Delhi District Court
State vs 1. Badle S/O. Bhola, on 1 February, 2010
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IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS
JUDGE : (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 73/07
FIR No. 16/00
U/S: 147/148/149/307 IPC and 25/27 Arms Act
P.S: Khajoori Khas
State Versus 1. Badle S/o. Bhola,
R/o. Village Behari Pur, Delhi.
2. Rakesh S/o. Mahender
R/o. Gali No. 16, E Block, Sonia Vihar,
Delhi.
3. Vijay Pal R/o. Gali No. 16, E Block,
Sonia Vihar, Delhi.
4. Satish @ Dhara S/o. Sish Ram
R/o. Village Biharipur, Delhi.
5. Hari Kishan S/o. Badle
R/o. Village Biharipur, Delhi.
6. Vinod S/o. Sardar Singh
R/o. Village Biharipur, Delhi.
7. Jagger Singh S/o. Jai Ram
R/o. Village Biharipur, Delhi.
8. Ashok Kumar S/o. Hari Kishan
R/o. Village Biharipur, Delhi.
9. Bed Pal @ Bedi S/o. Hari Kishan
R/o. Village Biharipur, Delhi.
DATE OF INSTITUTION : 27.9.00
JUDGEMENT RESERVED ON : 13.1.10
JUDGEMENT DELIVERED ON : 28.1.10
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JUDGMENT
1. The prosecution case in brief is that on 20.1.00 at 3.40 p.m. DD No. 30B was recorded in P.S. Khajoori Khas, on information received from wireless operator regarding a quarrel and firing at Street No. 15, th Soniya Vihar, 4 Pushta, near Shiv Shakti Mandir. This DD was marked to PW12 HC Hari Om. He alongwith Ct. Sri Niwas reached at the spot and found crowd present there. Public persons complained that firing has taken place but police was not doing anything, people got agitated and attacked PW12. He sustained injuries and was admitted to GTB Hospital by public persons and further investigation was conducted by PW25 SI Ajay Kumar. PW25 received the information at 4.30 p.m and alongwith PW10 Ct. Dharamvir reached at the spot. On the spot other police officials from P.S Khajoori Khas were already present and he came to know that the injured persons had already been taken to GTB Hospital. He went to GTB hospital, collected the MLCs of the injured persons and recorded statement of PW14 Kedar Prasad , made rukka and got the FIR No. 16/00 registered. Complainant PW14 Kedar Prasad made complaint stating that at 3.20 p.m he was standing in the street in front of his house, Vinod, Badle, Satish,Hari Kishan, Bedi @ Bed Pal, Rakesh, Vijay and Ashok came there and asked him that why he has constructed a room on their plot in Khasra No. 216. He stated that this plot belong to his brotherinlaw. On this they started arguing. In the meantime Om Prakash, Phool Kant Mishra, Mohd. Salamat and Mohd. Sehmat also intervened. A fight followed. Those 3 persons took out rifles and kattas and started firing. Phool Kant Mishra and Mohd. Sehmat each got a fire shot. Om Prakash and Mohd. Salamat also sustained injuries. Those persons ran away from the spot. On this complaint FIR No. 16/00 U/s. 147/148/149/307 IPC and 25/27 Arms Act was registered. During investigation police arrested nine accused persons and filed charge sheet u/s. 147/148/149/307 IPC and 25/27 Arms Act, against them.
2. The case was received by this court after committal. After hearing the accused persons, charges for the offences u/s. 148/307/149 IPC were given to all the accused persons, to which they pleaded not guilty and claimed trial. Separate charges u/s. 25/27 Arms Act was given to accused Badle to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined 25 witnesses. PW1 Dr. Gagan Arora, GTB Hospital, Shahdra proved his endorsement regarding nature of injuries on MLC of Om Prakash as Ex.PW1/A. He also proved his endorsement regarding the nature of injuries on MLC of Mohd. Sehmat and Phool Kant Mishra as Ex.PW1/B and PW1/C, XRay plates as Ex.PW1/D and PW1/E. The witness was partially examined and further examination was deferred but thereafter he was never called for further examination. PW2 Dr. Gopesh, Radiologist, GTB Hospital proved his report regarding nature of injuries on the MLC of Om Prakash as Ex.PW2/A. PW3 Dr. Reema Goel proved the MLC of 4 Mohd. Sehmat Ex.PW3/A. PW4 HC Pratap Singh was working as duty officer on 20.1.2000 and he proved FIR Ex.PW4/A, DD No. 21A as Ex.PW4/B, DD No. 29B as Ex.PW4/C and DD No. 30B as Ex.PW4/D. PW5 HC Hari Singh proved wireless log book of PCR Van B37 Ex. PW5/A. PW6 Ct. Bhupender proved search memo of accused Hari Kishan as Ex.PW6/A.
