Prafulla C. Pant, J.@mdashBoth these appeals are directed against judgment and order dated 09-02-2010, passed by Learned Additional Sessions Judge/IV Fast Track Court, Haridwar, in Sessions Trial No. 253 of 2003, whereby said court has acquitted accused Rajiv Garg @ Raju from the charge of the offences punishable u/s 307 and 504 of Indian Penal Code, 1860 (for short I.P.C.).
2. Heard learned Counsel for the parties and perused the lower court record.
3. Prosecution story in brief is that on 30th of December 2002 complainant Sudesh Kumar Saini (PW1) along with Rajenesh Kumar Saini (PW2), Shahjad, Vinayvats, Kunwarpal and complainant Ajay Chaudhary (PW4) were coming back from POLERIS HOTEL in Roorkee, after having their meals. They were in two cars. When they reached near "Rupali Furniture" showroom accused Rajiv Garg @ Raju, who was coming in a jeep bearing registration No. 5109 stopped his vehicle in front of the car in which complainant and others were coming, as such the two cars had to get stopped. Soon thereafter accused/Appellant Rajiv Garg @ Raju got down from the jeep with one another person. He (Rajiv Garg) started hurling abuses at complainant Ajay Chaudhary and took out his pistol. Prosecution case is that accused Rajiv Garg @ Raju fired 4-5 shots at Ajay Chaudhary (PW4) who suffered fire arm injuries on his back and legs. Rajnish Kumar Saini(PW2) and others who were accompanying Ajay Chaudhary, got Rajiv Garg @ Raju disarmed and snatched his pistol. Ajay Chaudhary was immediately taken to Pal Clinic and Nursing Home where his injuries were examined at 11.30 p.m. (on 30-12-2002), and he had to undergo surgery. Meanwhile, PW1 Sudesh Kumar Saini wrote first information report (Ex. A1) and lodged the same at police station Kotwali Civil Lines, Roorkee, at about 00.10 am, i.e. soon after the midnight (within one hour and ten minutes). On the basis of said report crime No. 369 of 2002 was registered against accused Rajiv Garg @ Raju relating to offences punishable u/s 307 I.P.C. Investigation was taken up by PW7 Sub Inspector Mahesh Chand Panchbahiya. The licensed pistol No. 79593 snatched from the accused was also handed over to the police at the time of lodging of first information report. The Investigating Officer interrogated witnesses. He also took accused Rajiv Garg @ Raju in his custody in early lours on 31-12-2002. The accused was got medically examined in the intervening night of 30-31 of December 2002 at 2 a.m. in JNSM Government hospital Roorkee and it was found that the accused Rajiv Garg @ Raju was smelling of alcohol and was slightly under intoxication. In the Pal Clinic and Nursing Home where injured Ajay Chaudhary was examined at 11.30 pm on 30th of December 2002, as many as four gun shot wounds (in all six fire arm entry wounds) were recorded by Dr. Rajendra Pal (PW 5) who prepared injury report (Ex-A5). Supplementary report (Ex-A7) of said Medical Officer shows that injured was operated upon for more than three hours after midnight. After completion of Investigation charge sheet (Ex-A12) was filed by the Investigating Officer against the accused Rajiv Garg @ Raju for his trial in respect of offences punishable under Sections 307 and 504 I.P.C.
4. Additional Chief Judicial Magistrate, Roorkee, on 07-02-2003, on receipt of the charge sheet, after giving necessary copies, to the accused, as required u/s 207 of Code of Criminal Procedure ., committed to the case of court of sessions for the trial. Learned Additional Sessions Judge, Roorkee, on 22-01-2004, after hearing the parties, framed charge of offences punishable under Sections 307 and 504 I.P.C., to which the accused against Rajiv Garg @ Raju, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Sudesh Kumar (complainant and eye witness), PW2 Rajnish Kumar Saini (another eye witness), PW3 Gayur Ali (who handed over blood stained clothes of the injured to the police), PW4 Ajay Chaudhary (injured/eye witness), PW5 Dr. Rajendra Pal (who recorded injury of Ajay Chaudhary, and was part of the team of Medical Officers who operated upon injured), PW6 Assistant Sub Inspector Jagdish Kumar (who prepared recovery memo at the police station after receiving the pistol belonging to the accused deposited by the complainant) and PW7 Sub Inspector Mahesh Chand Panchbahiya (who investigated the crime). Apart from the prosecution witnesses, CW1 (court witness no 1) Rohtash @ Rodas, an Assistant Director of Forensic Laboratory, Agra was got examined. Oral and documentary evidence was put to the accused u/s 313 of Code of Criminal Procedure , in reply to which he alleged that evidence against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties found that the prosecution has failed to prove charge of offences punishable under Sections 307 and 504 of I.PC, against accused Rajiv Garg @ Raju, beyond shadow on reasonable doubt, and acquitted him of the charge. Aggrieved by said judgment and order dated 09-02-2010, passed by Learned Additional Sessions Judge/IV Fast Track Court, Haridwar, in Sessions Trial No. 253 of 2003, Appeal No. 33 of 2010 is filed by the complainant u/s 372 of Code of Criminal Procedure , (as amended), and Appeal No. 15 of 2010 is filed by the State, u/s 378 of Code of Criminal Procedure .
