Shivender Kumar Verma @ Raj Sinha @ ... vs State (Nct Of Delhi)
2009 Latest Caselaw 1845 Del

*             HIGH COURT OF DELHI : NEW DELHI
          Judgment reserved on : April 23, 2009
          Judgment delivered on: May 04, 2009

+            (1) Crl. Appeal No. 655 of 2006

%     Shivender Kumar Verma @ Raj Sinha @ Sinha
                                        ...  Appellant
               Through: Mr. K.B. Andley, Senior Advocate
                        with Mr. M.L. Yadav, Advocate

                              versus

      State (NCT of Delhi)                ...   Respondent
                Through: Mr. Amit Sharma, Additional
                           Public Prosecutor for State.

+            (2) Crl. Appeal No. 20 of 2009


%     Vijay Pratap Singh Rajput @ Pratap ...      Appellant
                    Through: Mr. Sumeet Verma and Ms.
                             Charu Verma, Advocates.

                              versus

      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. In the afternoon of a day prior to Christmas of the

year 2001, complainant- Gyanender Gopal, first-informant

of FIR No. 3 of 2002, under Section 307/ 34 of the Indian Crl.A.Nos.655/06 & 20/09 Page 1 Penal Code (hereinafter referred to as the „IPC‟) registered

at Police Station Crime and Railway, Sarai Rohilla, Delhi,

was pushed by appellants- Vijay Pratap Singh and

Shivender Prasad, out of "Intercity Express" train, which

was running between Patel Nagar Station and Zakhira Pul,

resulting in complainant sustaining serious injuries and the

motive for this incident is said to be that accused

Shivender Kumar Verma @ Raj Sinha, wanted to avoid

payment of due of Rupees one lac only to the complainant

on account of business transactions and with this motive,

he along with his co-accused, tried to eliminate the

complainant/ first-informant (PW-5). The seriousness of

the injuries sustained by the injured/complainant (PW-5) in

this incident, is evident from the fact that he had to incurr

a huge expenditure of Rupees three lacs fifty thousand on

his medical treatment.

2. These two appeals relate to order of 8th August,

2006, of a court of Sessions, whereby appellants-

Shivender Kumar Verma and Vijay Pratap Singh Rajput

have been convicted and sentenced to undergo rigorous

imprisonment for a period of seven years and to fine of

Rupees two thousand each and in default of payment of

fine, to undergo simple imprisonment for fifteen days, for

committing offence under Section 307/34 of the IPC.

Crl.A.Nos.655/06 & 20/09 Page 2

3. In nutshell, the case of the prosecution is that on 24th

December, 2001, at about 1:00 p.m., ASI Kalyan Singh

(PW-10) while on patrolling duty, received an information

about the complainant (PW-5) lying injured near Nehru

Nagar Railway Line and he took him to Deen Dayal

Upadhayay Hospital. DD No. 10-A was registered and

Head Constable Brij Pal (PW-12) went to Deen Dayal

Hospital from where the injured had been shifted to LNJP

Hosptial. Since the injured (PW-5) was unfit to give any

statement till 5th January, 2002, therefore, FIR was

registered on the basis of the complaint made by the

injured (PW-5), only on 5th January, 2002, and thereafter,

on completion of investigation, Charge Sheet under

Section 307/34 in the court was filed.

4. The trial court proceeded to frame charges against

both the appellants/accused for committing offence under

Section 307/34 of the IPC and since both the

appellants/accused denied the charges framed against

them, the trial ensued.

5. During the course of the trial, prosecution had got

examined eighteen witnesses in this case and the material

evidence is of injured/complainant (PW-5) and crux of his

deposition, is as under:-

Crl.A.Nos.655/06 & 20/09 Page 3 Complainant- Gyaninder Gopal (PW-5) was doing business of supply of garments and appellant/accused Shivender Kumar Verma @ S. Raj Sinha, was one of the distributors in Rajastahan and a sum of Rupees one lac was outstanding towards him for payment. On 23.12.2001, in order to recover his debt from appellant/accused, complainant (PW-5), went to Rajasthan and asked the appellant/accused to satisfy his debts. On being assured by the appellant/accused of making the payment in installments, complainant boarded Inter City Express to come back to Delhi. While sitting in the train, he saw the appellant/accused travelling in the same train but remained seated on a separate seat. At about 12 or 12:30 noon, when he went to the toilet, appellant/accused came there and asked him to supply another consignment and when the train reached near Sarai Rohilla, the appellant/accused pushed him outside the train and he fell out from the running train but somehow managed to catch hold the handle of the door with his right hand and tried to save himself. In the meanwhile, appellant- Vijay Pratap Singh, his co-accused, kicked on his hand, as a result of which complainant fell out on the railway track and received injuries on his head and face.