4. PW7 Ct. Dharamvir Singh reached at the spot accompanying SI Ajay Kumar. He proved seizure memo of one bullet head, blood stained earth and control earth from the different places vide memo Ex.PW7/A, arrest memos of accused Vijay, Rakesh and Ashok as Ex.PW7/B to PW7/E, the seizure memo of .315 bore rifle produced by accused Badle as Ex.PW7/F and personal search memos of accused Ved Pal and Satish are Ex.PW7/G and PW7/H. PW8 Ct. Chenna Ram took DD No. 30B and handed over to HC Hari Om at the spot and there on the directions of SHO he delivered copy of DD entry to IO SI Ajay Kumar. PW9 Ct. Subodh Kumar proved personal search memo of accused Jaggar Singh as Ex.PW9/A. PW10 Dr. Vinita Rathi, Radiologist proved his report after examining XRay plate of Mohd. Sehmat as Ex.PW10/A and XRay plates as Ex.PW10/B, C and D. PW11 Mohd. Sehmat is an eye witness and one of the injured. PW14 Kedar Prasad is the complainant who proved his complaint Ex.PW14/A. PW15 Phool Kant Mishra and PW16 Mohd. Salamat are the other eye witnesses and injured in this case. PW17 Om Prakash is also stated to be an eye witness and injured to this incident. PW18 Sunaina Devi has also 5 claimed to be an eye witness this incident. She proved GPA Ex.PW18/A regarding the disputed property in her favour.
5. PW12 HC Hari Om reached at the spot on receiving DD No. 30B and at the spot he was attacked and injured by public. PW13 Ct. Ram Babu proved the photographs of the spot taken by him as Ex.PW13/A1 to A10 and negatives as Ex.PW13/B1 to B11. PW19 Ct. Murari Lal is stated to be an eye witness to the incident as he was patrolling the area at that time. PW20 Dr. RKB Chaudhary, CMO, GTB Hospital, proved MLC of Om Prakash Ex.PW20/A and MLC of Mohd. Sehmat Ex.PW20/B. PW21 Ct. Devender Kumar proved seizure memo of the bullet recovered from the body of Sehmat Ex.PW21/A. PW22 Ct. Ashok Kumar proved arrest memo of accused Vinod Ex.PW22/A, his personal search memo Ex.PW22/B and his disclosure Ex.PW22/C. PW23 Dr. Praveen Kumar, Medical Officer proved MLC of Phool Kant Mishra as Ex.PW23/A. PW24 HC Mahesh Kumar was working as MHC(M), he proved copy of the register No. 19, serial no. 187 as Ex.PW24/A, serial No. 193 as Ex.PW24/B and serial No. 209 as Ex.PW24/C. He also proved entry of sending these articles on 19.5.00 to FSL Malviya Nagar vide RC No. 23/21 as Ex.PW24/D. PW25 SI Ajay Kumar is IO of the case. He proved rukka Ex.PW25/A, site plan Ex.PW25/B, arrest memos of the accused Ex.PW25/C to PW25/H. The seizure memo of the license of rifle of Om Prakash as Ex.PW25/I, body inspection report of accused Dhara @ Satish, Ashok, Ved Pal, Rakesh, Vijay Pal and Badle as Ex.PW25/J. 6
6. On the basis of the incriminating evidence against the accused persons their statement u/s. 313 Cr. PC were recorded , wherein they denied all the prosecution evidence and took the defence that they are innocent and were falsely implicated in this case only on the basis of doubt. All the accused persons did not opt to lead any defence evidence except accused Vinod who is complainant in cross case.
7. In his defence evidence accused Vinod Kumar made statement that in order to expedite the case his statement as well as statement of other witnesses and the documents in complaint case (SC No. 74/07) be read in this case.
8. Heard arguments of Sh. R.K. Mehta, Ld. APP for the State and Sh. B.K. Sharma, Ld. defence counsel for the accused. Perused the record.
9. Ld. APP submitted that all the necessary ingredients of the offences u/s. 148/307 read with 149 IPC stands proved against the accused persons. The recovery of an illegal rifle also stands proved from accused Badle. It is submitted that cross case SC No. 74/07 filed by accused Vijay Kumar against complainant and seven other associates of complainant is an aftershoot of this case. The Ld. counsel Sh. B.K. Sharma for the accused persons contended that Hari Kishan was in possession of the land and the complainant and his other associates who are accused in SC No. 74/07 (cross case) tried to grab 7 100 sq. yards of plot. When Hari Kishan and Badle opposed, they were beaten up and in connivance with the police were falsely implicated in this case alongwith their other family members and associates. It is stated that Mohd. Sahmat and Phool Kant Mishra had sustained bullet injuries as associates of complainant Kedar Prasad fired at Vinod Kumar (complainant in cross case SC No. 74/07) but he fell down and bullet injuries were sustained by both these persons. It is further contended that testimonies of PW11, PW14 to PW18 are full of contradictions and all these witnesses has been contradicted with their statements recorded u/s. 161 Cr. PC. It is further contended that complainant Kedar Prasad and other public witnesses examined by prosecution in this case has stated before the police in complaint and in their statements u/s. 161 Cr. PC that it was Badle not Ashok who had fired at Mohd. Sahmat but while deposing before this Court all witnesses has substituted Ashok in place of Badle which falsify their statements as well as prosecution case.
