Chander Jha vs State
2012 Latest Caselaw 3919 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. A. No. 391/2002

%                                        Decided on:6th July, 2012

       CHANDER JHA                                    ..... Appellant
                               Through   : Ms. Rakhi Dubey, Adv.

                      versus

       STATE                                         ... Respondent
                               Through   :Mr. Mukesh Gupta, APP

A.K. PATHAK, J. (Oral)

1. Aggrieved by his conviction under Sections 307 I.P.C. and 27

of the Arms Act, appellant has preferred this appeal.

2. In brief, prosecution case is that on 19th October, 1998 at

about 10.30 PM a secret informer brought to the notice of Inspector

Ashwani Kumar, Additional Station House Officer, Police Station

Adarsh Nagar that three persons armed with arms and ammunitions

would come on a blue coloured two-wheeler Azadpur Mandi from

Village Bharola side. On receiving this information, Inspector

Ashwani Kumar constituted a raiding party comprising of himself,

Sub Inspector Rakesh Kumar, Head Constable Om Prakash, Head

Constable Virender Singh, Constable Yashpal, Constable

Dharampal, Constable Ram Phal, Constable Hari Kishan and

Constable Vinod Kumar. Thereafter, raiding party reached Sabzi

Mandi, Azadpur in a Government vehicle bearing no. DNH 5368

driven by Constable Suresh Kumar. Police party took position near

a tomato shed. At about 11:15 PM three persons were seen coming

on a blue coloured scooter from Village Bharola side. They were

not wearing helmets. On the pointing of secret informer, Inspector

Ashwani Kumar gave signal to the scooterist to stop. Scooter was

stopped at about 20 meters away and thereafter all the three

occupants started running towards Sarai Pipal Thala Bagh. Police

party gave a chase to them. Appellant took out a revolver and fired

towards Inspector Ashwani Kumar twice, however, he continued

his pursuit and overpowered him. Other police officials

apprehended remaining two accused, namely, Mohd. Chuttan and

Jawahar Singh who were also armed with Desi Kattas. I need not to

discuss about the role of co-accused since this Appeal is only on

behalf of the appellant Chander Jha.

3. From the possession of appellant one loaded revolver was

recovered. Four live cartridges were there in the revolver. Two

empty shells of the fired cartridges were also recovered. Sketch of

the revolver, live cartridges and empty shells was prepared.

Thereafter same were sealed in pullanda with the seal of AKJ. Site

plan was prepared. Case properties, that is, revolver, live cartridges

and empty shells of fired cartridges as also the scooter were

deposited in the Malkhana. Pullanda containing revolver, live

cartridges and fired cartridges were sent to CFSL, Chandigarh. As

per CFSL, Chandigarh revolver was capable of firing and used

cartridges had been fired from the same revolver.

4. Charge under Sections 307/34 IPC was framed against the

appellant and other accused persons on 14th October, 1999.

Separate charge under Section 27 of the Arms Act, 1959 was also

framed against the appellant. Appellant pleaded not guilty and

claimed trial.

5. Prosecution has examined 14 witnesses in all. PW5

Constable Vinod, PW6 Constable Yash Pal, PW7 HC Varinder

Singh, PW9 HC Om Prakash, PW12 SI Rakesh Kumar and PW13

Inspector Ashwani Kumar are members of the raiding party. PW2

HC Sewa Ram was working as Malkhana Moharrar with whom

case properties were deposited by Inspector Ashwani Kumar. PW4

Head Constable Manoj Kumar had taken the pullanda containing

revolver, live cartridges and fired cartridges to CFSL, Chandigarh

and had deposited the same there. Mr. B. Badanaya, Senior

Scientific Officer, CFSL, Chandigarh has been examined as PW14.

He has proved the CFSL report, according to which two .38 bore

cartridges C-1 and C-2 had been fired from the revolver in question.

Learned Additional Sessions Judge has found testimonies of the

aforesaid witnesses to be trustworthy and reliable and sufficient

enough to conclude that it is the appellant, who had fired at the

police party, thus, had committed an offence punishable under

Section 307 IPC. He has further concluded that appellant was

guilty of committing an offence under Section 27 Arms Act, 1959

for using the firearm.

