Delhi High Court

Deepak Kumar vs State (Delhi) on 7 March, 2013

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 25th February, 2013
                                  DECIDED ON : 7th March, 2013

+                         CRL.A. 232/2000

      DEEPAK KUMAR                                    ....Appellant
              Through :          Mr.Mohd. Shamikh, Advocate.

                                 versus

      STATE (DELHI)                                      ....Respondent
               Through :         Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. The appellant- Deepak Kumar challenges correctness of the

judgment dated 25.03.2000 and order on sentence dated 27.03.2000 in

Sessions Case No. 246/1997 arising out of FIR No. 280/1997 PS Kirti

Nagar by which he and Vinod Kumar were convicted for committing

offences punishable under Sections 342/452/307/34IPC and sentenced to

undergo RI for five years with total fine ` 5,000/-.

2. On 14.07.1997 at around 05.00 P.M., Mukesh Jain, Sales-

man at the shop at M/s. Sultan Chand Vimal Prakash, at I-140, Kirti Nagar

was present in the shop. At that time two boys entered the shop and made

enquiries from the complainant- Mukesh Jain for nylon. He went to the

rear room to bring nylon. The said two boys followed him. He was

stabbed with knife. The assailants fled the spot. Daily Diary (DD) No.38B

(Ex.PW-8/A) was recorded at 06.30 P.M. at Police Station Kirti Nagar on

getting information that an individual has been stabbed at I-140, Kirti

Nagar. The investigation was marked to SI Rajinder Singh who with

constable went to the spot. Injured Mukesh Jain had already been taken to

Deen Dayal Upadhayay Hospital (in short DDU Hospital). The

Investigating Officer collected his MLC but he was declared unfit to make

statement. Since no eye witness was available, SI Rajinder Singh lodged

First Information Report vide endorsement Ex.PW-8/B over DD entry.

He went to the spot; prepared site plan (Ex.PW-8/C); got the scene of

incident photographed; lifted blood sample from the spot and prepared

seizure memo.

3. On 16.08.1997, Daily Diary (DD) No.42B was recorded

intimating that Deepak Kumar and Vinod have been arrested in case FIR

No.430/1997, Police Station Moti Nagar. SI Rajinder Singh went to Police

Station Moti Nagar and collected their disclosure statements. The accused

was arrested. Both Deepak and Vinod declined to participate in Test

Identification Proceedings. During the course of investigation, the

Investigating Officer recorded statements of the witnesses conversant with

the facts. On completion of investigation, a charge-sheet was submitted in

the Court. The accused were duly charged and brought to trial. On

appreciating the evidence and taking into consideration the contentions of

both the parties, the Trial Court, by the impugned judgment held both of

them guilty for the offences mentioned previously. Being aggrieved,

Deepak has preferred the present appeal.

4. Learned counsel for the appellant- Deepak urged that the

Trial Court did not appreciate the evidence in its true and proper

perspective and fell into grave error to base conviction on the sole

testimony of the complainant- Mukesh Jain. PW-1 (Mukesh Jain) and

PW-8 (SI Rajinder Singh), Investigating Officer gave inconsistent version

as on which date and place the accused were identified by the

complainant. Mukesh Jain claimed that he had identified the accused

when they were being produced at Tis Hazari Court on 25.09.1997. The

Investigating Officer on contrary claimed that the accused were identified

by the complainant on 16.09.1997. DW-1 (Ravinder Singh Bisht) from

Tihar Jail categorically deposed that on 25.09.1997 the accused was not

produced at Tis Hazari Court in any case. Counsel further pointed out that

no crime weapon was recovered from the accused. Statement of the

complainant was recorded after inordinate delay and there is discrepancy

whether it was recorded at the Police Station or at his residence. It is also

not clear if landlord of the complainant was present at the time of

recording his statement. Counsel emphasized that Section 34 IPC is not

attracted. There was no exhortation by the accused and the complainant

made vital improvement in his deposition before the Court. Learned APP

urged that complainant- Mukesh Jain had no extraneous consideration to

implicate the accused. Medical evidence corroborates his testimony in its

entirety.

5. Daily Diary (DD) No.38B (Ex.PW-8/A) was recorded at

06.30 P.M. It records that an individual was stabbed with a knife at I-140,

Kirti Nagar. The victim was taken to DDU Hospital on 14.07.1997 at

06.55 P.M. by HC Surender Kumar of PCR. Two clean lacerated wounds

were noticed on his abdomen. The injuries were dangerous in nature

inflicted with sharp weapon. The complainant remained admitted in DDU

Hospital for ten days and was discharged on 23.07.1997. He was unfit to

make statement. Apparently, the injuries were not self-inflicted. The

victim had no reason to fake injuries on his body.

6. The crucial question is as to who was the author of the

injuries caused to the complainant. Victim's testimony is very crucial to

establish the guilt of the accused. He was not acquainted with the

assailants. There was no animosity with the accused. He did not name the

assailants in his statement recorded on 25.07.1997 (Ex.PW-1/DA). The

assailants could not be arrested in this case. On 16.08.1997, Daily Diary

(DD) No.42B (Ex.PW-8/D) was recorded intimating arrest of the accused

at Police Station Moti Nagar in FIR No. 430/1997. The Investigating

Officer- SI Rajinder Singh came to know accused's involvement in the

incident from the disclosure statements recorded in the said case.

Thereafter, he moved an application (Ex.PW-8/E) for Test Identification

Parade on 19.08.1997. The accused were produced in muffled faces in the

Court. The accused declined to participate in TIP Proceedings. PW-9

(Sh.A.S.Dateer), MM proved the proceedings Ex.PW-9/A and Ex.PW-

9/B. An adverse inference is to be drawn against the accused for not

participating in the TIP Proceedings.