5. Before further discussion, we think it just and proper to mention the injuries recorded by PW5 Dr. Rajendra Pal which are mentioned in the inquiry report (Ex-A5) after examining Ajay Chaudhary (PW4) on 30th of December 2002 at 11.30 pm. Said injuries are being reproduced below:
(i) Two gun shots wounds at the back, at the level of L4-L5 on both sides, from centre, wound of entry seen only, with fresh bleeding, 1cm x 1 cm with blackening positive.
(ii) One gun shot wound of entry at left thigh region upper part just at the greater trochentenic region, 1 cm x 1 cm fresh bleeding present.
(iii) One gun shot wound of entry only, at inner aspect of left thigh, 1cm x 1 cm, just above the left knee joint area, no blackening, fresh bleeding present.
(iv) Two gun shots wounds of entry only at right thigh inner aspect, 1cm x 1 cm each, fresh bleeding present, just above the right knee joint region.
Nature of the injury were kept under observation. Duration of injuries was found fresh caused by gun shots. There is report dated 30-12-2002 (Ex-A6) prepared by PW5 Dr. Rajendra Pal which appears to have been sent to Station House Officer of police station Kotwali Civil Lines, Roorkee, regarding the medico legal case of Ajay Kumar Chaudhary (PW4). It is also mentioned in the report that smell of alcohol was coming from the mouth of the injured but he was fully conscious and responsive, and he was not interested for further blood test on alcohol Level, as such it was not done. PW5 Dr. Rajendra Pal prepared supplementary report (Ex-A7) regarding operation being conducted from midnight to 3.15 hours on the patient (Ajay Kumar Chaudhary) son of Shri Satyapal Singh. At the end of said supplementary report it is mentioned that wound No. 1 was dangerous to the life, and wound No. 3 was grievous, other injuries are simple. PW5 Dr. Rajendra Pal has stated before the trial court that the surgery was conducted with the assistance of one Dr. Pratap Singh (surgeon), and Anesthetic Dr. Rashmi Saini. The above medical report clearly establishes on the record that the injured suffered six bullet injuries as two of the above mentioned four injuries suggest that there were two gun shot wounds of entry of fire arm injury quoted above.
6. PW4 Ajay Kumar Chaudhary (injured eyewitness) has stated before the trial court on 30th of December 2002, he had meals with his colleague Kuwarpal, Shahjad Khan, Vinayvats, Rajnish Saini (PW2), Sudesh Saini (PW1) in Poleris Hotel, whereafter they proceeded towards main market in two cars belonging to Rajnish and Shahjad. In the car of Shahjad, Sudesh Saini and the witness (PW4) travelled. In the car of Rajnish Saini, Kuwarpal and Vinayvats accompanied him. When the two cars reached near Municipal Board Sudesh asked that he may be dropped at his house, on this, the cars turned towards that side. When the cars reached near "Rupali Furniture" a jeep bearing registration No. 5109 came from the opposite direction, and from the said car accused/Respondent Rajiv Garg @ Raju got down. He hurled abuses at Ajay Chaudhary. On being asked not to do so, accused Rajiv Garg @ Raju with intention to commit murder of the witness (Ajay Chaudhary) fired shots at him which struck on his back and legs. The witness further stated that his colleagues attempted to apprehend Rajiv Garg but they could only snatch his pistol, and the accused succeeded in fleeing from the spot. PW4 Ajay Chaudhary further stated that it was around 11.00 pm and there were lights of both the vehicles and also electric light on the road. The statement of the above witness gets corroborated from the medical evidence discussed above. The testimony of the witness is natural trust worthy.
