* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : December 17, 2008
Judgment delivered on : January 06 , 2009
+ Crl. A. No.392/1999
Nasruddin ... Appellant
Through: Neelam Grover, Advocate
Versus
The State ... Respondent
Through: Mr. Amit Sharma, Additional Public
Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. On 27th day of March, 1994 at about 11.00 AM in a Gali in E-52, near Bhagat Singh Park, Opposite Siraspur, Delhi, appellant Nasrudeen and his co-accused Dharmender, (proclaimed offender) had attempted to murder Raju and Surjeet. An old enmity was brewing on account of incident of eve-teasing, in the mind of co-accused Dharmender and he purportedly exhorted appellant/accused Nasruddin by declaring "Maar sale ko" and appellant Nasruddin allegedly fired at Raju and Surjeet from his country made pistol .
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2. Upon receiving of the aforesaid information vide DD No.8- A Sub Inspector Raghuvir Singh from P.S. Samaipur Badli, reached the spot and found that the injured were removed to the hospital and on statement of one Jai Shankar, FIR of this case was registered and during the investigation of this case, the statement of the injured persons was recorded and the appellant was arrested and on his disclosure, the country made pistol used by him in this incident, was got recovered and upon completion of investigation, charge-sheet under Section 307/34 of IPC was filed before the court concerned.
3. Appellant did not plead guilty to the aforesaid charges and had claimed trial. Fourteen witnesses had deposed in this case before the trial court. Out of the two injured, only one injured i.e. Raju (PW-5) had deposed before the trial court. Kaptan Singh (PW-3) is an eye witness and the medical record i.e. the MLCs have been proved by the record clerk from the hospital. Sub Inspector Raghuvir (PW-14) is the Investigating Officer of this case. Plea of appellant/accused in his statement under Section 313 Cr.PC before the trial court was of denial of prosecution case and of false implication, after being brought from Agra Jail. No evidence was led by appellant in his defence before the trial court. After the trial, the appellant has been convicted for commission of an offence under Section 307 of the IPC and vide impugned order dated 19th July, 1999, Crl.a.no.392/99 Page 2 appellant has been sentenced to rigorous imprisonment for five years, which is under challenge in this appeal.
4. Both the sides have addressed their arguments and the evidence on record of this case has been perused.
5. Learned Counsel for the appellant has contended that the recovered countrymade pistol does not stand connected with the bullet which was found lying at the spot. It is argued on behalf of the appellant that the MLCs of the injured have not been duly proved on record and so the conviction of the appellant under Section 307 of the IPC cannot be maintained and even if the prosecution case is taken to be proved, then the conviction of the appellant, at best would be for the offence under Section 324 of the IPC and the appellant has already undergone sentence of two years and eleven months. In support of the above submission, reliance has been placed upon judgment reported in 1994 (29) DRJ 573.
6. Learned Additional Public Prosecutor for the State has supported the impugned judgment and has submitted that the aspect of MLCs not being proved by the Doctor stands determined in a latest decision of this court in the case of Rajesh Kumar @ Raju V. State (Crl.A. No.534/1998), decided on 21st February, 2007. Reliance has also been placed upon judgments reported in 2004(2) Crimes 72 and 2004 (2) JCC 700 to contend that it is not essential that bodily injury Crl.a.no.392/99 Page 3 capable of causing death should be inflicted and conviction under Section 307 of the IPC is justified, if there is an intent coupled with some overt act in execution thereof and it is not correct to acquit an accused for offence under Section 307 of the IPC, merely because the injuries inflicted upon the victim are of simple nature.
7. After having heard both the sides and upon perusal of the evidence on record, I find that appellant/accused is named in the FIR Ex.PW6/B as the person who had fired from countrymade pistol at injured Raju (PW-5). Appellant cannot be heard to say that FIR of this case is not proved because author of the FIR, Jai Shankar (PW-4) has not supported the prosecution case. It is so said because there is evidence of injured Raju (PW-5) which clearly shows that he was fired at by the appellant and he had sustained injuries on his chest and back. It is true that evidence of injured (PW-5) is squarely against the appellant and it absolves co-accused Dharmender, despite cross examination on behalf of the State. However, it is found that the evidence of injured (PW-5) qua the appellant is consistent and reliable and nothing worthwhile emerges from the cross examination of injured (PW-5) to the benefit of the appellant. It is the duty of the Courts to sift grain from the chaff and there cannot be total rejection of the entire evidence. No doubt, injured (PW-5) does not spell out the motive for this incident but that will not wash away, his direct Crl.a.no.392/99 Page 4 evidence against the appellant. The hostile testimony of eye witness Jai Shankar (PW-4) cannot over ride the direct version of injured (PW-5). It is so said because no reason for false implication of appellant by injured (PW-5) is forth coming. The plea of appellant being brought out of Agra Jail and of his being falsely implicated in this case is too farfetched and cannot be accepted on the face of it and for the reason that it has neither been put to the injured (PW-5) or to the Investigating Officer (PW-6).
