Aayush @ Minki vs State Of Haryana

Sureshwar Thakur, J

The instant appeal is directed against the verdict, as, recorded by the learned Sessions Judge, Faridabad, on 25.1.2021, upon, CIS No. SC/57/2017, wherethroughs, he proceeded to, in respect of FIR bearing No. 466 of 30.10.2016, registered at Police Station Bhupani, Faridabad, whereins offences constituted under Sections 323, 325, 307 of the IPC, and, under Section 27 of the Arms Act, became embodied, hence make a verdict of conviction, against accused Aayush alias Minki.

Moreover, through a separate sentencing order, drawn on 25. 1.2021, the learned trial Court, proceeded to impose the hereinafter extracted sentence(s) of imprisonment, and, also sentences of fine, upon the convict.

Name of

Offence

Period of

Fine

Period of

the convict

sentence

imposed

sentence in

default of

payment of fine

Aayush @ Minki

307 IPC

Rigorous imprisonment for ten years

Rs. 50,000/-

One year RI

325 IPC

Rigorous imprisonment for five years

Rs. 10,000/-

Six months RI

323 IPC

Rigorous imprisonment for six months

-

-

27 of the Arms Act

Rigorous imprisonment for five years

Rs. 10,000/-

Six Months RI

The convict becomes aggrieved therefrom, and, has strived to cast an onslaught thereons, through his instituting the instant criminal appeal, before this Court.

The genesis of the prosecution case becomes encapsulated in the FIR, to which Ex. PE is assigned. The crime, as occurred at the crime site, is carried in the site plan, to which Ex. PF is assigned.

The prosecution version, as becomes encapsulated in the FIR, and, to which the above exhibit is assigned, is that on 29.10.2016, ASI Bhagat Singh, of Police Station Bhupani along with other officials was present at Bhupani turn for crime detection and patrolling, when he received telephonic information from the police station that in a quarrel, firing had taken place in village Kheri Kalan, and, that injured had been taken to Metro Hospital, Faridabad. Receiving this information, ASI Bhagat Singh along with his team reached Metro Hospital, Faridabad and collected ruqas Ex. PW10/C and Ex. PW10/D regarding admissions of Rahul and Mahesh respectively in an injured condition, and, also collected their MLRs Ex. PW10/E and Ex. PW10/F. He moved application Ex. PW10/G to the Medical Officer seeking opinion about fitness of the injured to make the statement. Mahesh was declared unfit to make the statement, whereas, Rahul was opined to be fit to make the statement vide endorsement Ex. PW10/H of the Medical Officer. ASI Bhagat Singh then recorded the statement of Rahul son of Bhagwat, who disclosed that he is resident of village Hatana, P.S. Kosikalan, District Mathura and presently residing in village Kosi Kalan. On that day i.e. 29.10.2016 at about 7.45-8.00 A.M, he and his cousin (Mama's son) Mahesh son of Satbir were going towards their home. As they reached at Munda Mohalla Chouhara near the gate of house of Jeet, Hukam Chand stopped Mahesh to have conversation with him. From behind, Minki alias Aayush son of Hukam came and hit revolver butt on the head of Mahesh causing injuries to him, due to which he fell on the ground. At the same time, Leelawati wife of Hukam reached there and all three of them started beating Mahesh. Rahul told further that as he tried to save Mahesh, Leelawati alias Patra caught hold of him and then Minki alias Aayush fired shot from his revolver in his foot. He fell down and then accused Aayush alias Minki with an intention to kill him fired several shots towards him, hitting on his left arm, elbow, left armpit besides both the thighs. After injuring him, all the three accused namely Minki alias Aayush, Hukam and Leelawati fled away. He and Mahesh raised alarm, at which Pintu son of Singhraj and Bhopal son of Satbir, who belong to their family reached there, arranged a vehicle and shifted them to Metro Hospital, Faridabad. He prayed for taking necessary action against the assailants.

Though, after completion of recording of the prosecution evidence, rather in the proceedings as became drawn under Section 313 Cr.P.C., the accused chose to lead defence evidence, for establishing his exculpatory plea, that the assault, as allegedly made by him, upon the victim, was a sequel to his exercising the right of private defence of property, and, of body, but the above plea, rather for the reasons assigned hereinafter hence became validly rejected.