6. I have also perused the statements of prosecution witnesses,

recorded before the trial court. In my view, statement of PW5

Constable Vinod cannot be read against the appellant. This witness

was partly examined on 3rd August, 2000 and his remaining

examination was deferred. Thereafter, he has not stepped in the

witness box. Thus, in my view, his testimony has to be ignored.

PW6 Constable Yashpal though had supported the prosecution on

material points but has wavered from his statement recorded under

Section 161 Cr.P.C., thus, was cross-examined by the Additional

Public Prosecutor. He had wrongly given the year of incident as

1997 and has clarified the date, month and year of incident in his

cross-examination by the Additional Public Prosecutor to be 19th

October, 1998. On certain other points also he has wavered.

However, I need not to delve much on this point since even if the

testimony of this witness is ignored sufficient material is there to

establish the guilt of appellant beyond shadow of reasonable doubt.

Prosecution is armed with testimonies of remaining members of the

raiding party, who have corroborated each other with regard to the

incident, identity of the appellant as also recovery of fire arm from

him together with live and fired cartridges. Testimonies of other

witnesses, namely, PW7 HC Varinder Singh, PW9 HC Om Prakash,

PW12 SI Rakesh Kumar and PW13 Inspector Ashwani Kumar have

remained unshattered in their cross-examinations. All these

witnesses have deposed in line with the prosecution case and have

rightly been taken as trustworthy and reliable witnesses by the trial

court.

7. PW13 Inspector Ashwani Kumar was heading the team. He

has deposed that on 19th October, 1998 he was posted as Additional

Station House Officer at Police Station Adarsh Nagar when he

received a secret information at about 10:30 P.M. that three boys

would come to fruit Mandi Azadpur from Village Bharola side and

they would be carrying arms and ammunition. On receiving this

information, he formed a raiding party comprising of SI Rakesh

Kumar (PW12), HC Varinder Singh (PW7), HC Om Prakash

(PW9), Constable Ram Phal, Constable Vinod (PW5), Constable

Hari Kishan and Constable Yashpal (PW6). Thereafter, he

alongwith them reached near the Sabzi Mandi in a Government

vehicle bearing no. DNH 5368. Vehicle was parked near Sulabh

Sauchalaya, which was near the tomato shed. At about 11:15 PM

informer pointed out towards a two wheeler scooter coming from

the side of Village Bharola on which three persons without helmets,

were sitting. He gave signal to the scooterists to stop at which

scooter stopped about 20 meters away from the raiding party.

Thereafter, occupants started running after leaving the scooter.

Chander Jha took out a revolver from his pocket of pant and fired

twice aiming the police party. However, he was apprehended by

him. A revolver was recovered from Chander Jha. On checking it

found containing four live cartridges. Two used cartridges were

also there. Sketch of the revolver and cartridges were prepared.

Revolver and cartridges were sealed. Scooter bearing no. DL-2SC-

8980, which was being driven by Chander Jha, was seized. Later

on, case properties were deposited in the Malkhana with Malkhana

Moharrar. During the investigation, same were sent to CFSL,

Chandigarh for examination. CFSL report Ex. PA was obtained.

Sanction under Section 39 of the Arms Act, 1959 from the Deputy

Commissioner of Police was obtained. Revolver recovered from

Chander Jha has been identified by him in Court, which has been

exhibited as Ex. P-6. The cartridges found in the revolver have

been exhibited as Ex. P-7/1 to Ex. P-7/6. Testimony of PW13 has

remained unshattered in his cross-examination.

