Kamal Jeet Singh @ Rana & Anr. vs The State (Nct Of Delhi)
2013 Latest Caselaw 5913 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         RESERVED ON : 27th SEPTEMBER, 2013
                         DECIDED ON : 20th DECEMBER, 2013

+             CRL.A. 573/2000 & CRL.M.A.No. 2595/2000

       KAMAL JEET SINGH @ RANA & ANR.              ....Appellants
               Through : Mr.I.S.Kapur, Advocate for the appellant
                         - Kamal Jeet Singh.
                         Mr.M.C.Dhingra, Advocate for the
                         appellant - Anil Pedro.

                               VERSUS

       THE STATE (NCT OF DELHI)                  ....Respondent
                Through : Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Anil Pedro @ Sonu (A-1) and Kamal Jeet Singh @ Rana (A-

2) challenge the legality and correctness of a judgment dated 31.08.2000

of learned Addl. Sessions Judge in Sessions Case No. 128/97 arising out

of FIR No. 93/96 PS Sarojini Nagar by which they were held guilty for

committing offences punishable under Sections 307/324/34 IPC and by an

order dated 01.09.2000, were awarded RI for two years with fine ` 1,000/-

each under Sections 307/34 IPC and RI for six months with fine ` 500/-

each under Section 324 IPC. Both the sentences were to operate

concurrently.

2. Allegations against the appellants were that on 05.03.1996 at

about 12.30 P.M. near House No. 6, Krishna Nagar Park, they in

furtherance of common intention with Shashi Shekhar (since acquitted)

inflicted injuries to Surender and Virender. Daily Diary (DD) No. 12A

(Ex.PW8/A) was recorded at 13.15 P.M. at Police Station, Sarojini Nagar

when duty Const. Mahesh informed about admission of injured Virender

Singh at Safdarjung Hospital. The investigation was assigned to SI Umesh

Sharma who went to the hospital and collected Virender Singh's MLC.

After recording his statement (Ex.PW-2/A), he lodged First Information

Report by making endorsement (Ex.PW-8/B) on it. Surender Singh, the

other injured taken to Colmet Hospital was unfit to make statement.

During investigation, the assailants were arrested. The Investigating

Officer examined the witnesses conversant with the facts and after

collecting all the evidence submitted a charge-sheet to the competent

Court which in turn transmitted the case to the Court of Sessions for trial.

The prosecution in order to bring home the charge examined ten witnesses

and brought number of documents on record. In their 313 statements, the

accused persons pleaded false implication and examined DW-1 (Kamal

Gambhir) in defence. After conclusion of the trial, on appreciating the

evidence on record, the learned Trial Judge came to hold the appellants

guilty of the offences under Sections 307/324/34 IPC. It is relevant to note

that Shashi Shekhar was acquitted of the charges and the State did not opt

to challenge the acquittal. Being aggrieved, the appellants have preferred

the appeal.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error in relying upon the testimonies of interested witnesses

PW-1 (Surender Singh) and PW-2 (Virender Singh), real brothers, without

independent corroboration. It is argued that the material omissions,

discrepancies in the evidence of the witnesses create an incurable dent in

the case of the prosecution. He contended that the prosecution can succeed

by substantially proving the very story it alleges. It must stand on its legs

and cannot take advantage of the weakness of the defence. The Court

cannot on its own make out a new case for the prosecution and convict the

accused on that basis. Ingredients of Section 307 IPC are not attracted as

solitary stab blow was inflicted on the body of the victims. A-2 was not

named in the First Information Report. The prosecution was unable to

establish common intention among the assailants to inflict injuries to the

victims. The doctor who medically examined PW-1 (Surender Singh) was

not examined to prove the nature of injuries suffered by him. Testimony

of PW-10 (Dr.Yogesh Gautam) regarding describing nature of injuries

'dangerous' cannot be accepted. It was procured from a private hospital

to make out a case under Section 307 IPC. The Doctor, who examined

PW-2 (Virender Singh) at the first instance, was not produced. Per contra,

learned Addl. Public Prosecutor supported the findings of the Trial Court

and urged that the appellants were author of the injuries deliberately

caused to the victims in furtherance of their common intention. The Trial

Court's findings do not warrant any interference by this Court.