The very factum of the rearing of the above plea is amplificatory of the appellant herein acquiescing to the happening of the occurrence, at the crime site, as carried in the site plan, to which Ex. PF is assigned. Be that as it may, after the crime incident happening at the crime site, the investigating officer concerned, proceeded to visit both the victims, inasmuch as, Rahul, and, Mahesh, rather at Metro Hospital, whereins, both became admitted for theirs receiving treatment for the injuries, as became inflicted, upon them, by the convict. However, for ensuring that both, the victims of the assault, being fit, to make the statements, in respect of the penal incident, the investigating officer concerned, moved an application, as embodied in EX.PW-10/G, before the doctor concerned, whereons, an opinion became recorded, to which Ex. PW-10/H is assigned, that though, victim one Rahul was fit to make a statement, but it was opined that the victim one Mahesh rather was unfit to make a statement. Consequently, Rahul made a statement, as embodied in Ex. PB, whereins, he assigned qua the crime incident, an incriminatory role, to the convict.

Primarily, the prosecution case became enjoined to be proven to the hilt, not only through the testifactions of the victims, as, made before the learned trial Judge concerned, but also was required to be proven, through the valid drawings of the memo(s) concerned, wherethroughs, the crime weapon became recovered. Moreover, it also became incumbent, upon, the prosecution to prove through an ably proven MLR, rather the factum of injuries, as became disclosed in the respective testifications of the victims, hence becoming therein also observed, to become caused, on their respective bodies, on each becoming subjected to an assault. In addition, the crime weapon, to which Ex. PJ/1 is assigned, in respect whereof the convict held, as revealed by Ex. P2, a valid licence, was required to become pronounced by the ballistic expert concerned, working at the FSL concerned, to be the weapon, hence wherefroms five cartridges, to which Ex. P-4, became assigned, also becoming fired.

Both the victims, namely, Rahul, and, Mahesh, stepped into the witness box, and, in their respectively made testifications, as carried in their respective examinations-in-chief, they made narrations, rather completely corroborating the genesis of the prosecution case, as became embodied in the FIR, to which Ex. PE is assigned. Moreover, on an incisive reading of their respective cross-examinations, this Court is unable to unearth therefrom any dire improvements, or embellishments, from their respectively made previous statements in writing, nor this Court has been able to unearth therefrom, any rife contradictions from the prosecution version, as became echoed by both, in their respective examinations-in-chief. Therefore, this Court becomes empowered to draw an unflinchingly conclusion, that the untainted depositions of the victims, require the meteings of absolutest sanctity thereto.

Immense fortifications to the above inference, becomes drawn from the factum, as above stated qua the convict raising an exculpatory plea qua his making the relevant assault, upon the victims, rather through his exercising his right of private defence of body, and, of property, but if so, and, assuming if he had made lawful exercisings thereof, yet it would become validated, only when evidence surged-forth qua; (a) the victims of the offence, being equally armed, inasmuch as, both wielding weapons of offence; (b) the victims being the initiators of the aggression, and, for repulsing the aggression, as made by the victims, upon the convict, the latter having no option than his taking to make the assault, upon their respective persons. However, a circumspect reading of the evidence on record reveals, that the above evidence, for ably facilitating the convict to canvass the above exculpatory plea, rather does not exist on record. Therefore, the above exculpatory plea was neither raisable, nor it can become validated by this Court. Contrarily, in the trite face of the raising of the above plea, this Court concludes, that the accused has acquiesced to the happening of the penal incident, as echoed in the FIR, rather at the crime site. In sequel, irrespective of any minimal improvements or embellishments, if any, as may be made in their respective testifications, by PW-1, and, PW-2, hence from their respectively recorded previous statements, in writing, rather are of no significance at all.

The factum of the user of the crime weapon, on the respective persons of the victims, hence sequeling the entailment of injuries on their bodies, has been proven, even by medical evidence. PW-10, who prepared Ex. PW-10/E, has delineated thereins, the hereinafter extracted injuries, as became observed by him, to occur on the body of Rahul.