8. Since I have found the testimony of injured (PW-5) to be consistent and reliable, therefore, it is sufficient to sustain the conviction of the appellant. However, I find that the testimony of the injured (PW-5) receives ample corroboration from the evidence of Kaptan Singh (PW-6) who had seen appellant firing from his countrymade pistol at injured Raju (PW-5) at his chest. Nothing material has come out in the cross examination of this witness by the defence which could come to the rescue of the appellant. All that emerges from the evidence of this witness (PW-3) is that on the day of this incident, he was the Vice President of Kalyan Samiti Bhagat Singh Park, Samaipur Badli, Delhi and accused/appellant was its Secretary. Recovered country made pistol and the bullet are locally made and their connection is hardly of any significance. However, aforesaid recovery sufficiently incriminates the appellant.
Crl.a.no.392/99 Page 5
9. Much emphasis has been laid by the defence on the fact that the MLC Ex.PW7/A of the injured has not been proved by the doctor concerned. It has been proved by Record Clerk (PW-
7) of concerned Hospital, who had identified the handwriting and signatures on this MLC as that of Dr. Sushil Kumar. Therefore, it cannot be said that the MLC Ex.PW7/A of injured Raju is not factually proved on record. All that can be said is that the opinion regarding nature of injury "as dangerous" does not stand duly proved on record. However, it does stand proved that the injury sustained by Raju, as per his MLC Ex.PW7/A, is a bullet injury on the left side chest wall and the bullet was seen in the wound. The opinion regarding the nature of injury in a case like present one, is subjective and has to be proved by the author of the MLC or by a substitute doctor. In any case, non proving of the nature of injury would not scale down the offence from Section 307 to Section 324 of the IPC, for the reason that in judgments reported in 1987 (Supp.) Supreme Court Cases 65; 1993 Crl. L.J. 511; 1994 (29) DRJ 573; 1998 Crl.L.J. 2622 and 1999(2) CC Cases HC 542 relied upon by the appellant, none of these cases is of fire arm injury and thus, the aforesaid decisions are clearly distinguishable.
10. The true import of Section 307 of the IPC has been spelt out by His Lordship Arijit Pasayat in case of Vasant Vithu Crl.a.no.392/99 Page 6 Jadhav V State of Maharashtra (2004 (2) JCC 700) in the following words:-
"To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof"
11. In my considered view, the act of appellant firing from his country made pistol on the chest of injured Raju (PW-5) clearly brings this case within the ambit of Section 307 of the Indian Penal Code. The conviction of the appellant for the offence under Section 307 of the IPC is well deserve and is hereby upheld.
12. As far as the quantum of sentence is concerned, it is noticed by the trial court that the appellant is a social worker and has as many as ten children. The fact of Appellant being a social worker stands corroborated from the evidence of Kaptan Crl.a.no.392/99 Page 7 Singh (PW-5) who has stated that on the day of incident, appellant was Secretary of Kalyan Samiti. As per the nominal roll of the appellant, as on 19th May, 2001, he had already undergone substantive sentence (with remissions) of two years, seven months and two days. His conduct in jail during the aforesaid period was found to be satisfactory. By now, appellant is aged about fifty six years and is said to be ailing. He has already faced the trial and appeal proceedings in this case since the year 1994 and for most of this period, he has remained on bail.
13. In the facts and circumstances of this case, it would be too harsh to now send him behind bars, as I find that the sentence already undergone by the appellant is sufficient to meet the ends of justice. I am inclined to take such a view as I find that this Court in somewhat similar case of Rajesh Kumar @ Raju V. State (Delhi Administration) (Criminal Appeal No.534/1998), decided by brother Shiv Narayan Dhingra, J on 21st February, 2007 has upheld the conviction under Section 307 of the IPC and sentence of RI for two years. Resultantly, in the instant case, while maintaining the conviction for the offence under Section 307 of the IPC, the substantive sentence imposed upon the appellant, stands reduced from RI for five years to two years, seven months and two days i.e. the period already undergone by him. Appellant is on bail. His bail bonds and surety bonds are discharged.
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14. With aforesaid modification, this appeal stands disposed of.
SUNIL GAUR, J
January 06, 2009
dkg
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