10. PW14 Kedar Prasad is the complainant in this case, he deposed that on 25.3.96 he purchased a 100 sq. yards plot from Hari Ram Bajaj arising out of Khasra No. 216, E block, 4th Pusta Sonia Vihar on the name of Smt. Sunaina Devi W/o. Surender Prasad who is the wife of his brotherinlaw. Sunaina Devi was residing on the said plot. Hari Kishan was threatening him to vacate the said plot claiming it to be belonging to him (Hari Kishan). On 20.1.00 at about 8.30 a.m he was summoned by ACP, Seelampur on the complaint made by him against 8 the accused persons. Accused Har Kishan and his son Ashok also reached there and they apprised the ACP about dispute over the plot. ACP demanded the registry of the said plot from both the parties and they showed their respective registries. The registry shown by accused persons was dated 14.3.97 and it was on the name of Santu and Intejar Ansari, which was in respect of the remaining plot except 100 sq. yards belonging to him. The ACP told the accused that they can have the possession of the remaining plot except 100 sq. yards purchased by him. He reached his house at about 3 p.m., at that time the boundary wall of the said plot was being raised under the contractorship of Surender thekedar. Sahmat and Salamat, the two masons were doing the masonry work and labour Om Prakash was helping them. At about 3.25 p.m accused Hari Kishan and Ashok came to the said plot in a car alongwith Badle, Jagar, Rakesh, Vijay, Satish, Ved Pal and Vinod armed with weapons and started firing upon them. HC Murari and HC Pradeep were also standing there and they fired upon them. One gunshot fired by accused Ashok hit Sehmat on his left leg, another gunshot fired by accused Jagar hit Phoolkant Mishra who was also having his house in the said plot and had come out on hearing the firing. Badle was having a lathi, Ashok was having rifle and others were having kattas. Thereafter accused fled away. While running, accused Vinod fell down and was overpowered by the crowd which had also gathered there on hearing the noise of firing and gave beatings to Vinod. He alongwith HC Pradeep made a call to SHO, ACP, DCP and PCR. After sometime the PCR, SHO, ACP and DCP arrived at the spot 9 with force. The injured were taken to GTB Hospital by the PCR. After police returned from GTB Hospital at about 1 a.m his statement Ex.PW14/A was recorded by SI Ajay Kumar at P.S. Khajuri Khas.
11. PW14 was crossexamined by Ld. APP with the permission of the Court. He further admitted that Om Prakash and Salamat also sustained injuries as a result of beatings given by accused persons with lathies. He had pointed out the place of incident to the police. He denied the suggestion that he had stated to the police that Badle Pradhan had fired with his rifle upon Sehmat. He deposed that he had named Ashok in his statement to the police as the person who had fired upon Sehmat but the police deliberately recorded the name of Badle in his place in order to save Ashok who is a Govt. servant. PW14 identified correctly all the accused persons.
12. PW11 Mohd. Sahmat is an injured in this case, he deposed that on 20.1.00 at about 3 p.m he was doing masonry work at the plot of Kedar Prasad. On the same day in the morning Hari Kishan and Badle came to the plot to stop the construction of boundary wall. They had threatened the labourers Salamat Khan, Om Prakash and Kedar Prasad. At about 2 p.m on the same day police officials came at the plot and told them to carry on construction of boundary wall. At 3 p.m accused persons came at the plot. Accused Ashok was armed with a rifle. Accused Badle and Hari Kishan were having lathies in their hands and the remaining accused namely Bedi (Ved Pal), Satish, Jagar, 10 Rakesh, Vijay, Vinod were armed with countrymade pistols. Accused persons came at the plot firing from the country made pistol and rifle. They (PW11 and another persons) started running here and there. Accused Ashok fired at him from his rifle which hit him on his right knee. He fell down. Public from the locality rushed there. Thereafter he became unconscious and regained consciousness after 23 days in GTB Hospital. His right leg was amputated at GTB Hospital due to these injuries.
13. PW15 Phool Kant Mishra is another injured in this case, who deposed that on 20.1.00 at about 3/3.30 p.m he was present in his house and came out on hearing the noise of commotion at the plot of Sunaina Devi which was L shaped and situated at Khasra No. 216, E Block, Sonia Vihar. He saw lot of people had gathered there and masonry work was going on at the plot and being done by mason Sahmat and assisted by labourer Om Prakash. Suddenly he heard the sound of firing and tried to run away but in the meantime Jagar who was known to him before the incident came in front of him, having a katta in his hand and fired upon him and he got gunshot on his right leg. Accused Hari Kishan, Badle, Bedi, Vinod, Jagar, Rakesh, Vijay and Satish were present at the plot. They were having verbal arguments with Kedar Prasad. He fell down after receiving the gunshot injury and became unconscious and regained consciousness in the hospital.