Lacerated wound posterior aspect of lower 1/3rd of left arm 3 fingers above elbow with irregular margin, tattooing over edge (+) size 0.5 x 0.4 cm with fresh bleeding (+). Adv X.ray left arm elbow and patient referred to orthopedics and general surgeon for further management.

Lacerated wound posterior lateral aspect of upper back on left side 1 x 1 cm circular shape, clear margin with fresh blood (+). Adv- Chst x-ray and referred to General Surgeon for further management.

Lacerated wound anterior aspect of lower half of left arm distance from elbow 1.5 finger distance from the first size 0.1 x 0.1 cm oval with clear margin with fresh blood (+). Adv- x-ray left arm with shoulder and referred to orthopedics and general surgeon for further management.

Lacerated wound anterior aspect of the lower half of the right thigh blackish colour of edge of skin with tatooing over the edge with size 0.5 x 0.5 cm circular shape with fresh bleeding (+). Adv X-ray right thigh with knee and referred to orthopedics and general surgeon for further management.

Lacerated wound anterior aspect of upper half of the left thigh with blackish colour of skin irregular margin, tattooing over edge of skin size 1.5 x 0.5. Adv X-ray left thigh with hip referred to orthopedics and general surgeon for further management.

Lacerated wound anterior lateral aspect of upper half of the left thigh with irregular edge with bleeding (+). size 1.5 x 1.5 x 0.2 cm. Adv X-ray left thigh with hip referred to orthopedics and general surgeon for further management.

Moreover, he has also deposed, that all the above extracted injuries, are firearm injuries. PW-10 has also prepared Ex. PW-10/F, exhibit whereof appertains, to injuries occurring on the person of Mahesh, and, has proven the recorded hereinafter extracted injuries, as, became observed by him, to occur on the person of Mahesh.

Lacerated wound right side posterior aspect of parietal region of scalp size 3 x 2.5 x 0.5 cm, linear clear margin with fresh bleeding (+). Adv X-ray skull and referred to Neuro Surgery Consultation.

Lacerated wound anterior aspect of approx 8 cm right leg below knee, blackish skin with tattooing over edge size 0.2 x 0.2 cm circular clear margin with fresh blood (+). X-ray leg with knee and referred to orthopedics and general surgeon for further management.

Since even in respect of the above injuries, PW-10, has echoed that they are firearm injuries, thereupon, the prosecution through ensuring meteing of sufficient proof qua the drawings of PW-10/E, and PW-10/F, by the author thereof, has connected the injuries delineated thereins to be causable, on the victim(s), rather through user thereons of the crime weapon, to which Ex. PJ/1 is assigned.

Moreover, the prosecution was yet under a solemn legal duty, to also prove, that a valid, and, efficacious recovery of the crime weapon, was made, by the investigating officer concerned. In the above regard, the investigating officer concerned, during the course of his subjecting, the convict to custodial interrogation, had drawn a signatured disclosure statement, as carried in Ex. PH, and, also had drawn a supplementary disclosure statement, hence of the convict, and, to which Ex. PH/1 is assigned. A reading of the above made disclosure statement, and, of the supplementary disclosure statement, hence of the convict, before the investigating officer concerned, does clearly reveal, that the convict had, after confessing his participation in the penal offences, had disclosed, to the investigating officer concerned, that he had hidden, and/or had concealed the crime weapon, on the Tand built, on the room of his maternal uncle, in village Chhata (UP). However, on the same day, i.e. 4.11.2016, when the accused was taken for making recovery of the crime weapon, he retracted from the earlier statement, to the extent of the place of concealment of the revolver, inasmuch as, he revealed that he had concealed the revolver, in his house in the drawer of TV trolley. The above disclosure statement(s), did ultimately lead to the recovery of the crime weapon, being made, through a recovery memo, as becomes embodied in Ex. PJ. Through Ex. PJ, recovery of revolver, five used cartridges, one live cartridge, and, licence of revolver became effected. Imperatively, since there is no denial of the accused qua the signatures, as carried in the above memos, being false or forged, thereupon, the drawings of the above memos, is to be concluded to become efficaciously proven. Since the convict became connected qua the crime revolver, through a valid licence becoming issued qua therewith, licence whereof, is carried in Ex. P2, thereupon, the defence cannot make any argument, that the place of concealment of the crime weapon, and, thereafter its recovery, rather being false or contrived.

