Saleem @ Nakta vs State (Govt. Of Nct) Delhi
2010 Latest Caselaw 3526 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment delivered on: July 29, 2010

+      CRIMINAL APPEAL NO.393/2005

       SALEEM @ NAKTA                             ....APPELLANT
               Through:      Mr. Rajesh Mahajan, Advocate with
                             Ms. Satsheel Sheokand, Advocate

                       Versus

       STATE(GOVT. OF NCT) 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.(ORAL)

1. Saleem @ Nakta, the appellant herein, has preferred this appeal

against his conviction for the offences punishable under Section 307

IPC and Section 387 IPC read with Section 511 IPC as also under

Section 27 of the Arms Act in Sessions Case No. 34/04, FIR No. 60/04,

P.S. Seelampur vide impugned judgment dated 19th February, 2005

and the consequent order on sentenced dated 21st February, 2005.

2. Briefly stated, case of the prosecution is that on 06th February,

2004, on the receipt of information regarding admission of injured

complainant Swalin with a stab injury at GTB Hospital vide DD NO. 11A,

P.S. Seelampur, ASI Bhim Singh (hereinafter referred to as

'Investigating Officer') along with the Constable Ram Rattan reached

GTB Hospital where he obtained MLC of injured Swalin, who was

declared fit for statement by the doctor concerned. Investigating

Officer recorded his statement wherein injured Swalin stated that on

06th February, 2004 at about 01:00 p.m., while he was going home,

appellant Saleem @ Nakta met him in a 'gali' near his house and

demanded Rs.1000/-. When he told that he was having no money, the

appellant started abusing him and threatened to kill him. He thereafter

took out a knife from his pant and inflicted a knife blow on portion of

right hand side of his chest and ran away.

3. ASI Bhim Singh, after obtaining signatures of the complainant on

his statement, sent it to the police station along with his endorsement

through Constable Ram Rattan for the registration of the FIR. During

the course of investigation, the appellant was arrested. On

interrogation, he made a disclosure statement which led to the

recovery of the weapon of offence i.e. the knife. Statements of

witnesses were recorded and on completion of the investigation,

charge sheet against the appellant was filed in the Court.

4. The learned Additional Sessions Judge, vide order dated 22nd July,

2004 framed charges under Sections 307/387 IPC and Section 27 and

25 of the Arms Act against the appellant, who pleaded not guilty to the

charge and claimed to be tried.

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

examined 9 witnesses in all.

6. The appellant, when examined, under Section 313 Cr.P.C. denied

the prosecution case. He claimed that he is innocent and has been

falsely implicated in the case on suspicion. He, however, did not opt to

lead evidence in his defence.

7. The case of the prosecution hinges mainly upon the testimony of

injured Swalin (PW-3) and his brother Mobin (PW-4). Before adverting

to the submissions made on behalf of the appellant, it would be useful

to have a look upon their testimonies.

8. PW-3 Swalin (injured) has stated in his testimony that on

06.02.2004 at around 1.00 p.m. when he was going to his house, the

appellant met him in the "gali" and demanded Rs.1000/- from him.

When he told the appellant that he was not having money, the

appellant started abusing him and suddenly took out a knife from the

pocket of his pant and inflicted a knife blow on the right side of his

chest, as a result of which, he sustained injury and became

unconscious. When he gained consciousness, he found himself in the

hospital, where his statement Ex.PW3/A was recorded by ASI Bhim

Singh.

9. PW-4 Mobin has testified that on 06.02.2004, on hearing the

noise, he came outside his house located at the first floor. He was told

by the neighbours that the appellant Saleem @ Nakta had inflicted a

knife injury on the chest of his brother. Thereafter, he took his brother

to GTB Hospital. From the hospital, he came to the spot along with the

police officials and the investigating officer prepared the site plan

Ex.PW-4/A with his assistance. In the cross-examination however, he

could not tell the name of the person who told him that appellant

Saleem alias Nakta had inflicted injury on the person of PW3 Swalin. He

stated in his cross examination that on the inquiry made by the

examining doctor, he had told him the name of the assailant who had

inflicted knife injury on the chest of his brother.

10. Learned Shri Rajesh Mahajan, Advocate appearing for the

appellant has submitted that the case of the prosecution hinges mainly

on the testimony of the complainant i.e. PW3 Swalin and his brother

Mobin PW4 who claims to have reached at the spot immediately after

the occurrence and took the injured Swalin to the hospital. Learned

counsel contended that case of the prosecution is that the appellant

was well-known to the victim, despite of that his name does not find

mention as an assailant in the MLC Ex.PW2/A although as per the MLC,

PW3 Swalin was conscious and oriented when examined by the Doctor.

Learned counsel submitted that even in DD No.11A, P.S. Seelampur

(Ex.PW6/A), which according to the prosecution set the investigating

machinery into motion, the name of the appellant as assailant is not

mentioned. From this learned counsel has urged this Court to infer

that PW3 and PW4 are not telling the truth and that PW3 was stabbed

by someone else otherwise there is no reason that PW3 Swalin would

not have disclosed the name of the appellant as assailant to the Doctor

at the time of preparation of his MLC.