14. PW16 Mohd. Salamat is another eye witness examined by the 11 prosecution to corroborate its case. He deposed that on 20.1.00 he was constructing the boundary wall at the plot of Sunaina Devi with four labourers, out of which he remember the name of one labourer i.e. Om Prakash. At 3.30 p.m they had finished the day's work and were waiting for payment. Hari Kishan, Vinod, Badle, Rakesh, Vijay, Satish, Ashok and Jagar came there and started arguing with Kedar Prasad who was standing on the same plot claiming that the said plot belong to them. Their heated arguments turned violent and both the parties pushed each other. Badle and Hari Kishan called their associates to give beatings to the other parties. Jagar fired at Phool Kant, Ashok fired at Sahmat. He rushed towards Sahmat and tied his leg with chadar (cloth) as he (Sahmat) became unconscious. He called the police. Police reached at the spot. PCR arrived first at the spot. Public had gathered in large number at the spot and further police force was called. About 1617 police vehicles arrived at the spot. By that time all accused had fled away. PCR van took the injured who had sustained gunshot injuries to the hospital. Ashok was having a rifle but he could not see what was in the hand of Jagar, it was not a rifle but some other weapon. He was crossexamined by Ld. APP with the permission of the Court. During cross PW16 denied the suggestion that he had stated to the police that Badle fired upon Sahmat on his leg by rifle. He stated that police had recorded his statement wrongly. He admitted that he had stated to the police that Jagar fired upon Phool Kant Mishra on his leg with a katta.
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15. PW17 Om Prakash is also an eye witness as he was working as a labourer at the spot. He deposed that Mohd. Salamat, Mohd. Sahmat were the masons and he alongwith three other labourers was also working with them. At about 3/3.15 p.m Ashok, Jagar, Satish, Hari Kishan, Badle, Rakesh, Vijay and Tejpal came from the side of jungle on foot and doing firing. Ashok and Jagar were having the guns. Jagar was having a smaller gun and Ashok was having a bigger gun. Satish was also having a small gun. A gunshot fired by Ashok hit Sahmat and the shot fired by Jagar hit Phool Kant Mishra. Thereafter police came at the spot and took the injured to the hospital. He was crossexamined by Ld. APP with the permission of the Court. During cross he denied to have stated to the police that Badle had fired with his rifle which hit Sahmat.
16. PW18 Sunaina Devi is an other important witness to this case. She deposed that she is the owner of 100 sq. yards plot at E Block, 4th Pushta, Sonia Vihar. Hari Kishan was claiming the said plot to be his and there was a dispute over it since long. She does not remember the exact date but 89 years ago at about 3.30 p.m construction of boundary wall was going on at her plot. Salamat and Sehmat were doing the mason work and they were demanding payment for their work. Ashok fired upon Sehmat and went away. Jagar fired upon Phool Kant. Thereafter she became unconscious. During her cross examination by the accused PW18 stated that she was preparing tea inside the house, she came out on hearing the noise of firing and when 13 she saw Ashok firing upon Sahmat she became unconscious.
17. PW19 Ct. Murari Lal is an other eye witness, who was patrolling on 20.1.00 at 3.20 p.m with Ct. Pradeep in the area of his beat. He saw Kedar Prasad, Phool Knat Mishra, Sahmat and 34 others standing on the plot near Shiv Mandir. At that time Hari Kishan, Badle, Jagar, Satish, Vijay, Rakesh, Vinod, Bedi and 12 others came there on foot. Hari Kishan questioned Kedar Prasad as to how and why he had constructed a room on that plot. Kedar Prasad claimed that it was his plot and he has constructed his room. Heated arguments took place between the two parties and they started fighting with each other. Hari Kishan challengd instigating his associates by saying "Maaro Salon Ko Jinda Mat Chhoro". Jagar took out a countrymade pistol and fired at Phool Kant Mishra while Badle who was having a rifle fired at Sahmat. Both the persons sustained bullet injuries on their legs. Satish gave a danda blow to Om Prakash. In the meanwhile HC Hari Om (PW12) alongwith other staff and a PCR van reached there. On seeing them Satish, Rakesh etc. fled away from the spot. He and Ct. Pradeep tried to intervene and since there was a lot of crowd and accused were armed, while they (PW19 and Ct. Pradeep) were unarmed they could not do anything. Injured Sahmat and Phool Kant Mishra were taken to hospital by PCR Van. Vinod who was accompanying the assailants was caught hold by public and was badly beaten. Vinod was taken to hospital. SI Ajay Kumar (PW25) and an other police official also reached at the spot. HC Hari Om had sustained injuries as he was 14 beaten by the public and he too was taken to hospital. SI Ajay Kumar recovered an empty cartridge from the spot. SI Ajay Kumar also took blood stained earth and earth control, converted it into a pulanda and took it into possession.
18. PW12 HC Hari Om is an other important witness in this case. He had sustained injuries for which FIR No. 15/00 P.S. Khajuri Khas u/s. 186/353/333/34 IPC was lodged. He deposed that on 20.1.00 he received DD No.30B about a quarrel and firing at 4th Pushta, E Block, Sonia Vihar, Delhi. He alongwith Ct. Sri Niwas reached at the spot. Crowd was found there. Public persons complained that firing had taken place but the police was not doing anything. People got agitated and attacked him. He sustained injuries and was admitted to GTB Hospital by public persons. The persons who caused injured to him with lathies, bricks and stones included Vijay, Satpal and Gajender Chauhan.
