Vijay Kumar vs State
2009 Latest Caselaw 4642 Del

*	 IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI





%                         Date of Decision : November 13, 2009





+			CRL.APPEAL No.701/2005



VIJAY KUMAR 					...........Appellant 

		Through:	Mr.B.K.Kapoor, Advocate.	 



Versus



STATE						...........Respondent

		Through: Mr.M.N.Dudeja, A.P.P.



CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

	HON'BLE MR. JUSTICE SURESH KAIT



	Whether the Reporters of local papers may be            allowed to see the judgment?



	To be referred to the Reporter or not?	 



	Whether the judgment should be reported in the       

Digest?						 





PRADEEP NANDRAJOG, J. (Oral)

Vijay Kumar and his co-accused Sunil Kumar were sent for trial pertaining to the death of Pappu and a grievous assault on Suleman PW-1; both were charged for the offence punishable under Section 302/34 IPC pertaining to the death of Pappu as also for the offence punishable under Section 307/34 IPC for the life threatening assault on Suleman.

The incident in question took place at around 8:30 PM on 25.3.2002, when, as per the prosecution appellant Vijay and Sunil accompanied by two more persons; namely, Surender and Shobha (both being proclaimed offenders) entered the jhuggi of Pappu near Phatak No.7, Shalimar Bagh, Delhi, at which time Suleman and Pappu were watching television. Sunil caught hold of Suleman and Surender shot at him. Pappu tried to intervene and save him at which Shobha fired at Pappu and appellant Vijay struck a knife blow on him. Thereafter, all the accused fled. The motive for the crime was that Suleman had objected to the appellants teasing one Vandana and when the appellants persisted, had slapped Sunil about three or four days prior to 25.3.2002 and on said account Sunil wanting to take revenge.

Vide impugned judgment and order dated 16.11.2004 Sunil has been acquitted of the charge of murder but has been convicted for the offence punishable under Section 307/34 IPC and has been sentenced to undergo imprisonment for five years. The appellant has been convicted on both counts and pertaining to the offence of murder has been sentenced to undergo imprisonment for life. For the offence of attempt to murder, the appellant has been sentenced to undergo imprisonment for five years. It appears that Sunil had already undergone the sentence by the time the judgment was pronounced and hence has not filed any appeal against the impugned decision; a fact which has been got verified by us from the Registry before we commenced hearing of the appeal.

In para 15 of the impugned decision, the learned Trial Judge has summarized as to what has been proved by the prosecution. It has been held:-

"(i) there was enmity between accused Sunil and Vijay on the one hand and PW-1 Suleman on the other, as PW-1 had slapped them 3-4 days prior to the date of incident as accused had teased Vandana, niece of PW-1 Suleman.

(ii) the presence of accused Sunil and Vijay along with their associates namely Surender (PO) and Shobha (PO) on the spot at the time of incident.

(iii) both PW-1 Suleman and deceased Pappu received inquiries at the same time at the spot.

(iv) the role of accused Vijay, accused Sunil and their associates and corresponding injuries to victims, per medical record."

(NB: It is apparent that the word 'inquiries' in sub para (iii) above is a typographic error and the correct word should be 'injuries'.)

Needless to state the fate of the instant appeal would depend upon the credibility of the injured Suleman, examined as PW-1.

Before noting the testimony of Suleman it may be noted that information pertaining to the incident of stabbing was received at the local police station at 9:06 AM when DD Entry No.23A Ex.PW-11/B was recorded and pursuant thereto SI Tej Pal Singh PW-11 accompanied by Const.Lalit PW-6 proceeded to the place of occurrence and there from to BJRM Hospital as he was informed that two persons who were injured had been removed to said hospital. At the hospital he learnt that Suleman, one out of the two persons who was brought injured, had been referred to Sushruta Trauma Centre and the other injured had been taken to GTB Hospital and there from to the Trauma Centre.

