RAJESH @ NIKKA Vs. STATE OF HARYANA

JUDGEMENT

(1.) On 26.09.2001, on receipt of a telephonic message, Sub- Inspector Azad Singh accompanied by his colleague police officials, reached Shastri Nagar, Balaji Colony, Dinod Road, Bhiwani and found a number of persons having gathered there. On being inquired, it was informed that the injured had been taken to hospital. Sub-Inspector Azad Singh went to the hospital, obtained the intimation slip (Ruqa) along with MLR from Police Post, General Hospital, Bhiwani and recorded statement of Naresh. In the statement, Naresh revealed that on the previous night, he was sleeping in the varandah of his house while his brother Rajesh was sleeping outside the gate. At about 4.00 a.m., he was awakened by noise and saw that an unidentified person had entered the room. He raised alarm. The said person was armed with a knife and attacked him. He received injuries on his left arm. On hearing commotion, Rajesh also woke up along with Jagdish and Virender, the neighbourers and they came to the spot. When they tried to apprehend, the culprit took out a pistol from his trousers and fired shot at them. Jagdish and Virender also sustained gun shot injuries. However, culprit was over-powered by them and was handed over to the police. While being interrogated, he disclosed his name as Rajesh @ Nikka. Pistol and knife were taken in police possession. The matter was investigated into and a report under Section 173(2) of the Code of Criminal Procedure (for short the Code) was filed before the jurisdictional magistrate. Having found prima facie commission of an offence punishable under Section 459/34 IPC and Section 25 of the Arms Act to be involved in the matter, the trial magistrate committed the case to the court of Session as the offence of Section 459 IPC is exclusively triable by the court of Session. Having found a prima facie case, the appellant along with Inder was charged for the offence under Section 459/34 IPC and Section 25 of the Arms Act.

(2.) During the course of trial, prosecution examined Sub-Inspector Mohinder Singh as PW1, Kanwarpal, draftsman as PW2, HC-Ram Kishan as PW3, UGC Ganga Ram as PW4, Dr.K.L.Bawa as PW5, Bhisham Chander Reader to D.M. as PW6, Naresh Kumar as PW7, Jagdish Singh as PW8, Dr.Rajinder Gera as PW9, Sub Inspector Ajayab Singh as PW10 besides above witnesses various documents were placed on record. On conclusion of evidence of the prosecution, learned trial Court examined the accused under Section 313 of the Code by putting to them all the incriminating circumstances brought by the prosecution on record so as to enable them to put forth their point of view. The accused denied all the circumstances as incorrect and when called upon to enter their defence they examined Dr.R.S.Punia, G.H.Bhiwani as DW1 in their defence evidence.

(3.) On conclusion of evidence, learned trial court afforded the prosecution and the defence an opportunity of hearing, appraised the material available on record and came to the conclusion that the prosecution was not able to prove its case as regards accused Inder and accordingly acquitted him but it recorded a definite finding that prosecution had established its case against the appellant-Rajesh @ Nikka for the offences punishable under Section 459 IPC and under Section 25 of the Arms Act beyond reasonable doubt and accordingly, held him guilty, convicted him under the aforesaid sections and awarded 10 years rigorous imprisonment and fine of Rs.500/- under Section 459, IPC, and in default of payemnt of fine to further undergo rigorous imprisonment for six months and RI for 01 year and fine of Rs.200/- under Section 25 of the Arms Act; in default of payment of fine, the appellant was ordered to undergo simple imprisonment for 03 months as recorded vide judgment and order dated 08.05.2003. The appellant has brought this appeal challenging the above said judgment of conviction and order of sentence. I have heard learned counsel for the appellant and learned counsel representing the respondent-State.