19. PW25 SI Ajay Kumar is the IO of this case. On 20.1.00 he was on patrolling duty alongwith PW7 Ct. Dharamvir. At 4.30 p.m he received an information through wireless set that at Shiv Mandir, 4th Pushta, Sonia Vihar a quarrel is going on in which firing has taken place. He reached at the spot. There he found other police officials from P.S. Khajuri Khas. DD No. 30B was handed over to him by Ct. Chana Ram. He came to know that injured persons had already been taken to GTB Hospital, Shahdra. Instructing the police officials present there to guard the spot he rushed to GTB Hospital alongwith two injured 15 persons present at the spot. In the hospital he recorded statement of Kedar Prasad, prepared rukka and got the FIR registered. Thereafter he returned at the spot. He seized one fired cartridge from the spot. He also seized blood soaked soil from the spot. During investigation he arrested the accused persons.
20. PW20 Dr. RKB Chaudhary, has proved MLC of Om Prakash Ex.PW20/A prepared by Dr. Ravinder Chauhan as Dr. Chauhan is not working in the hospital and his present address is not known to the hospital authorities. He also proved the MLC of Mohd. Sahmat Ex.PW20/B. PW20 has stated that as per record the injuries were gun shot injuries. As per MLC injuries sustained by patient Mohd. Sahmat are as follows : (1) One entry wound on lateral aspect of right thigh. (2) Exit wound on medial aspect of thigh in the form of wide lacerated wound measuring 20 cm x 10 cm.
(3) One entry wound on medial aspect of left thigh.
21. PW23 Dr. Praveen Kumar proved MLC Ex.PW3/A of Phool Kant Mishra, the following injuries were found on the person of patient Phool Kant Mishra :
1. There are 5 punctured wound over left thigh
a) two wounds side by side just 3 cm above left knee, 4 mm circular
b) one puncture wound medial aspect of thigh below groin, subcutaneous tissue deep 1 cms in diameter.
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c) on puncture wound 5 cm below public tubercle anterior aspect 1 cm in diameter
2. Lacerated wound 3 cm x .75 cm subcutaneous tissue deep over medial side of right leg
3. lacerated wound 4 cm x 1.5 cm with active bleeding depth, ? over medial aspect of right leg
4. lacerated wound 3 cm x 2.5 cm with active bleeding depth, ? lateral aspect of leg
5. fibula of right leg mobile over lateral malleolous, ? Fracture fibula.
22. As per PW23 kind of weapon suspected is fire arm. During crossexamination PW23 stated that on the MLC at point A at the encircled portion thumb impression does not appear. PW23 has clarified that the thumb impression appearing at the bottom at point X may be of the patient as he was perplexed and quite sick and he might have put the impression below the circle. The Ld defence counsel has contended that in MLC Ex.PW20/B of Mohd. Sahmat there is cutting on the name of the patient and at the bottom of the MLC and at the encircled portion for the thumb impression, there are no thumb impressions of the patient. The Ld. defence counsel has further contended that similarly on Ex.PW23/A the thumb impression of the patient is not there on the encircled portion which shows some tempering in preparing these MLCs in connivance with the complainant and his associates. In MLC Ex.PW20/B and Ex.PW23/A alleged history is mentioned as gunshot wound, nature of injuries in both these 17 MLCs has been opined to be grievous in nature. Even both PW20 and PW23 has stated that as per record injuries on Ex.PW20/B and Ex.PW23/A were gunshot injuries. Merely because thumb impressions on Ex.PW20/B and Ex.PW23/A were not taken on the encircled portion, it cannot be concluded that MLCs were manipulated by the complainant and his associates in connivance with these doctors. Similarly mere cutting on the name of the patient on Ex.PW20/B does not prove in any way that MLC of other patient was shown as MLC Ex.PW20/B of Mohd. Sahmat (PW11).
23. One of the main contention raised by Ld. defence counsel for the accused persons is that in fact accused Vinod was beaten by complainant PW11, PW15, PW16, PW17 and their other associates but in connivance with the police these accused persons were falsely implicated in the present case. It is further contended by Ld. defence counsel that in fact Mohd. Sahmat and Phool Kant had sustained injuries in the cross fire done by complainant and their associates and accused except Ashok and Hari Kishan were not at all present at the spot. These contentions raised by Ld. defence counsel are discussed at length in cross case SC No.74/07 and with detailed reasoning has been disbelieved. Since the cross case is decided together with this case instead of discussing these contentions raised by Ld. defence counsel here, for the sake of brevity judicial notice of those observations are taken.
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24. The other contention raised by Ld. defence counsel is that as per the complainant PW14 Kedar Prasad the shot fired by Ashok hit Mohd. Sahmat but in police complaint Ex.PW14/A complainant has nowhere mentioned if accused Ashok fired at Mohd. Sahmat. The Ld. counsel further contended that similarly PW11 Mohd. Sahmat, PW15 Phool Kant Mishra, PW16 Mohd. Salamat and PW17 Om Prakash in their statements made to the police u/s. 161 Cr. PC have stated that accused Badle fired at accused Mohd. Sahmat but while deposing before this Court they have made improvements by stating that it was the accused Ashok who fired at accused Mohd. Sahmat. Ld. defence counsel has contended that it is a major improvement in the testimonies of these witnesses who are stated to be the injured and the eye witnesses to the entire incident and it shake their credibility and falsify the prosecution case. Ex.PW15/DA is the statement of PW15 Phool Kant Mishra, Ex.PW16/DA is the statement of PW16 Mohd. Salamat, Ex.PW17/DA is the statement of PW17 Om Prakash, Ex.PW14/DA is the statement of complainant PW14 Kedar Prasad and Ex.PW11/DA is the statement of PW11 Mohd. Sahmat recorded u/s. 161 Cr. PC. All these witnesses in these statements has stated that accused Badle fired from his rifle and a bullet hit the leg of Mohd. Sahmat. Complainant PW14 Kedar Prasad during his crossexamination has stated that he had named Ashok in his statement to the police as the person who had fired upon Sahmat but the police deliberately recorded the name of Badle in his place in order to save Ashok who is a Govt. servant. The Ld. defence counsel has further pointed out various 19 contradictions in the statements of complainant and other prosecution witnesses.