6. Besides the complainant (PW-5), prosecution got

examined Digamber Chaudhary (PW-3) who first saw

the complainant/injured lying in injured condition,

Head Constable Sangeeta ( PW-4) had recorded DD

No.-10A on receipt of information from the PCR, ASI

Kalyan singh (PW-10) was on patrolling duty, when he

received information of a person lying in injured

condition near the railway track and removed him to

hospital, Doctor Rajiv Gurmukhi (PW-14) had medically

examined the injured on the fateful day itself and

referred him to LNJP Hospital while opining the injuries

to be of serious in nature, Doctor B.N. Mishra (PW-7),

Crl.A.Nos.655/06 & 20/09 Page 4 Medical Officer, Deen Dyal Upadhyay Hospital had

first attended the injured (PW-5) after this incident, Dr.

Anil Karapurkar (PW-18) from Apollo Hospital proved

the medical record of the complainant pertaining to

this incident, Sub-Inspector Charat Lal (PW-17) had

arrested the appellant/ accused Vijay Pratap Singh and

obtained non-bailable warrants against appellant

/accused Shivender Kumar Verma and arrested him.

Head Constable Brij Pal (PW-12) had participated in

the investigation of this case and had gone to DDU

Hospital, LNJP Hospital and Apollo Hospital to record

statement of injured (PW-5) and got the FIR of this

case registered. The investigation of this case has

been conducted by ASI Kalyan Singh (PW-10), Head

Constable Brij Pal Singh (PW-12) and SI Charat Singh

(PW-17) .

7. After the recording of prosecution evidence,

statement of both the appellants/accused under

Section 313 of the Cr.P.C. was recorded by the trial

court, wherein, both the appellants/accused denied

prosecution case put forth against them and stated

that they have been falsely implicated in this case.

However, they did not lead any evidence in their

defence.

Crl.A.Nos.655/06 & 20/09 Page 5

8. Since both these appeals arise of a common

impugned judgment and order, therefore, with the

consent of the parties, they have been heard together

and are being disposed of by this common order.

9. Both the sides have been heard in these appeals

and the evidence on record, has been analysed.

10. Learned Senior Counsel for appellant- Shivender

Kumar Verma, contends that from the evidence on

record, possibility of injured falling from the running

train accidentally cannot be ruled out and this can be

particularly so said because the injured never raised

any alarm when the appellants were allegedly pushing

him out of the train and it is strange that no passenger

in the train had witnessed this incident of complainant

falling from the running train. It is further contended

that the motive put forth for appellants to push the

complainant down from a running train, is to avoid

payment of business dues, but this could not have

been the motive because complainant (PW-5) himself

has stated in his evidence that appellant/accused -

Shivender Kumar Verma had assured the complainant

that he would try to make the payments due, in

installments.

Crl.A.Nos.655/06 & 20/09 Page 6

11. It is asserted by learned Senior Counsel that

motive is a double edged weapon and infact,

complainant had accidently fallen from the running

train and he has falsely implicated the appellant

because the money due was not being paid by the

appellant- Shivender Kumar Verma to the

complainant. Thus, it is contended that the delay of

twelve days in lodging of the FIR in this case, assumes

importance. It is pointed out that it is evident from DD

No. 10A that the information received was that a

person has been injured by a train. Attention of this

court has been also drawn to MLC (Ex. PW7/A) of

injured (PW-5) to point out that the injured had left

DDU Hospital against medical advice and in this view

of the matter, endorsement on the MLC regarding

injured being unfit for statement, cannot be accepted

on the face of it. It is pointed out that the medical

record ( EX. PW17/PX & EX. PW18/A) of Apollo Hospital

does not indicate that the injured was unconscious

when he was admitted in the said hospital. Thus, it is

asserted that there is no justifiable reason for not

recording the statement of injured, till he was

discharged from the hospital. Lastly, it is submitted

Crl.A.Nos.655/06 & 20/09 Page 7 that in view of the aforesaid shortcomings and the