8. PW7 HC Varinder Singh, PW9 HC Om Prakash and PW12

SI Rakesh Kumar have fully corroborated the version of PW13 on

material points. Testimonies of PW7, 9 and 12 have remained

unshattered in their cross-examination. In my view, trial court has

rightly accepted their testimonies to hold that on receiving a secret

information Inspector Ashwani Kumar constituted the raiding party

comprising of aforesaid police officials, who took position near

Sulabh Sauchalaya and at about 11:30 PM scooter driven by

appellant on which the two co-accused were also sitting was seen

coming from Bharola Village side and when signal was given to

them to stop appellant stopped the scooter and all the occupants

started running. They were given a chase at which appellant fired

twice aiming the police officials. However, police party continued

with its pursuit and Inspector Ashwani Kumar overpowered the

appellant. The recovery of revolver, fired and live cartridges has

also been proved from the statement of the witness.

9. MHC(M) PW2 HC Sewa Ram was working as Malkhana

Moharrar has deposed that Inspector Ashwani Kumar had deposited

pullanda sealed with the seal of AKJ containing one revolver with

four live cartridges, two used cartridges. His testimony has

remained unchallenged, inasmuch as, this witness has not even been

cross-examined. CFSL report Ex. PA has confirmed that the fired

cartridges had been fired from the revolver recovered from the

appellant. Testimony of this witness has proved that the case

property was sealed at the spot and was deposited in the malkhana

without any undue delay and later on, was sent to CFSL,

Chandigarh. PW4 HC Manoj Kumar had taken the sealed pullanda

to CFSL, Chandigarh and had deposited there. He has categorically

deposed that till the time case property remained with him no one

tampered the same. His this version has remained unshattered in

his cross-examination.

10. Learned Amicus Curiae has vehemently contended that PW9

has failed to give the details of arms issued to him from the

Malkhana, inasmuch as, no DD entry in this regard had been

produced. This shows that revolver was planted on the appellant. I

do not find any force in this contention of learned Amicus Curiae.

In my view, arms and ammunitions issued to PW9, in no way, could

have been planted on the accused. Revolver recovered from the

appellant is not an official weapon. Learned Amicus Curiae has

further contended that PW12 has failed to give the number of

Government vehicle in which police party had gone to New Sabzi

Mandi from the Police Station, this, itself shows that the whole case

has been fabricated. In my view, testimony of PW12 cannot be

discarded, merely because, he was not able to give the number of

Government vehicle, after about three years of incident. Memory

of a person is not infallible. If a person fails to remember the

minute details like vehicle number after three years would not mean

that his testimony with regard to the incident has to be discarded as

a whole. Even otherwise, appellant cannot derive any mileage from

this, as every member of raiding party has given the number of

government vehicle. It is further contended that appellant has taken

a defence in his statement under Section 313 Cr.P.C. that he was

picked up from his house and implicated in this case in order to

solve FIR No. 277/1998 registered at Police Station Adarsh Nagar.

I do not find any force in this contention either. This contention is

nothing but an absurd proposition. In case the police officials

wanted to implicate the appellant in any other pending investigation

they could have done so without registering any new case against

him. That apart, appellant has not led any evidence to show that he

was picked up from his house.

11. Learned Amicus Curiae has further contended that the seizure

memo of revolver and the cartridges does not bear signatures of the

appellant which falsifies the recovery. In my view on seizure

memo signatures of accused are not required. Learned Amicus

Curiae has further contended that the PW4 has deposed that he had

taken the case properties to CFSL, Chandigarh on 17th November,

1998, but the same was not accepted since CFSL needed more

quantity of live cartridges for lab test purposes. He returned back

and on 14th December, 1998 he again went to CFSL, Chandigarh

along with other parcel containing freshly purchased cartridges

sealed with the seal of AKJ and deposited the same. She has further

contended that no document was produced to support this that live

cartridges as desired by the CFSL had been purchased. This

argument is of not much importance, in view of the statement of

PW14 Dr. B. Badanaya who has deposed that the test fire was done

from the live cartridges of .38 bore from which it was revealed that

the fired cartridges sent for testing, had been fired from the same

revolver. What is relevant is the question of tampering of the fired

cartridges and not of the live cartridges. As regards tampering of

the recovered revolver and fired cartridges are concerned, PW4 has

categorically deposed that till the time case property remained with

him, nobody tampered with the same. This statement has remained

unshaken.

