8 Dr. Ranjan Joshi has been strongly attacked. On the other hand it is contended by the learned Additional Public Prosecutor that from the testimonies of the prosecution evidence it has been proved that the injury that PW2 Rahat Sharma suffered was caused by the accused.

52. Before discussing this point in detail it necessary to note down the standards on which the defence of the accused is required to be tested; and what the Hon'ble Supreme Court observed in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217. In the said case the apex court held as follows:

[T]here are two important factors in every criminal trial that weight heavily in favour of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off­shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false.

53. PW2 Rahat Sharma, regarding the incident of firing, stated that he disconnected the call and thereafter when asked the guard as to why he was shouting, he (the guard) replied that talking over telephone was not permitted there. PW2 Rahat Sharma further stated that the guard took two steps back and fired at him and as a result his left arm started bleeding and there was smoke around. PW4 Sessions Case No. 82/14 Page no. 40 of 48 Varun Aggarwal and PW5 Manoj, the friends of PW2 Rahat Sharma, who, at the time of the incident, were present with him, did not speak about the exact circumstances in which the gun was fired, but there version is that their friend Rahat Sharma was talking on mobile phone and subsequently they saw him talking to a guard and then, there was a gun shot, and injury to PW2 Rahat Sharma. Strangely, neither PW2 Rahat Sharma nor his friends PW4 Varun Aggarwal and PW5 Manoj identified the accused as the guard with whom PW2 Rahat Sharma was talking. Moreover, when, in the court, the accused was shown and each of the said witnesses were asked about him by way of leading questions, PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj categorically denied that the accused was the person, who talked to PW2 Rahat Sharma and fired through gun Ex. P­1.

54. PW9 Swapan Pal, PW12 Dinesh Prasad, PW14 Prabhat Ranjan, PW15 R.S. Rawat, PW17 Pitamber, PW18 Narender, PW19 Shiv Prasad are the other eye witnesses, who were present at the spot at the time of incident. Out of the said seven eye witnesses, PW9 Swapan Pal, PW14 Prabhat Ranjan, PW15 R.S. Rawat and PW17 Pitambar, as can be discerned from their respective testimonies, did not named or described any person, the accused of any other, as the Sessions Case No. 82/14 Page no. 41 of 48 person firing from gun Ex. P­1. At the time of the incident, as per their respective testimonies, each of them was engaged in doing his respective task, and their attention was diverted due to the gun shot. Neither of them saw any person firing the shot. Each of them, however, after hearing the fire shot saw, Dinesh Prasad in injured condition.

55. As per the testimony of PW12 Dinesh Prasad, a quarrel ensued between accused Navrattan and the three boys, due to which the gun with accused Navrattan was fired. Even PW12 Dinesh Prasad has not stated unequivocally that the gun was fired by the accused. During his cross­examination also PW12 Dinesh Prasad reiterated that the person, who was using the mobile phone, did not pay heed to the words of the accused and a scuffle followed between the accused and the three boys; and after observing the scuffle, the other staff members went to save the accused. PW18 Narender, also, during his examination deposed that when the accused asked the person, who was talking on mobile phone, to not to talk, some hot altercation took place between the said person and accused Navrattan, and during the altercation the trigger of the gun of the accused got pressed and injury was caused to the said person on his left forearm. PW18 Narender has Sessions Case No. 82/14 Page no. 42 of 48 also not stated unequivocally that the gun was fired by the accused. During his cross­examination PW18 Narender deposed that at the time of the altercation, the gun was attempted to be snatched by the injured from the accused. PW19 Shiv Prasad also during his examination deposed that when the accused asked the boy, who was talking on mobile phone, to not to talk, some hot altercation took place between the three persons and accused Navrattan, and during the altercation the accused fired from gun and injury was caused to on of the persons, who sustained injury on his left forearm. During his cross­examination PW19 Shiv Prasad deposed that by physical altercation he meant that the three boys beaten up the accused.

56. From the testimonies of PW12 Dinesh Prasad, PW18 Narender and PW19 Shiv Prasad it has been proved that PW2 Rahat Sharma, when he deposed that the guard took two steps back and then fired at him, has deposed falsely. From the testimonies of PW12 Dinesh Prasad, PW18 Narender and PW19 Shiv Prasad it has also been proved that when the accused asked PW2 Rahat Sharma to not to talk on the phone, an altercation followed during which PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj beaten up the accused and attempted to snatch away his phone. From the testimony of PW12 Sessions Case No. 82/14 Page no. 43 of 48 Dinesh Prasad it has also been proved that due to the beatings being given to the accused by PW2 Rahat Sharma, PW4 Varun Sharma and PW5 Manoj, the situation became so serious that after observing the scuffle, the other staff members went to save the accused. Although, PW12 Dinesh Prasad, PW18 Narender and PW19 Shiv Prasad have deposed that the gun was actually not snatched away, but the testimony of PW16 SI Ajit Pal Tomar indicates otherwise. During his examination PW16 SI Ajit Pal Tomar has deposed that when he reached the pump, PW4 Varun Aggarwal produced the accused alongwith gun Ex. P­1. During his cross­examination, PW16 SI Ajit Pal Tomar further thrown light on this aspect and clearly stated, contrary to the contents of memo Ex. Ex. PW3/B, that the gun was produced by PW4 Varun Aggarwal, implying that the same was not in possession of the accused. The production of gun of the accused by PW4 Varun Aggarwal gives rise to probability that the gun was actually snatched away by PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj, or any of them, from the accused. In these circumstances it is quite probable that in the milieu, the gun that was snatched away by PW2 Rahat Sharma, PW4 Varun Aggarwal and PW5 Manoj after beating up the accused was in fact, intentionally or Sessions Case No. 82/14 Page no. 44 of 48 accidently, fired upon by any of the said three persons.