4. The occurrence took place on 05.03.1996 at about 12.30 P.M.

MLC mark 'A' (of Virender Singh) reveals that he was taken to

Safdarjung Hospital and on the basis of information given by duty Const.

Mahesh, Daily Diary (DD) No. 12A (Ex.PW-8/A) was recorded at PS

Sarojini Nagar at 13.15 P.M. The Investigating Officer recorded Virender

Singh's statement (Ex.PW-2/A) and lodged First Information Report

without any delay at 02.10 P.M. In the version narrated to the police at the

first instance, Virender Singh implicated A-1 and his two associates for

inflicting injuries to him and his brother Surender Singh by a knife. Non-

mentioning A-2's name in the FIR is of no consequence as it has come in

evidence that he (A-2) was not known to the complainant prior to the

occurrence. In the FIR, Virender Singh claimed to recognise and identify

the assailants. During investigation, the Investigating Officer moved an

application for holding Test Identification Proceedings conducted by PW-

6 (V.K.Goel, MM) on 16.04.1996 (Ex.PW-6/B). A-2 declined to

participate without cogent and valid reasons. In their Court statements,

both PW-1 and PW-2 identified A-2 without hesitation. An adverse

inference is to be drawn against A-2 for refusing participation in TIP.

Moreover, substantive evidence is identification of the assailant in the

Court.

5. Settled legal preposition is that the First Information Report

is not an encyclopaedia of the entire case and need not contain all the

details. A-2's involvement was revealed by another witness Dinesh who

could not be examined despite efforts made to procure his presence due to

non-availability of his address. PW-1 and PW-2 attributed and assigned

specific role to A-2 in the crime and the role has been established by

cogent and reliable evidence. Non-mentioning of A-2's name, thus, would

not be fatal to the prosecution case. PW-1, Surender Singh in Court

statement deposed that on 05.03.1996 at about 12.30 P.M., A-1 with his

associates, A-2 and Neeraj arrived at the spot. A-1 caught hold of his

brother's hands and exhorted his associates, 'Maro Sale Ko'. On that A-2

gave a knife blow on the left side, below left shoulder of his brother.

When he intervened to save his brother, A-1 caught hold of his hands and

A-2 gave a knife blow on his right and the left side below shoulder. When

he tried to catch his hands, he sustained knife injuries on his thumb of left

hand. Thereafter, he became unconscious and was taken to Colmet

Hospital. In the cross-examination, he fairly admitted that A-2 was not

acquainted with him previously. He talked about Dinesh's presence at the

spot and denied Gopal to be present there. He was fair enough to admit

that A-1 did not inflict any knife blow either to him or to his brother. He

denied that Virender Singh had consumed liquor or that he and his

companion Gopal attempted to apply colour to A-1 or that A-1 was

implicated due to ill-will. In the cross-examination by A-2, he disclosed

that A-1 and the other accused persons had come together. He denied that

Virender had sustained injuries in a scuffle with 15 - 20 people playing

Holi. PW-2 (Virender Singh) is another crucial witness who suffered

injuries in the occurrence. As observed above, the present case was

registered on his statement (Ex.PW-2/A) made without any delay soon

after the occurrence. In his Court statement, he proved the version given

to the police at the first instance without major variations and implicated

both A-1 and A-2 for inflicting injuries to him and his brother Surender.

He attributed specific role to A-1 when he caught hold of his hands and

exhorted A-2 'maro sale ko'. A-2 thereafter, inflicted knife injuries on his

back and armpit. When his brother Surender intervened, he was caught

hold of by A-1 and stabbed by A-2. In the cross-examination, he denied

that he sustained injuries in a quarrel in which A-1 intervened and was

falsely implicated on that account. He further denied that on the festival of

Holi that day he wanted to apply colour on A-1's face when he came to

his shop for purchasing goods. The accused persons were unable to extract

any material inconsistency or discrepancy and to shatter his testimony in

the cross-examination. Both PW-1 and PW-2 being victims / injured were

not expected to let the real culprits go scot free and to falsely implicate A-

1 and A-2 with whom they had no prior animosity. A-2 was even not

known to the victims before the incident and was not named in the FIR.