12. Learned Amicus Curiae has next contended that no one was

injured thus ingredients of offence under Section 307 are not

attracted. I do not find any force in this contention. To justify

conviction under Section 307 IPC it is not essential that bodily

injury capable of causing death, should have been inflicted and an

attempt in order to be criminal need not be penultimate act

foreboding death. It is sufficient in law if intent is present coupled

with some overt act in execution thereof, such act being proximate

to the crime and if the attempt has gone so far that it would have

been complete but for the extraneous intervention which frustrated

its consummation. In Om Prakash vs. State of Punjab, AIR 1961

SC 1782, Apex Court held that in cases of attempt to commit

murder by fire arms, the act amounting to an attempt to commit

murder is bound to be the only and the last act to be done by the

culprit. Till he fires, he does not do any act towards the

commission of the offence and once he fires, and something

happens to prevent the shot taking effect, the offence under Section

307 IPC is made out.

13. Section 307 IPC of the Indian Penal Code reads as under:-

"307 IPC. 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.

Attempts by life convicts.--[When any person offending under this section is

under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]"

14. Supreme Court in State of Maharashtra vs. Kashirao, AIR

2003( SC) 3901 has held thus, "The essential ingredients required to

be proved in the case of an offence under Section 307 are:- (i) That

the death of a human being was attempted; (ii) That such act was

done with the intention of causing death; or that it was done with

the intention of causing such bodily injury as; (a) the accused knew

to be likely to cause death; or (b) was sufficient in the ordinary

course of nature to cause death, or that the accused attempted to

cause death by doing an act known to him to be so imminently

dangerous that it must in all probability cause (a) death, or (b) such

bodily injury as is likely to cause death, the accused having no

excuse for incurring the risk of causing such death or injury". It

was further observed that for the application of Section 307 IPC it is

not necessary that the injury capable of causing death should have

been actually inflicted.

15. In my view, if an accused does an act with sufficient guilty

intention and knowledge and in circumstances, which do not from

their nature afford a defence from a charge of murder, and if the act

is of such a nature as would have caused death in the usual course

of events but for something beyond the accused's control which

prevented that result, then the case would fall within the Section

307 IPC. What Section 307 IPC really means is that the accused

must do an act with such a guilty intention and knowledge and in

such circumstances that but for some intervening fact the act would

amount to murder in the normal course of events. In this case,

appellant with co-accused persons started running in order to evade

apprehension by the police party and with a view to stop them and

in order to deter them from their continuous pursuit, he aimed

towards the police party and fired on them twice. From the above

circumstances, appellant's intention becomes clear that he had

intended to cause such bodily injuries to one or more members of

the police party by using fire arms, which would have been capable

of causing death, had shots have hit any of the members of police

party. It is only by the act of God that the aim taken by the

appellant while running missed and fortunately enough for the

police party that no one sustained injuries. In the facts of this case,

in my view, offence under Section 307 IPC is made out and the trial

court has held so rightly.

16. Revolver was recovered from the appellant, which has been

used in the commission of crime. Sanction under Section 39 of

Arms Act, 1959 has been duly proved by PW8 DCP Pal Dan. He

has categorically deposed that from the material placed before him

he was satisfied that the offence under Section 27 of the Arms Act,

1959 was committed by the appellant, accordingly, he accorded

sanction for prosecution of appellant. He has proved the sanction

order as Ex. PW8/A. I find the same in order and to my mind,

appellant, thus, has been rightly convicted by the trial court under

the said provisions.

17. For the foregoing reasons, appeal is dismissed being devoid

of merits. At the end, I must place on record my appreciation for

the able assistance rendered by the learned Amicus Curiae. Fee of

Amicus Curiae is fixed at `7500/- (Rupees Seven Thousand Five

Hundred Only) to be paid by the Delhi High Court Legal Services

Committee. Copy of the order be sent to Superintendent Jail for

serving it on the appellant.

A.K. PATHAK, J.

JULY06, 2012 rb