Delhi High Court

Mohd. Furkan vs State on 7 December, 2010

Author: Ajit Bharihoke

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: August   05, 2010
                              Judgment delivered on:December 07, 2010

+       CRIMINAL APPEAL NO.27/2005

        MOHD. FURKAN                          ....APPELLANT
                   Through: Mr.Ajay Mehrotra with Mr.S.P.Singh and
                            Mr.K.K.Tiwari, Advocates.

                        Versus

        THE STATE OF N.C.T. OF DELHI           .....RESPONDENT
                     Through:Mr.Pawan K.Bahl, APP.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.      To be referred to the Reporter or not ?
3.      Whether the judgment should be
        reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

10.11.2004 in case FIR No.142/2003 P.S. Kalkaji as also the consequent

order on sentence dated 18.11.2004 whereby the appellant has been

convicted for the offences punishable under Sections 398 and 307 IPC as

well as under Section 27 of the Arms Act and sentenced accordingly.

2. Briefly stated, case of the prosecution is that on the night

intervening 15th and 16th February 2003 at 1.45 A.M., lady Constable

Rajbala of PCR informed Police Post Govind Puri that a person has been

shot near liquor vend Govind Puri near the roundabout. Information was

recorded in daily diary maintained at Police Post Govind Puri dated 15th

/16th February 2003(Ex.PW-5/A). Copy of the DD report was forwarded to

ASI Attar Singh through Constable Rajpal for necessary action, who

reached at the spot. In the meanwhile, on the same night at about 1.48

A.M. S.I. Girjesh Singh, In-charge Police Post Govind Puri, on receipt of this

information left police post for the spot of occurrence along with

Constable Mahavir after making departure entry No.39 in daily diary

maintained at the police post. S.I. Girjesh Singh and the Constable

reached at the place of occurrence near Punjabi Park camp, B Block,

Transit Camp, Govind Puri where a PCR van was already present. He was

informed that injured had already been removed to AIIMS by another PCR

VAN No.E-35. One scooter No.DL 3S-AB 0533 was there at the spot of

occurrence. S.I. Girjesh then went to AIIMS along with ASI Attar Singh and

Constable Mahabir Singh and collected the MLC of the injured

complainant Mahesh Nand, who was certified fit for statement. S.I.

Girjesh recorded the statement of injured Mahesh Nand who stated that

on the fateful night while he was returning home, his scooter No. DL 3S-

AB 0533 ran out of petrol at Anand Mai Marg near the roundabout of

Okhla, Phase-I and he proceeded towards his house on foot. When he

reached near round about near B Block, Punjabi Camp at around 1.00

A.M., one young boy aged 20-25 years struck him on the back of his head

with the butt of a country made pistol (katta). As a result, his grip on the

scooter loosened and the scooter fell down. Thereafter, said boy asked

him to hand over his belongings. Complainant Mahesh Nand claimed that

instead of handing over his belongings to that boy, he grappled with him

and in the process, said boy fired a bullet from "katta" which hit him on

his right hand after grazing his abdomen. Thereafter, said young boy ran

away towards Okhla Phase-I. Complainant claimed in his statement that

he was able to see the face of said boy in the street light and was in

position to identify him.

3. S.I.Girjesh Singh appended his endorsement Ex.PW-10/C on the

aforesaid statement of the complainant Ex.PW-1/A and sent it to the

police station through constable Mahavir Singh for the registration of the

case. On the basis of the said rukka, FIR No.142/2003 was registered at

police station on 16th February 2003 at 3.50 a.m.

4. Clothes of the complainant and the bullet retrieved therefrom were

sealed by the seal of AIIMS and the sealed packet along with sample seal

was handed over to the I.O. which were seized vide memo Ex.PW-10/D.

Scooter found at the spot was seized vide memo Ex.PW-3/A. I.O. also

prepared rough site plan of the place of occurrence with the help of the

complainant.

