ASHISH KUMAR ALIAS LAMBU Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant lays a challenge to the judgment dated 10th March, 2010 convicting the Appellant and the co-accused for the offences punishable under Sections 394/398/34 IPC and Section 27 Arms Act and order on sentence dated 15th March, 2010 directing him to undergo Rigorous imprisonment for 7 years and fine of Rs. 5,000/- for offences punishable under Section 394/398/34 IPC in default of payment of fine to further undergo Simple Imprisonment for 4 month and 3 years Rigorous Imprisonment and fine of Rs. 2000/- for offences punishable under Section 27 Arms Act.

(2.) Briefly the prosecution case is that on 9th July, 2002 Pawan Kumar & Vipin were coming from the factory situated at B-459, Majlis Park, Adarsh Nagar. When they reached at B-Block, Jahangir Puri, Ashish @ Lamboo and Ranjit came before them from front side and demanded phone from Pawan Kumar. When he resisted to handover the mobile phone to them, they tried to snatch mobile phone from Pawan Kumar. Pawan was dragged near Shauchalaya situated in a gali. He even tried to run away but Appellant Ashish @ Lamboo threatened him saying "Ruk ja nahin to goli maar doonga". Ashish @ Lamboo fired a shot at Pawan Kumar. Co-accused Ranjit took out a kukri (knife) and apprehended Pawan Kumar. Pawan Kumar (victim) received bullet injuries on the right side of the stomach and fell down. S.I. Attar Singh (PW15) along with Ct. Baljeet Singh (PW8) and Ct. Suresh (PW7A) were investigation another case and at about 9.15 PM when they reached at BC Market, Jahangir Puri, they heard a noise coming from the side of Sulabh Shauchalaya. They saw that two boys, Ashish and Ranjit were snatching something from Pawan Kumar. One of the boys that is Ashish @ Lamboo was having a desi katta and Ranjit a kukri. The Police Officials moved towards them. Ashish fired a shot at Pawan Kumar who received bullet injuries. Ashish @ Lamboo was apprehended at the spot along with desi katta whereas co-accused Ranjit managed to escape from the spot. Pawan Kumar was removed to BJRM Hospital. Statement of Ct. Baljeet was recorded on the basis of which FIR No. 437/02 under Section 307/394/397/34 IPC and under Section 25/27 Arms Act was registered. Accused Ashish @ Lamboo was interrogated and arrested. As per the medical opinion, the nature of injuries on the person of victim Pawan Kumar was grievous. Co-accused Ranjit was arrested by Operation Cell, North vide FIR No. 81/2002 under Section 25 Arms Act registered at P.S. Saraswati Vihar, wherein he made a disclosure statement about his involvement in the present case. The TIP proceeding of accused Ranjit were got conducted in Tihar Jail where he was identified by Ct. Baljeet. One kukri was recovered at the instance of Appellant who had led the Police party to Ramlila ground, B-Block Kushal Road Jahangir Puri. Same was seized and sent to CFSL. After completion of investigation charge-sheet was filed against the accused persons. After recording the prosecution evidence and statement of accused persons the learned Trial Court convicted the Appellant and co-accused Ranjit and sentenced them as abovementioned.

(3.) Learned Counsel for the Appellant contends that the judgment convicting the Appellant and orders on sentence is not sustainable in the eyes of law as there are glaring contradictions, discrepancies in testimony of the witnesses. The prosecution has concocted the entire story as the Police officials were present at the spot and did not prevent the crime committed. The earth control, blood stained clothes of injured and the blood stained clothes of Vipin who allegedly took the injured on his shoulder to hospital were not seized. The area despite being a crowded market place no public witness has been examined by the prosecution. There are contradictions in the version given by the three Police officers and the facts as stated by PW2 Pawan Kumar, the injured witness. It is contended that the accused/ Appellant Ashish Kumar in his statement under Section 313 Code of Criminal Procedure has stated that he has been falsely implicated in the present case and that at the time of commission of offence he was a juvenile. This plea of the Appellant has not been considered by the Learned Trial Court and states that the benefit of juvenility has been denied to him. Learned Counsel contends that the Appellant be granted the benefit under Section 7A of the Juvenile Justice (Care and Protection of Children) Act and be released on probation being a juvenile on the date of incident.