In addition, even the forensic evidence, as comprised in the apposite reports, to which Ex. PG and, Ex. PG/1, are assigned, rather reveal that incriminatory results became drawn, upon the crime weapon W/1, fired cartridges cases marked C/4, and, C/5, besides, qua fired cartridge cases marked, as, C/1 to C/3. Moreover, the holes on jeans pant, as, contained in parcel No. II, also resulted in the ballistic expert making thereons, the hereinafter extracted inculpatory opinion.

The firing mechanism of .32”/7.65 mm revolver marked W.1 was found in working order.

.32'' fired cartridge cases marked C/4 and C/5 and .32” fired bullet marked BC/1 have been fired from .32”/7.65 mm revolver marked W/1 and not from any other firearm even of the same make and calibre because every firearm has got its own individual characteristic marks.

.32” fired cartridge cases marked C/1 to C/3 have been fired from one and the same firearm. However, no definite opinion could be formed regarding linkage of

.32” fired cartridge cases marked C/1 to C/3 in respect of .32”/7.65 mm revolver marked W/1 due to lack of sufficient comparable individual characteristic marks.

Holed on jeans pant contained in parcel No. II have been caused by bullet projectile(s). However, no gun shot residue/hole could be observed on the clothes contained in parcel No. 1.

Report in original from Serology Division is enclosed herewith.

Therefore, the crime weapon, as, also the cartridges concerned, corroborate(s) the ocular version qua the occurrence, besides corroborate(s) the medical evidence, as, became testified by PW-10. Moreover, the above extracted incriminatory results, as made by the ballistic expert concerned, upon, the items, sent for their forensic examination, also do cogently connect, the user of the crime weapon, at the crime site, by the convict.

Be that as it may, in Ex. PG the serologist concerned, upon making examinations, upon Ex. 1a (T-shirt), Ex. 1b (Lower), Ex. 2b (Jeans pant), Ex. 1c (underwear), Ex. 1d(socks), Ex. 1e (swab), Ex. 1f (shoes), and, Ex. 2a (T-shirt), hence made the hereinafter opinion:-

Exhibit-1a (T-shirt), exhibit-1b (Lower), exhibit-2b (Jeans pant) were stained with blood stains.

Blood was detected on exhibit-1c(underwear), exhibit-1d (socks), exhibit-1e(Swab), exhibit-1f (shoes), exhibit-2a(T-shirt).

The result of the above discussion, is that there is no merit in the appeal, and, is hereby dismissed. The impugned verdict, convicting accused-appellant Aayush @ Minki is maintained, and, upheld.

However, the learned counsel for the appellant submits, that since during the pendency of the instant appeal before this Court, a compromise has occurred inter se the victims, and, the convict, compromise whereof becomes appended as Annexure A-1 to CRM-17512-2022. Therefore, he further argues that since the victim, as echoed by the custody certificate, as placed on record, has out of total sentence of imprisonment, as imposed upon him, by the convicting Court, rather undergone 01 year, 11 months, and, 28 days. Therefore, on the basis of judgment, rendered by this Court in CRA-S No. 1785-SB of 2004 titled Joginder Singh and another versus State of Punjab, he contends that the afore spent period in prison, by the convict, be pronounced as the imposed sentence, upon him, and/or that the period undergone by the convict, in prison, be declared to be the imposed sentence, upon, him..

The above argument rather for promoting inter se harmony, and, cordiality, is accepted, and, the sentence of imprisonment, as imposed, upon the convict, by the convicting Court, is modified to the sentence already undergone by him. However, the sentence of fine shall remain intact, and, it is directed, that if it is not already deposited, it be deposited within two weeks, before the learned trial Judge concerned. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation, hence for the filing of an appeal. Release warrants be prepared accordingly.

Records be sent down forthwith.