5. On 10th March 2003, the appellant was arrested in case FIR

No.215/2003 pertaining to P.S. Kalkaji. His police custody remand in this

case was obtained. During interrogation, the appellant made a disclosure

statement regarding the incident and stated that he could get recovered

the "katta" used in the occurrence and pursuant to the said disclosure

statement, he led the police party to the bushes near Okhla roundabout

and from there he got recovered the "katta" and a bullet. On checking,

empty shell was found stuck in the barrel of the "katta". Investigating

Officer measured the "katta", prepared its sketch as well as the sketch of

live cartridge and the empty shell and took them into possession vide

seizure memo Ex.PW-4/C. The sketch of "katta", live bullet and empty

cartridge is Ex.PW-4/B. An application for conducting Test Identification

Parade (T.I.P.) to fix the identity of the appellant was moved on 13th March

2003. The appellant, however, declined to participate in T.I.P. on the

ground that he had already been shown to various persons before

applying for T.I.P. I.O. also sent the case property to the CFSL and

obtained the report of ballistic expert Ex.PW-10/E. On completion of

investigation, the appellant was charge sheeted and send for trial.

6. Learned Additional Sessions Judge charged the appellant for the

offences punishable under Sections 307 and 398 IPC as also for the

offence under Section 27 of the Arms Act. The appellant pleaded not

guilty to the charge and claimed to be tried.

7. In order to bring home the guilt of the appellant, prosecution has

examined 14 witnesses. PW-1 Mahesh Nand is the star witness of the

prosecution. He has testified that on 16th February 2003 while he was

returning on his scooter from Sangam Vihar, his scooter ran out of petrol.

Since the nearby petrol pump was closed, he decided to drag his scooter

to his house at Kalkaji. While he was going on foot and reached near

roundabout of Okhla, Phase-I, the appellant came from behind and hit him

on his head with the butt of a pistol. Thereafter, the appellant faced him

and asked him to hand over whatever belongings he was carrying. The

complainant claimed that instead of handing over his belongings, he

grappled with the appellant and the appellant after wriggling out of his

grip, fired a pistol shot at him. The bullet hit him on his hand and

abdomen. Thereafter, the appellant ran away. He thereafter dialed

telephone No.100 from his mobile phone and a PCR van came and took

him to the hospital. He claimed that his statement (Ex.PW-1/A) was

recorded by the police at the hospital. He identified his shirt (Ex.P-1),

sweater (Ex.P-2) and T-Shirt (Ex.P-3) with bullet holes. PW-9 Dr.Sunil

Kumar has proved the MLC of the complainant Ex.PW-9/A prepared by

Dr.Pareenita by way of secondary evidence by identifying her signatures

and handwriting on the same.

8. Statement of the accused under Section 313 Cr.P.C. was recorded

wherein he has denied the prosecution version and claimed that he has

been falsely implicated in this case. As regards T.I.P., he claimed that he

had insisted for holding T.I.P. but his request was declined. Though the

appellant expressed his wish to lead evidence in his defence but no

witness was produced by him.

9. The learned Additional Sessions Judge, on consideration of the

evidence, found the appellant guilty on all the counts and convicted and

sentenced him for the offences under Sections 398 and 307 IPC and

Section 27 of the Arms Act.

10. Learned Mr. Ajay Mehrotra, Advocate appearing for the appellant

submitted that the appellant is innocent and he has been falsely

implicated by the police to solve a blind case. He argued that the case of

the prosecution rests mainly only on the testimony of the complainant

Mahesh Nand (PW-1) who is not a reliable witness for various reasons.

Dilating on the argument, learned counsel submitted that as per the

version of the prosecution detailed in complaint Ex.PW-1/A and the

statement of the complainant, he was initially hit by the appellant on the

back of his head with the butt of a pistol. This version of the complainant

stands belied by his MLC Ex.PW-9/A wherein there is no mention of any

injury found on the back of head of the complainant. Secondly, it is

contended that as per the case of prosecution, the bullet was fired by the

appellant from an 8 mm pistol and the said bullet was found entangled

with the sweater of the complainant, which is an impossibility. From this,

learned counsel for the appellant has urged that it is not safe to base

conviction of the appellant on the unreliable testimony of the

complainant.