unexplained delay in lodging of the FIR, the

prosecution version becomes doubtful and the trial

has erred in relying upon it. In the alternative, it is

submitted that appellant - Shivender Kumar Verma

has already remained behind bars for more than three

and a half years and has already faced the ordeal in

this case for last more than eight years and he is the

only bread earner of his family and he does not have

any criminal record and therefore, the sentence

imposed upon this appellant deserves to be reduced

to the period already undergone by him.

12. Learned Counsel for appellant - Vijay Pratap

adopts the aforesaid arguments advanced on behalf of

co-accused Shivender Kumar Verma and further

submits that this appellant had no motive and he was

just a servant of co-accused. It has been submitted on

behalf of appellant- Vijay Pratap that he is a poor

person, who may have obeyed the orders of his

employer/ co-accused in a mechanical manner without

appreciating the consequences. In the last, it is

submitted that this appellant has clean antecedents

and has widowed mother, two younger sisters to

support and he is the only earning member of his

Crl.A.Nos.655/06 & 20/09 Page 8 family and therefore, the sentence imposed upon him

deserves to be reduced to the period already

undergone by him, which is of more than four years.

Reliance has been placed upon decision of the Apex

Court reported in 1992 (3) Crimes 630 to contend

that for the offence under Section 307/34 of the IPC,

the sentence awarded was of three years only.

Nothing else has been urged on behalf of these two

appellants.

13. On behalf of the State, learned Additional Public

Prosecutor has not only supported the impugned

judgment and order but has submitted that the

evidence of the injured (PW-5) is consistent and

reliable and the testimony of Mahender Kumar (PW-6)

supports the version of the injured (PW-5) and the

medical evidence corroborates it. Further, it is pointed

out that the injured (PW-5) was not to get down at the

Sarai Rohilla Railway Station and infact, appellant

/accused persons had met him outside the bathroom,

in the railway coach and had told him to get down at

Sarai Rohilla Station so that appellant/accused could

collect the consignment. Thus, the defence plea of

accidental fall of the injured from the train is ruled out

and the Investigating Officer has not been questioned

Crl.A.Nos.655/06 & 20/09 Page 9 by the defence on the delay aspect and therefore, no

benefit accrues to the appellants/accused. Thus, it is

submitted that there is no illegality in the impugned

judgment and the appeals of appellants/accused, are

without any merits and deserve dismissal.

14. The motive aspect first. It is truly said that motive

is a double edged weapon. However, it is required to

be seen as to whether the injured (PW-5) had any

motive to falsely implicate the appellant/accused or

not. Had it been a case of appellant- Shivender Kumar

Verma refusing to pay the outstanding dues to the

complainant/injured, then certainly injured (PW-5) had

the motive to falsely implicate this appellant/ accused,

provided it could be reasonably shown that injured

(PW-5) had accidentally fallen from the running train.

15. There is clinching evidence of injured (PW-5) on

record that appellant Shivender Kumar Verma had

assured complainant ( PW-5) that he would pay the

outstanding dues in installements. This categoric

assertion of the complainant (PW-5) remains unshaken

in cross examination by the defence. Therefore, false

implication of appellants by the complainant /injured

(PW-5) is a remote possibility and it can be safely said

that none else than the appellants had the motive to Crl.A.Nos.655/06 & 20/09 Page 10 eliminate the injured/complainant (PW-5) to avoid

payment of outstanding dues to the tune of Rupees

one lac.