25. PW19 Ct. Murari Lal is an other eye witness to the incident who happened to reach at the spot. He has corroborated the version of incident as deposed by complainant and other witnesses except the role played by accused Badle. As per this witness accused Badle was having rifle and he fired at Sahmat. I agree with the contention raised by Ld. Defence counsel that whether accused Badle fired at accused Sahmat or accused Ashok fired at accused Sahmat is a contradiction which has come in the statement of various witnesses examined by prosecution. There are contradictions in the statements of the witnesses in naming the accused persons as PW16 has named eight accused persons except Ved Pal, PW17 has again named eight accused persons leaving accused Vinod, whereas all the other witnesses has correctly named and identified the accused persons. But the point to be seen here is whether these contradiction goes to the core of the matter and discredit the testimonies of all the prosecution witnesses and the entire prosecution case. Except the role played by accused Badle in the entire incident all the other contradictions pointed out by Ld. defence counsel are minor in nature which does not go to the root of the matter. The reliance is placed upon 2002 (1) SCR 1011, the case titled Allah Rakha K. Mansoori Vs. State of Gujrat. Wherein the Apex Court has observed that the minor contradictions appearing in the testimonies of the witnesses, instead of discarding their testimonies 20 strengthen the case of prosecution showing the witnesses being truthful as they were not shown to have made parrot like statements. Regarding improvements exaggeration in the statements of the witnesses the Apex Court in 1997 SCC (Cri) 118, the case titled Meharban and others Vs. State of M.P, has observed that Court has to adjudge the substratum of the case and in doing so grain has to be separated from chaff. It is settled law some improvements here and some exaggerations there or some minor discrepancies in the evidence do not hit the prosecution case.
26. It is admitted case of both the parties that there was some dispute over a piece of land between the accused Hari Kishan and the complainant. Whether complainant was in possession of the property as a rightful owner or complainant was in possession without being rightful owner or whether complainant tried to usurp the disputed property are not the relevant questions which needs to be answer before pronouncing verdict in this case. It is not within the jurisdiction of this Court to adjudicate the rightful ownership of the disputed piece of land. While appreciating the testimonies of the witnesses recorded by the prosecution, it has to be seen if accused were the perpetrators of the crime with which they have been charged.
27. While appreciating the testimonies of the witnesses, prosecution case has to be seen in totality. The testimonies of complainant PW14, PW11, PW15, PW16, PW17 and PW19 are consistent on the material 21 particulars and are found credit worthy. Complainant/injured in this case and the accused persons were known to each other. All the witnesses has correctly named and identified the accused persons. Even PW19 Ct. Murari Lal has identified accused Hari Kishan, Badle, Jagar, Satish, Vijay, Rakesh, Vinod and Bedi. Ex.PW7/F is the seizure memo of rifle of .315 bore stated to have been produced by accused Badle. It is not disputed by the accused that he had not produced this rifle which was seized by the police. The case of the prosecution is that accused Badle had used this rifle for firing at accused Sahmat. Ex.PW7/A is the seizure memo of one bullet head recovered from the spot by IO PW25. Whether bullet head recovered from the spot was fired from the rifle seized from the possession of accused Badle has not been proved by the prosecution on record. The case properties were sent to CFSL but the said report was not duly proved on record as was not favouring the prosecution.
28. The statements of complainant PW14, injured PW11, PW15, PW17 and PW16 are consistent and corroborate each other on all the material particulars of the case. Their testimonies are also found to be credible. Statement of PW19 Ct. Murari Lal who happened to reach at the spot in discharge of his official duties is also supporting the statements of the witnesses mentioned above. The main contradiction in the statement of PW19 and other eye witnesses is that as per PW19 accused Badle fired at Mohd. Sahmat whereas all the other witnesses has deposed that it was accused Ashok who fired at PW11 Mohd. 22 Sahmat. Except the recovery of rifle from possession of accused Badle there is recovery of no other weapon from the possession of any of the accused persons. However, it is well settled that from the mere non recovery of the weapon alone, the case against the accused concerned cannot be held to be non substantiated when there is otherwise positive, convincing and credible ocular evidence to prove the presence of the said accused persons and their participation in the crime. The reliance is placed upon 2002 (8) JT 238, the case titled Gurjant Singh V/s. State of Punjab.