7. Apart from the eyewitness account given by PW4, the injured, which is supported by the injury report quoted above, the prosecution story further corroborated from the statement of PW1 Sudesh Kumar Saini and PW2 Rajnish Kumar Saini. They have also stated that they have dined in Poleris Hotel. They proceeded from said hotel, and when they reached near "Rupali Furniture" accused Rajiv Garg @ Raju came in a jeep from the opposite side and stopped in front of the two cars in which the injured and his colleagues were travelling. After getting down from the car, accused Rajiv Garg @ Raju abused Ajay Chaudhary and fired shot from his pistol.
They have also stated that there was electric light on the spot. The two witnesses further corroborate that the pistol was snatched from the accused. PW1 Sudesh Kumar Saini complainant has further stated that at 11 -30 pm he along with Shahjad and Kuwarpal went to police station and lodged first information report (Ex-A1). The witness further states that Ajay Chaudhary was immediately taken to a near by Nursing Home. PW2 Rajnish Saini has stated that pistol (Ex-2) was deposited at the police station on the very day. The recovery memo prepared by PW6 AS! Jagdish Kumar (Ex-A2) relating to the pistol (Ex - 2). This fact has been proved by PW6 ASI Jagdish Kumar. As such, entire prosecution story is proved by the prosecution witness beyond reasonable doubt. PW3 Gayur Ali has stated that he took blood stained clothes on 03-1-2003 from Nursing home of Dr. Rajendra Pal and gave at the police station. He has further disclosed that the empty cartridges which were found during surgery were also handed over to the police.
8. We are shocked to see that the trial court has totally ignored the injuries suffered by the injured, and eye witnesses account given by the eyewitnesses, and instead acquitted the accused on lame excuses.
9. The trial court also mentioned thatfrom the evidence on record it appears that the fired shots were six, but there are six empty cartridges and two bullets, which makes the figure 8. This is totally misreading of evidence on the part of the trial court. The two bullets embedded in the body of the injured, which were taken out, correspond to the empty cartridges, and do not make figure 8.
10. Much emphasis has been laid by the trial court to the fact that in the report of Forensic Science Laboratory, Agra (Ex-A13) it is mentioned that empty cartridges received were of 6.72 mm, whereas pistol allegedly recovered from accused Respondent was of 7.65 mm caliber. On perusal of record we find that CW1 Rohtash @ Rodas, Assistant Director of Forensic Science Laboratory, Agra, has satisfactorily explained this aspect by stating that initially when pistol was sent on 25-02-2003 bullets/cartridges were sent for examination but the pistol was sent in an unsealed condition so it was returned back. The sealed parcel again sent on 15-03-2003 did not contain the empty cartridges, but pistol was sent in a sealed parcel. He has categorically stated that through in the forwarding letter size of bullets was mentioned as 6.72 but inside the parcel there were no cartridges. If we go through the Forensic Laboratory report (Ex-A13), it contains following note:
? ? (2) 6 6.72 ? ? 2 ? ? .32 ? ? |
From the above facts it appears that the Investigating Officer has intentionally tried to temper with the link evidence in order to render support to accused.
11. Having reassessed the entire evidence on record we find that it is fully proved on the record that the charge of offences punishable u/s 307 and 504 I.P.C., is proved beyond reasonable doubt. Therefore, the appeals deserves to be allowed. The appeals are allowed. The impugned judgment and order dated 09-02-2010, passed by Learned Additional Sessions Judge/IV Fast Track Court, Haridwar, in Sessions Trial No. 253 of 2003, is hereby set aside. Accused/Respondent Rajiv Garg @ Raju is convicted under Sections 307 and 504 I.P.C. Considering the facts and circumstance of the case, accused/Respondent Rajiv Garg @ Raju is sentenced to rigorous imprisonment for the period of five years u/s 307 I.P.C, and rigorous imprisonment for a period of three months u/s 504 I.P.C. Both the sentences shall run concurrently, he shall surrender before the trial court to serve out the sentence awarded by this Court. Lower court record be sent back along with the copy of the judgment to make the accused serve the sentence awarded by this Court.
