Nasruddin vs The State
2009 Latest Caselaw 6 Del

*             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 .

Crl.a.no.392/99 Page 1

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.

Crl.a.no.392/99 Page 8

14. With aforesaid modification, this appeal stands disposed

of.

                                           SUNIL GAUR, J
January 06, 2009
dkg




Crl.a.no.392/99                                           Page 9