Both have corroborated each other on all material facts and have assigned

and attributed specific and definite role to the each accused in causing

injuries by a knife. It was fairly admitted by them that A-1 did not cause

any injury by a knife. Relationship between the two brothers is not a

factor to affect their credibility. It is more often than not that a relation

would not conceal actual culprit and make allegations against an innocent

person. Their ocular testimony has been corroborated by medical evidence

and there is no inconsistency between the two. PW-2 (Virender Singh)

was taken to hospital and the MLC mark 'A' records that he sustained

simple injuries by sharp weapon. PW-10 (Dr.Yogesh Gautam) medically

examined PW-1 (Surender Singh) on 05.03.1996 at about 01.30 P.M.

when he was brought at Colmet Hospital with the alleged history of being

stabbed on right side abdomen. On examination, PW-10 (Dr.Yogesh

Gautam) found one lacerated wound on the left thumb. There was 2 inch x

½ wound in the right lumber region approximately 2 inch above the right

tibia bone. The injury was opined 'dangerous' to life and inflicted with a

sharp object. The report is Ex.PW-10/A. In the cross-examination, the

witness volunteered to add that the patient was examined by him before

operation which was conducted by him on 05.03.1996. There are no sound

reasons to disbelieve the opinion given by the expert witness. He had no

extraneous consideration to give a false report. The accused persons did

not examine any other expert in defence to challenge the report of

Dr.Yogesh Gautam. Simply because PW-10 (Dr.Yogesh Gautam) was

attached to a private hospital, no ulterior motive to fabricate the report can

be inferred.

6. Taking into consideration the ocular testimony of the injured

witnesses coupled with medical evidence, the prosecution was able to

establish that the accused persons were authors of the injuries. Both of

them had arrived at the crime scene together and had participated in the

crime. A-1 had caught hold of the victims and A-2 caused injuries to them

by a knife. Earlier, an altercation had taken place with A-1 over applying

of colour on Holi. It annoyed him (A-1) and he brought his associate A-2

to settle score. A-2 had no previous animosity with the victims. Only at

the instance and exhortation of A-1, who admitted his presence at the spot,

he caused injuries to them. Apparently, both the appellants shared

common intention to inflict injuries to the victims. There is substance in

the appellants' contention that they had no intention to attempt to murder

any of the victims. It has come in evidence that there was no history of

hostile relations between the victims and the accused persons. A-2 was a

stranger and unknown to the injured persons prior to the occurrence.

Incident of quarrel had taken place with A-1 in the morning who was

residing since 1983 in the neighbourhood of the victim. The accused

persons did not anticipate arrival of the victims at the place of occurrence.

No fatal injuries were inflicted to PW-2 (Virender Singh) with whom A-1

nurtured ill-will / annoyance. Again, repeated stab blows were not caused

on vital organs to PW-1 (Surender Singh). The occurrence was outcome

of a sudden quarrel and the injury inflicted was not with the avowed

object or intention to cause death. Under Section 307 IPC, the

determinative question is intention or knowledge, as the case may be, and

not nature of injuries. In the instant case, both intention and knowledge in

terms of Section 307 IPC could not be attributed to the accused persons.

Since grievous / dangerous hurt was caused voluntarily to PW-1 (Surender

Singh), both the accused persons can be held liable / responsible for

committing offence under Sections 326/34 IPC. Accordingly, the

conviction is altered to Sections 326/324/34 IPC.

7. The appellants were sentenced to undergo RI for two years

with total fine ` 1,500/-, each. The incident pertains to the year 1996. A-

2's nominal roll reveals that he remained in custody for seventeen days

and was not involved in any other criminal case; his overall jail conduct

was satisfactory. A-1 is also stated to have remained in custody for three

or four months and had no criminal antecedents. Considering the

mitigating circumstances, the sentence order is modified and the

substantive sentence awarded to A-1 and A-2 is reduced from two years to

one year under Sections 326/324/34 IPC. Other terms and conditions of

the sentence order are left undisturbed. The appellants shall, however, pay

the unpaid fine (if any) and deposit ` 40,000/-, each as compensation

within fifteen days in the Trial Court. The compensation ` 80,000/- shall

be released to the victims (` 50,000/- to the Surender Singh and `

30,000/- to the Virender Singh) after service of due notice.

8. The appeal stands disposed of in the above terms. The

appellants are directed to surrender before the Trial Court on 3rd January,

2014 to serve out the remaining period of sentence. Trial Court record be

sent back immediately with the copy of the order. Pending application

also stands disposed of.

(S.P.GARG) JUDGE DECEMBER 20, 2013/tr