16. Now, I shall deal with the defence plea of this

incident being purely accidental. It emerges from the

evidence of the complainant/ injured ( PW-5) that the

appellants/accused had met him outside the bathroom

in the railway coach and the offer made by the

appellant/accused to the complainant for getting

down at Sarai Rohilla Railway Station, was not

accepted by the complainant because he had told the

appellant/accused that it was a Monday and the

factory is closed on Mondays, in the area, and

therefore, he could not give consignment to them on

that day. It has not been brought out in the cross

examination of the complainant by the defence that

for any other reasons complainant was to deboard the

train at Sarai Rohilla Railway Station. Thus, there was

no occasion for the appellant to have come to the door

of the train coach to deboard providing an occasion for

an accidental fall. It is no body‟s case that

complainant (PW-5) was to get down at Sarai Rohilla

Station or that train slowed down and he sustained

injuries while trying to get down. It was argued before

Crl.A.Nos.655/06 & 20/09 Page 11 trial court by appellants that complainant (PW-5) was

ticket less traveler and on seeing, Ticket Checker , he

jumped from the running train. Infact, complainant

(PW-5) has stated in his evidence that while he was

looking out to see whether Sarai Rohilla Station has

come or not, he was pushed by appellant Shivender

Kumar Verma outside the door of the train coach and

he managed to hang on to the handle of the door, but,

appellant/accused Vijay Pratap gave a kick on his

hand and the complainant (PW-5) fell down from the

running train and had received injuries on his head

and face.

17. I have carefully scrutinized the cross examination

of this star witness (PW-5) conducted by the defence

to find out as to how far the aforesaid narration of the

injured is challenged. Unfortunately, there is no

worthwhile cross examination of the complainant (PW-

5) by the defence regarding the actual incident. All

that has come in the cross examination of the injured

is that he became perturbed when he was pushed out

of the running train by the accused. It is true that the

complainant did not raise an alarm. But, what

inference can be drawn out of it. Different people

react differently in a given situation. Some raise alarm

Crl.A.Nos.655/06 & 20/09 Page 12 and others are dumb founded in a perilous situation

like the present case.

18. On the delay aspect, complainant (PW-5) does

not have to say much. He was discharged from the

hospital on 5th January, 2002, and he states that

thereafter his statement was recorded. It has not

been suggested to the complainant (PW-5) by the

defence, that the period of his hospitalization has

been utilized by him in concocting a story, to falsely

implicate the appellant/accused. It is for the

Investigation Officer to promptly record the statement

of the complainant/injured. Investigating Officer (PW-

12) has stated in his evidence that he has visited

Apollo Hospital and had found that injured (PW-5) was

unfit for giving statement. It has come in the cross-

examination of this witness that he had gone to the

hospital to record the statement of injured (PW-5) on

three or four occasions, but the injured was not fit to

give statement. The Apollo Hospital record does not

indicate that there was any loss of consciousness by

injured (PW-5), but it would not „per se' mean that the

injured was fit to make the statement. In any case,

not much depends upon it, because, it is not shown as

to how the delay in lodging of the FIR has been of any

Crl.A.Nos.655/06 & 20/09 Page 13 benefit to the complainant/injured. As per the medical

record, injured had sustained a severe head injury,

which was life threatening. Thus, it stands sufficiently

proved from the evidence on record that the offence

committed by the appellants is nothing short of

attempted murder.

19. In a criminal case, each verdict is on its own

facts and there can be no precedents. In the decision

reported in 1992 (3) Crimes 630, the sentence

awarded is of three years for the offence under

Section 307 of the IPC, but it cannot be ignored that

this sentence was awarded by the High Court in an

appeal against acquittal. No leniency can be shown to

the appellants/accused, who had left no stone

unturned in ensuring that the complainant/injured

(PW-5) is eliminated, as they had left nothing to

chance, by pushing the complainant (PW-5) out of the

coach of a running train. The sentence awarded to the

appellants is well justified in the facts of this case.

20. The impugned judgment and order on sentence

does not suffer from any illegality or infirmity. Rather

the conviction of the appellants is well borne out of

the evidence on record and there is no scope for

reduction of the sentence awarded to the appellants Crl.A.Nos.655/06 & 20/09 Page 14 by the trial court. Both these appeals are bereft of

merit and are hereby dismissed.

21. Both the appellants are in custody. They be

apprised of the fate of their appeals through the

concerned Jail Superintendent.

22. These two appeals are accordingly disposed of.

Sunil Gaur, J.

May 04, 2009
rs/n




Crl.A.Nos.655/06 & 20/09                                 Page 15