29. The accused persons are also charged for the commission of offence u/s. 148/149 IPC alongwith 307/149 IPC. It stands established that form the evidence on record that accused constituted unlawful assembly to obtain possession of the disputed piece of land by means of criminal force. The allegations of doing firing are only against the accused Badle or Ashok and accused Jagar. The nature of injuries sustained by PW11 Mohd. Sahmat and PW15 Phool Kant Mishra proves that there was an attempt to murder committed by accused persons. The relevant point to be considered here is whether it was the individual act of accused Ashok and Jagar by opening fire upon PW11 and PW15 or all the accused persons being member of the unlawful assembly committed the offence of firing upon PW11 and PW15 in prosecution of their common object. The meaning of "common object" has been discussed by the Apex Court in Crl. Appeal No. 743 of 2009 (the date of decision 16.4.09) the case titled Bhupendra Singh and others Vs. 23 State of U.P. The relevant paras 16,17 and 18 are as follows :
16. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assemble cannot render a person liable unless there was a common object and he was actuated by that object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who composed the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the 24 common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and their knowledge, possessed by each member of what is likely to be committed in prosecution of their common objective which may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.
17. "Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become 25 unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
18. Section 149 IPC consists of two parts. The first part of the Section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the unlawful assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, likely intention, has generally to be gathered form the act which the person commits and the result therefrom. Though no hardandfast rule can be laid down under the circumstances from which the common object 26 can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it can not be made to bear the sense of "might have been known" . Positive knowledge is necessary.
When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part or it was an offence such as the members such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part but offences committed in prosecution of the common object ; would be generally, if not always , be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object.
30. The dispute between complainant and the accused persons over this plot of land did not erupt suddenly, it was in existence prior to the date of incident i.e. 20.1.2000. As per complainant PW14, PW11, PW 16, PW17 and PW19 all the nine accused reached at the spot armed with rifle, kattas and dandas and attacked upon Mohd. Sahmat (PW
11), Om Prakash (PW17) and Phool Kant Mishra (PW15). As per these witnesses accused Hari Kishan and Badle had visited the spot in 27 the morning also and has threatened the masons, labourers and complainant asking them to stop construction. The subsequent arrival of accused Hari Kishan and Badle with their other seven coaccused armed with deadly weapons like kattas and dandas clearly establish that they share the common object to take possession of the disputed piece of land by use of criminal force. As it stands established that all the accused persons reached at the spot constituting unlawful assembly and in prosecution of their common object, the contradiction in the statements of complainant PW14, PW11, PW15, PW16 and PW17 regarding who fired at Mohd. Sahmat (PW11) and whether it was accused Badle or accused Ashok, visavis their statements recorded u/s. 161 Cr. PC becomes insignificant. Under these established facts same is the fate of contradiction in the statement of PW19 visavis statement of PW14, PW11,PW15, PW16 and PW17 regarding who fired at PW11 (whether it was accused Badle or Ashok).
31. In view of the aforesaid reasons, I hold that prosecution has been able to successfully prove beyond reasonable doubt that all the nine accused persons sharing common object constituted unlawful assembly to take possession of disputed piece of land by means of criminal force and in prosecution of their common object on 20.1.2000 around 3 p.m armed with deadly weapons attacked complainant PW14 Kedar Prasad, PW15 Phool Kant Mishra, Mason PW11 Mohd. Sahmat and PW16 Mohd. Salamat and labourer Om Prakash causing gunshot injuries to PW11 and PW15 and simple injuries to PW17. All the nine 28 accused persons are accordingly held guilty for the commission of offence punishable u/s. 148 and 307/149 IPC. Accused Badle is also held guilty for the offence punishable u/s. 27 Arms Act. Accused persons are convicted accordingly.
Announced in the open Court ( SANJAY GARG )
th
on 28 day of January, 2010. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.29
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC and 27 Arms Act P.S: Khajoori Khas State Versus Badle S/o. Bhola, R/o. Village Behari Pur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Badle.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is around 80 years of age. It is stated that he had remained as Pradhan of the Village and being the senior citizen is respectable person of the area. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for one and half months in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits 30 that lenient view be taken against the accused while awarding sentence.
3. As per record convict has undergone around one and half months imprisonment as an undertrial in this case. The convict is an aged man of 80 years. He has suffered the agony of trial for last 10 years in his ripe age. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view his age of 80 yeas and the protracted trial faced by him for 10 years, in my opinion, he deserves lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 3 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. For the offence punishable u/s. 27 Arms Act he is sentenced to undergo RI for 3 years and shall also be 31 liable to pay fine of Rs.250/ in default to undergo SI for 15 days. All the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
st
on 1 day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
32
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Rakesh S/o. Mahender R/o. Gali No. 16, E Block, Sonia Vihar, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Rakesh.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 35 years of age and having a family constituting his wife and two children aged 4 years and 1 year. It is stated that his old parents are also dependent upon him for their livelihood as he is the only earning member of the family. It is stated that he is working as a plumber. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for about 3½ months in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the 33 Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be taken against the accused while awarding sentence.