11. I am not convinced with the argument. It is true that the injured

Swalin was conscious and oriented at the time of preparation of the

MLC Ex.PW2/A. It is also true that the name of the appellant is not

mentioned as the assailant in the history of injury recorded by the

Doctor concerned in the MLC Ex.PW.2/A. This, however, cannot be

taken as a circumstance to disbelieve the eye witness account given by

the injured Swalin or the testimony of his brother PW4 Mobin. It is

pertinent to note that PW4 Mobin stated in his cross-examination that

he disclosed the name of the appellant as the assailant to the Doctor

who prepared the MLC Ex.PW2/A. While assessing the contention of

learned counsel for the appellant, we cannot lose sight of the fact that

PW3 Swalin had sustained a stab injury on the right side of his chest.

Therefore, when he reached at the hospital, the main concern of the

attending Doctor was to save his life and if in that hurry the Doctor

concerned failed to record the name of the assailant in the history

recorded in the MLC, it cannot be taken as a circumstance to doubt the

version of the injured Swalin. In my aforesaid view, I draw support

from the judgment of the Supreme Court in the matter of Pattipati

Venkaiah V. State of A.P., (1984) 4 SCC 80. Further, perusal of DD

No.11A, P.S. Seelam Pur (Ex.PW6/A) reveals that this daily diary entry

was recorded at the Police Station on the basis of information

conveyed by Duty Constable Mukesh from GTB Hospital regarding the

admission of injured Swalin in injured condition at GTB Hospital.

Obviously, Duty Constable Mukesh who is the informant of this DD

report was not the eye witness of the occurrence. Therefore, there was

no occasion for him to mention the name of the assailant which was

not known to him. As per the FIR which is based upon the complaint

statement of Swalin Ex.PW3/A, the incident took place at 1:00 pm. As

per the MLC Ex.PW2/A and DD No.11A (Ex.PW6/A), the injured was

admitted in the Casualty of GTB Hospital by his brother Mobin

somewhere around 1:25/1:30 pm. Rukka Ex.PW9/A was sent to the

Police Station at 3:30 pm and the FIR Ex.PW5/A of this case was

registered at 3:55 pm. From this, it is apparent that the FIR pertaining

to the incident was registered promptly within three hours from the

incident on the basis of statement Ex.PW3/A of injured Swalin who

specifically named the appellant as the person who had inflicted knife

injury on his person. The fact that the FIR has been registered

promptly rules out any possibility of false implication of the appellant

on an afterthought.

12. Learned counsel for the appellant has drawn my attention to the

disclosure statement of the appellant Ex.PW7/B and the recovery

memo pertaining to the weapon of offence i.e. knife Ex.PW7/D. He has

submitted that as per the disclosure statement of the appellant, he

disclosed that he had concealed the knife at Pandushila, Gautam Puri,

whereas as per the recovery memo Ex.PW7/D, the knife was

purportedly recovered at the instance of the appellant concealed by

the side of a wall of the drain("nali") adjacent to his House No.C-1/27,

Imam Bara, New Seelampur, Delhi. Learned counsel submitted that

this mismatch between the disclosure statement pertaining to the

place where the knife was concealed and the recovery memo regarding

the place of recovery raises a strong doubt against the correctness of

prosecution version regarding recovery of knife at the instance of the

appellant. He further submitted that otherwise also the recovered

knife has not been connected with the injury as the prosecution has

failed to place medical opinion on record to establish that the injury

found on the person of the injured Swalin could have been caused by

the aforesaid knife.

13. Much significance cannot be attached to the mismatch between

the disclosure of the appellant Ex.PW7/B and the recovery memo

Ex.PW7/D as regards the place of hiding of knife and the place of

recovery of knife. A possibility cannot be ruled out that at the time of

his interrogation by the police, with a view to mislead the Investigating

Officer, the appellant might have given a wrong version pertaining to

the place where he had hidden the knife and later on he took the Police

to the actual place where he had hidden the knife and got it recovered.

Otherwise also, non-recovery of weapon of offence or failure of

prosecution to link the recovered knife with the injury of the victim, by

itself, is not fatal to the prosecution case if there is sufficient reliable

ocular evidence to bring home the guilt of the appellant.

14. PW3 Swalin has fully supported the case of the prosecution and

his version finds corroboration from the testimony of his brother Mobin

as well as MLC Ex.PW2/A wherein it is recorded that he had sustained

an incised wound 3.5 X 2 cm on the right side of his chest. There is no

reason to doubt said evidence particularly when the complainant had

no motive or reason to falsely implicate the appellant. Otherwise also,

it is beyond comprehension as to why the complainant would falsely

implicate the appellant and allow the real culprit to go scot free. Thus,

I find that the learned trial Judge has rightly relied upon the testimony

of PW3 Swalin and PW4 Mobin to find the appellant guilty of charges

under Sections 307 IPC and 387 IPC read with Section 511 IPC and

Section 27 of the Arms Act.

15. In view of the above, I find no reason to interfere with the

impugned judgment of conviction and order on sentence. The appeal

is accordingly dismissed.

                                                    (AJIT BHARIHOKE)
JULY 29, 2010                                             JUDGE
ks/pst