SI Tej Pal obtained a copy of the MLC Ex.PW-19/A of Suleman as also a copy of the MLC Ex.PW-10/A of Pappu and got registered the FIR for an offence punishable under Section 307/34 IPC. He did so by making an endorsement Ex.PW-11/A beneath the copy of DD No.23A.

He could not record the statement of Pappu or Suleman because neither was fit for making a statement. Returning to the spot he lifted earth control and blood stained earth from the spot as also blood stained bed sheets from within the jhuggi. He then returned to the hospital and took into possession the blood stained clothes of Suleman and Pappu.

Pappu died on 26.3.2002 i.e. the next day before he could make any statement. Said information was received at the police station and entered vide DD No.7, Ex.PW-11/C. Immediately, the offence pertaining to murder was added in the FIR. SI Tej Pal Singh went to the hospital and took possession of the dead body of Pappu and prepared the inquest papers Ex.PW-11/D1 to D-4 and Ex.PW-4/A and sent the body for post-mortem. Thereafter, the investigation was handed over to Inspector B.R.Mann PW-13.

Dr.R.K.Punia at BJRM Hospital conducted the post-mortem on the body of Pappu on 26.3.2002 and recorded five injuries other than surgical wounds on the body of the deceased, three being incised wounds on the back of middle of left forearm; front of left side chest and below left knee and two being bullet wounds over front right wrist joint and right side chest abdominal area. The cause of death opined was shock due to haemorrhage, due to the bullet injury on the right side chest abdominal area as the liver had got damaged.

Suleman gained consciousness only on 27.3.2002 and on receipt of said information Inspector B.R.Mann PW-13 went to the hospital where the Senior Resident Surgeon made an endorsement on the MLC Ex.PW-19/A at 2:10 PM certifying that Suleman was fit for statement. Inspector B.R.Mann recorded the statement of Suleman under Section 161 Cr.P.C. as per which statement, the appellant as also Surender and Shobha had attacked Suleman and Pappu.

Surender and Shobha could not be apprehended and were declared proclaimed offenders. Sunil was arrested on 2.4.2002 and pursuant to a disclosure statement got recovered a knife Ex.P-1 stated to be the weapon of offence.

Further investigation was taken over by Inspector Jogender Kumar PW-18. On 12.4.2002 he received information that appellant Vijay Kumar had surrendered in Court. Inspector Jogender Kumar moved the necessary application and took on remand the custody of Vijay. Nothing incriminating was recovered from Vijay.

It may be noted that as per the MLC Ex.PW-19/A of Suleman he was found to be having an entry and an exit firearm wound; entry being in the abdominal area and the exit through the upper part of the right gluteal region 12 cm lateral to the right anterior iliac spine.

Suleman appeared as PW-1 and pertaining to the incident deposed as under:-

"Previously I was residing in H-Block, Jahangir Puri, Delhi. A girl named Vandana was residing in H-Block, Jahangir Puri, who used to call me Chacha. I also used to treat her my niece. In the month of March around 21st or 22nd in the year 2002 both the accused present in the court had teased Vandana. I tried to make both the accused understand. I also gave two/three slaps on accused Sunil. Sunil had threatened me with dire consequences. The result of which will be known to me after 3/4 days.

On 25.3.2002 I had gone to the jhuggi of Pappu near Phatak No.7, Shalimar Bagh, Delhi. Pappu was a friend of mine. We were watching T.V. inside the jhuggi. It was about 8:30 PM. Four persons came there including the two accused present in court today. The other two were Surender and Shobha. Both the accused present in the Court today hurled abuses to me. both the accused were having knives in their hands whereas the other two, namely, Surender and Sobha, were having Desi Kattas in their hands. Accused Sunil caught hold of me from behind. Sunil asked Surender to shoot and me. Surender fired at me. I received a gun shot on my right stomach. It pierced my stomach near the navel and exited from the hip. As Pappu tried to intervene Sobha fired at him. Accused Vijay gave knife blow on her person. As Surender was trying to take a second aim at me I gave him a push and ran in the second gali in order to make my escape. I gave a ring to the police at No.100 and then lost my consciousness. I was removed to a hospital where I regained consciousness. Later on I learnt that Pappu had died because of the injuries suffered by him. The clothes I was wearing had been stained with blood. On 27.3.2002 I regained my consciousness and I came to know that Pappu had expired. My statement was recorded on 27.3.2002 itself."