3. As per record convict has undergone around 3½ months imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the facts of the case, in my opinion, he does not deserves any lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently. 34
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 1st day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
35
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Vijay Pal R/o. Gali No. 16, E Block, Sonia Vihar, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Vijay Pal.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 28 years of age. It is stated that he is working as a flower seller and he is not involved in any other criminal case. It is stated that he had remained behind bar for 3 months in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be taken against the accused while awarding sentence. 36
3. As per record convict has undergone around 3 months imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the facts of the case, in my opinion, he does not deserves any lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment 37 and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
st
on 1 day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
38
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Satish @ Dhara S/o. Sish Ram R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Satish.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 34 years of age. It is stated that he is working as shopkeeper and his family consisting his wife and old father dependent upon him as he is the only earning member in the family. It is stated that he had remained behind bar for around 40 days in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be 39 taken against the accused while awarding sentence.
3. As per record convict has undergone around 40 days imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the facts of the case, in my opinion, he does not deserves any lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record 40 room.
Announced in the open Court ( SANJAY GARG )
on 1st day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
41
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Hari Kishan S/o. Badle R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Hari Kishan.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is submits that the convict is around 80 years of age. It is stated that he being the senior citizen is respectable person of the area. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for one and a half month in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient 42 view be taken against the accused while awarding sentence.
3. As per record convict has undergone around 1 and a half months imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the age of the convict and the protracted trial faced by him , in my opinion, he deserves lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 3 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record 43 room.
Announced in the open Court ( SANJAY GARG )
on 1st day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
44
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Vinod S/o. Sardar Singh R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Vinod.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is submits that the convict is around 42 years of age and his family consisting of his old parents, wife and three children dependent upon him for their livelihood. It is stated that he is running a shop. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for 6 days in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] 45 JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be taken against the accused while awarding sentence.
3. As per record convict has undergone only 6 days imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the facts of the case, in my opinion, he does not deserves any lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment 46 and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
st
on 1 day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
47
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Jagger Singh S/o. Jai Ram R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Jagger Singh.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 60 years of age. He is working as agriculturist. It is stated that he is having old mother, wife and three children. His one son and one daughter are married and one son is unmarried who is also and agriculturist. It is stated that his old mother and wife are dependent upon him for their livelihood. It is stated that he is not involved in any other criminal case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) 48 JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be taken against the accused while awarding sentence.
3. The convict has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958.
But keeping in view the facts of the case, in my opinion, he does not
deserves any lenient view while awarding sentence. The convict is
sentenced as under :
For the offence punishable u/s. 307 IPC he is
sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment 49 and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
st
on 1 day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
50
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Ashok Kumar S/o. Hari Kishan R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Ashok Kumar.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 46 years of age and he is working in Delhi Jal Board as a Beldar. It is submitted that he is having old parents, wife and four children who are entirely dependent upon him for their livelihood. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for about one month in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. He submits that lenient view be 51 taken against the accused while awarding sentence. He submits that lenient view be taken against the accused while awarding sentence.
3. As per record convict has undergone around one month imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958. But keeping in view the facts of the case, in my opinion, he does not deserves any lenient view while awarding sentence. The convict is sentenced as under : For the offence punishable u/s. 307 IPC he is sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment 52 and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
st
on 1 day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
53
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 73/07 FIR No. 16/00 U/S: 307/149/148 IPC P.S: Khajoori Khas State Versus Bed Pal @ Bedi S/o. Hari Kishan R/o. Village Biharipur, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. B.K. Sharma, Ld. Defence Counsel for the convict Bed Pal @ Bedi.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. defence counsel for the convict submits that the convict is 50 years of age and working in Delhi Jal Board as Beldar. It is stated that he is having old parents, wife and six children. Two out of them are married and the remaining are studying. All his family is dependent upon him for their livelihood. It is stated that he is not involved in any other criminal case. It is stated that he had remained behind bar for about 40 days in this case. It is stated that he is facing the trauma of trial for the last 10 years and he deserves the benefit of Probation of Offenders Act. In support of his contentions the Ld. counsel has relied upon 1992 JCC 567, 2006 (2) JCC 1188, 2005 [1] JCC 283 and 2005 [3] JCC 1354. 54 He submits that lenient view be taken against the accused while awarding sentence.
2. As per record convict has undergone around 40 days imprisonment as an undertrial in this case. He has suffered the agony of trial for last 10 years. The judgments relied upon by the Ld. defence counsel for extending the benefit of Probation of Offenders Act to the convict are distinguishable from the facts of this case. In 1992 JCC 567, the benefit of probation is extended to the convict as occurrence was outcome of sudden flair up. But as per the facts discussed the convict alongwith his other associates reached at the spot armed with deadly weapons sharing common object. In 2005 (1) JCC 283 the injuries suffered by victim were not grievous in nature and due to this reason benefit of Probation of Offenders Act, 1958 was given to the convict. However, keeping in view the nature of offence proved against the convict, in my opinion, he does not deserve benefit of Probation of Offenders Act, 1958.
But keeping in view the facts of the case, in my opinion, he does not
deserves any lenient view while awarding sentence. The convict is
sentenced as under :
For the offence punishable u/s. 307 IPC he is
sentenced to the RI for 5 years and shall also be liable to pay fine of Rs.500/ in default to undergo SI for one month. For the offence punishable u/s. 148 IPC he is sentenced to undergo RI for 1 years and shall also be liable to pay fine of Rs.250/ in default to undergo SI for 15 days. Both the sentences to run concurrently. 55
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 1st day of February, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.