57. In the light of the law laid by the Hon'ble Supreme Court in Aher Raja Khima's case (supra) even if the accused failed to prove his defence by leading evidence in his defence, still his defence appears to be plausible. In these circumstances, giving benefit of grave doubt to the accused, on the third point it is found that the prosecution has failed to prove that on 25.6.2009 at about 10.40 pm, the injury that PW2 Rahat Sharma suffered, was caused by the accused by using fire arm Ex. P­1.

58. The last point for determination is: whether the accused attempted to murder PW2 Rahat Sharma?

59. As found during discussion on the third point, the prosecution, by leading plausible evidence, has failed to prove that on 25.6.2009 at about 10.40 pm, the injury that PW2 Rahat Sharma suffered, was caused by the accused by using fire arm Ex. P­1. In the absence of the proof of the fact that the accused fired at PW2 Rahat Sharma, it cannot be held that the accused attempted to murder PW2 Rahat Sharma.

60. For the sake of argument even if it is taken as proved that it was the accused who pulled the trigger, still it cannot be said that his Sessions Case No. 82/14 Page no. 45 of 48 act was committed with such intention or knowledge as contemplated by sections 299 and 300 of the Indian Penal Code. The accused is an ex­service man and was working as a guard. As a guard it was his duty that the security norms are followed. On 25.6.2009 PW2 Rahat Sharma alongwith his friends came to the pump for filling of gas and in violation of the directions of Hindustan Petrolium Corporation Ltd. started talking on mobile phone, posing danger to the safety and security. PW2 Rahat Sharma and his friends beaten up the accused and attempted to snatch away the gun of the accused. In this situation finding himself one against three, it was quite probable that to save himself, without intention or knowledge, the accused fired and the bullet accidentally caused injury to PW2 Rahat Sharma. In this situation the accused cannot be held guilty of attempt to murder or any other offence against human body.

61. In view of above discussion accused Navratta is found not guilty and he is acquitted of the charge under section 307 of the Indian Penal Code. His bond and bail bond furnished under section 437 or 439 of Cr.P.C. are cancelled and the sureties are discharged. His bond and surety bond furnished under section 437A of Cr.P.C., however, shall remain in force as per law.

Sessions Case No. 82/14 Page no. 46 of 48

62. Before parting with the judgment some observations regarding the conduct of the IO of the case are required to be put on record. As per the material on record, in the incident, PW12 Dinesh Prasad suffered serious injury in his eye, and, consequently, deprived of eye sight of right eye, but he, the main victim, was completely ignored by PW16 SI Aji Pal Tomar in his investigation. It appears that for SI Ajit Pal Tomar, PW12 Dinesh Prasad did not exist. In the face of the testimonies of the colleagues of PW12 Dinesh Prasad it is impossible to believe that during the entire investigation, conducted by SI Aji Pal Tomar, he did not come to know about the plight of PW12 Dinesh Prasad. In the opinion of the court, after coming to know about the injury to Dinesh Prasad, SI Ajit Pal Tomar must have investigated the matter more diligently and should not have let the material evidence vanish. SI Ajit Pal Tomar, in the opinion of the court, investigated the matter unfairly. The said IO completely ignored the collection of evidence which are otherwise very material in cases pertaining to offences against human body. As per the testimonies of the prosecution witnesses, there was blood on the spot; on the seat cover of the car; and the shirt of PW2 Rahat Sharma. But, the IO did not collect the said material pieces of evidence, and contrary to the Sessions Case No. 82/14 Page no. 47 of 48 proved facts, deposed that he did not observe such blood marks. It is obvious that by the time, the second IO PW20 SI Rajesh Kumar put in charge of the investigation, the case was already spoiled.

63. File be sent to records. A copy of this order be sent to the Commissioner of Police, Delhi for information and further action. 

Pronounced in the open court                                                     (Manoj Kumar) 
on 22nd of December, 2014                                           Additional Sessions Judge­4
                                                                     South District:Saket Courts
                                                                                   New Delhi




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