Shri B.K.Kapoor, learned counsel for the appellant has very fairly conceded that nothing has been brought out in the cross-examination of Suleman wherefrom his credibility could be impeached. But, submits learned counsel that not having examined Vandana, it cannot be said that the motive has been proved. Further, learned counsel urges that Suleman has a criminal background as he had spent 1½ months in jail pertaining to a fight which he had with somebody. Under the circumstances, urges the counsel non-examination of an independent public person is fatal to the prosecution. Counsel highlights that the place of occurrence is a jhuggi in a slum cluster and the police ought to have examined somebody from the slum cluster. Thus, counsel urges that the benefit of doubt should be given to the appellant.

Merely, because a witness comes from a humble background or is involved in some petty crime, would not make the testimony of such person susceptible on mere said ground. Admittedly, Suleman had received life threatening injuries due to gun-shot wound and could not regain consciousness for over 36 hours. The testimony of an injured eye-witness is always treated on a higher footing than a mere eye-witness for the reason his presence at the place where the crime was committed is proved by the factum of the injury itself; that he is injured leads to the conclusion that somebody is the cause of the injury (other than cases of accidental falling or self-inflicted injuries) and one can presume that the injured would not let go the real culprit and falsely implicate somebody else. (See the decisions reported as AIR 2008 SC 3259 Dinesh Kumar vs. State of Rajasthan, 2007 (8) SCALE 649 Sukhdev vs. State of Punjab, AIR 1994 SC 1624 Brijpal Singh & Ors. vs. State of U.P. & Ors. and AIR 1985 SC 386 Mer Dhana Sida vs. State of Gujarat.)

Vandana is not an eye-witness as per the testimony of Suleman and we see no reason why she should have been examined. We see no reason to hold that merely because Vandana was not examined, the motive for the crime has not been proved. The same has been proved through the testimony of Suleman. That apart, when there is direct eye-witness account pertaining to a crime it hardly matters whether motive is proved or not.

The shooting and the stabbing took place inside a jhuggi at around 8:30 PM. The crime has not been committed in a public street and thus we see no scope for the prosecution to have produced public witnesses with respect to the commission of the crime. That apart, the apathy of public to join in police investigation is documented in numerous judicial decisions and we do not intend to make a catalog thereof.

Notwithstanding concession given by learned counsel for the appellant as afore-noted, we have perused the cross-examination of Suleman and note that vis-à-vis his statement under Section 161 Cr.P.C. the only improvement made by him pertain to it not being recorded there that Sunil had a knife in his hand. We further note that Suleman has successfully explained the same when he deposed on being further cross-examined that the incident occurred very fast. It has to be noted that Suleman's statement under Section 161 Cr.P.C. was recorded soon after he recovered consciousness in the hospital. He had regained consciousness after 41 hours of the incident. Due to the gunshot injury received by Suleman he was surgically operated upon and for which sedatives and painkillers would have been administered to him. Under the circumstances Suleman omitting to state something before the IO is acceptable to us. What is relevant to be noted is that qua the role of the appellant pertaining to the death of Pappu he stated that Vijay inflicted a knife blow on Pappu.

From the testimony of Suleman it is apparent that the four accused were targeting Suleman and Pappu got injured when he tried to intervene. It is apparent that the common intention of all was to murder Suleman. The learned Trial Judge has rightly held that there was no common intention to murder Pappu and that pertaining to the murder of Pappu the intention which sprung at the spur of the moment has to be gathered from the acts of such accused who participated in the assault on Pappu.

We find no merit in the appeal which is dismissed.

(PRADEEP NANDRAJOG)

JUDGE

(SURESH KAIT)

JUDGE

NOVEMBER 13, 2009

Dharmender