11. I am not convinced with the submissions made by learned counsel

for the appellant. Complainant Mahesh Nand in his testimony in the court

has fully supported the prosecution story. His version finds corroboration

from the MLC Ex.PW-9/A which reveals that he was taken to the hospital

by Head Constable Rameshwar of PCR at 1.57 A.M. on 16th February 2003

and on examination, the doctor found bullet wound on the upper

abdomen as well as right arm of the complainant. This circumstance is

sufficient to establish that the incident in question did happen in which

the complainant sustained injury. Now the only question for

determination is about the identity of the appellant, who was not caught

at the spot. In this regard, PW-1 Mahesh Nand has identified the

appellant as the culprit who shot him with a "katta". As per the testimony

of PW-10 S.I. Girjesh Singh, an application for holding T.I.P. to fix the

identity of the appellant was moved before the Magistrate but the

appellant refused to participate in the T.I.P. PW-14 Ms.Kamini Lau, the

then Metropolitan Magistrate, Patiala House Courts conducted T.I.P.

proceedings. She has categorically stated that the appellant Mohd.

Furkan was produced before her along with the application requesting for

holding of T.I.P. marked to her by the link Magistrate. She explained the

purpose of T.I.P. and consequence of refusal to participate in T.I.P. to the

appellant but the appellant refused to participate in the T.I.P. and gave

his explanation in the form of a statement. She has proved the T.I.P.

proceedings as Ex.PW-14/A. On perusal of T.I.P. proceedings, it transpires

that despite of warning, the appellant refused to participate in T.I.P. on

the ground that he had been shown to various persons. The appellant,

when examined under Section 313 Cr.P.C. pertaining to his refusal to

participate in T.I.P., came out with an entirely contradictory explanation

by stating that he insisted for holding of T.I.P. but his request was

declined despite of the fact that he was willing to participate in T.I.P. This

circumstance clearly shows that the explanation given by the appellant

before M.M. for refusing to participate in T.I.P. was incorrect. Thus, in my

view, learned trial Judge was right in drawing adverse presumption

against the appellant on account of his refusal to participate in T.I.P. and

he was right in accepting the testimony of the complainant Mahesh Nand

regarding the identity of the appellant as the culprit.

12. Next submission on behalf of the appellant is that the prosecution

story is highly improbable. Learned counsel for the appellant contended

that as per the case of prosecution, the bullet shot from the "katta" was

found entangled with the sweater of the complainant, which is an

impossibility, particularly when the shot was fired from a close range.

Learned APP has refuted the contention by stating that it is based upon

surmises and conjectures and that there can be many reasons for the

bullet getting entangled with the sweater of the complainant.

13. As per the MLC, the bullet grazed against the abdomen of the

complainant and stuck on his right arm. Thus, a possibility cannot be

ruled out that after hitting the bone of right arm of the complainant, the

bullet might have got deflected and got entangled with the sweater of the

complainant. Therefore, this circumstance cannot be taken as a reason to

suspect the otherwise reliable testimony of the complainant.

14. Learned counsel for the appellant further submitted that as per the

case of prosecution, the appellant shot only one bullet which resulted in

injury on abdomen and right arm of the complainant and thereafter he

ran away. From the aforesaid conduct, it cannot be inferred that there

was any intention on the part of the appellant to commit murder of the

complainant. Thus, he has contended that conviction of the appellant

under Section 307 IPC is unwarranted.

Section 307 IPC reads thus:-

"Section 307. Attempt to murder

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine, and is hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."

15. On bare reading of the above provision, it is apparent that essential

ingredients of Section 307 IPC are

(i) an intention of or knowledge relating to commission of murder;

(ii) The doing of an act towards it.

16. As per the testimony of the complainant, it stands established that

in an attempt to rob the complainant, the appellant shot him with a

"katta" from a close range. The act of the appellant in firing a shot on the

complainant was so dangerous that if the bullet had struck against some

vital part of the body, the complainant would have died. Therefore, I find

nothing wrong in the learned trial Judge inferring that the appellant had

knowledge that the act committed by him was so dangerous that it could

have caused death of the complainant. As such, I find no fault in the