7. While appearing as PW-1, Mukesh Jain without any

hesitation identified the appellant as one of the assailants and attributed

specific role to him. He proved the version given to the police in his

statement (Ex.PW-1/DA) without any variation. He identified and

recognised Deepak as the assailant who had put iron chain around his

neck. Vinod had stabbed him with knife on his abdomen. He identified

shirt (Ex.P1) which he was wearing at the time of incident. In the absence

of any ill-will or ulterior motive, the complainant was not imagined to

falsely identify Deepak. Testimony of complainant on material facts

remained unchallenged and uncontroverted in the cross-examination.

Ocular testimony of PW-1 is consistent with medical evidence. PW-2

(Dr.P.S.Sarangi) examined the patient. He was of the opinion that the

nature of injury suffered by him was 'dangerous'. His endorsements to

that effect are Ex.PW-2/A and Ex.PW-2/B. There are no good reasons to

disbelieve the opinion given by the expert witness. PW-4 (Dr.Poonam

Aggarwal) also proved MLC (Ex.PW-4/A) when the victim was taken to

casualty on 14.07.1997. There is no conflict between the ocular and

medical evidence. The testimony of a stamped witness has its own

relevance and efficacy. The fact that the witness had sustained injuries at

the time and place of occurrence, lends support to his testimony that he

was present during the occurrence. The testimony of the injured witness

is accorded a special status in law. This is a consequence of the fact that

the injury to the witness is an in-built guarantee of his presence at the

scene of crime and because the witness will not want to let the actual

assailant to go unpunished merely to falsely involve a third party for the

commission of the offence. In the case of 'State of Uttar Pradesh

vs.Naresh and Ors.', (2011) 4 SCC 324, the Supreme Court held:

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

8. In the case of 'Abdul Sayed Vs.State of Madhya Pradesh',

(2010) 10 SCC 259, the Supreme Court held :

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".

9. It is true that there is inconsistency in the statement of PW-1

(Mukesh Jain) and PW-8 (SI Rajinder Singh) about the date when the

complainant identified the accused in Tis Hazari Court. The discrepancy

is of no consequence as the accused did not participate in the TIP

Proceedings and the complainant, thereafter, identified him in the Court.

The accused was arrested by the police of PS Moti Nagar in FIR

No.430/1997. There was no occasion for the Investigating Officer to show

him to the complainant before moving an application for TIP. Moreover,

the complainant had no ulterior motive to falsely recognise the accused.

There was no valid reason for the accused to decline participation in TIP

proceedings.

10. In 'Prem Singh vs. State of Haryana', 2011 (10) SCALE 102,

the Supreme Court held :

XXX XXX XXX "13. The two eye-witnesses PW-11 and PW-12 have given a graphic description of the incident and have stood the test of scrutiny of cross-examination and had also stated that they could identify the assailants, but the accused had declined to participate in the test identification parade on the ground that he had been shown to the eye-witnesses in advance. In my considered view, it was not open to the accused to refuse to participate in the T.I. parade nor it was a correct legal approach for the prosecution to accept refusal of the accused to participate in the test identification parade. If the accused-Appellant had reason to do so, specially on the plea that he had been shown to the eye-witnesses in advance, the value and admissibility of the evidence of T.I. Parade could have been assailed by the defence at the stage of trial in order to demolish the value of test identification parade. But merely on account of the objection of the accused, he could not have been permitted to decline from participating in the test identification parade from which

adverse inference can surely be drawn against him at least in order to corroborate the prosecution case.

14. In the matter of Shyam Babu v. State of Haryana : AIR 2009 SC 577 where the accused persons had refused to participate in T.I. parade, it was held that it would speak volumes, about the participation in the Commission of the crime specially if there was No. statement of the accused under Section 313 Code of Criminal Procedure that he had refused to participate in the T.I. Parade since he had been shown to the witnesses in advance. In the matter of Munna v. State (NCT of Delhi) : AIR 2003 SC 3805 (3809) as also in the State of Haryana v. Surender: AIR 2007 SC 2312; in Teerath Singh (D) by LR v. State 2007 (1) ALL LJ (NOR) 143 (UTR) the Supreme Court still further had been pleased to hold that if the statement of the accused refusing to participate in T.I. Parade which was recorded in the order of the Magistrate was missing under Section 313 Code of Criminal Procedure, it was held that it was not open to the accused to contend that the statement of the witnesses made for the first time in Court identifying him should not be relied upon."

11. Complainant has offered reasonable explanation for delay in

recording statement. He remained admitted in the hospital for ten days and

was unfit to make statement. When he was discharged from the hospital,

the Investigating Officer recorded his statement. Minor contradictions as

to where his statement was recorded at Police Station or at his residence is

not enough to throw away his entire version about the incident given in

the Court. In 'Kathi Bharat Vajsur and Anr. Vs. State of Gujarat', AIR

2012 SC 2163, the Supreme Court held :

"19. This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra : (2010) 13 SCC 657, summarized the law on material contradictions in evidence thus:

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan.)"

12. The prosecution was unable to find out motive of the accused

to inflict vital injuries to the victim. It is a settled legal proposition that

motive has greater significance in a case, involving circumstantial

evidence but where direct evidence is available, which is worth relying

upon, motive loses its significance. Therefore, if the genesis of the motive

of the occurrence is not proved, the ocular testimony of the witnesses as to

the occurrence cannot be discarded only by the reason of the absence of

motive.

13. Both Deepak and Vinod had gone to the complainant's shop

and were armed with weapons. They both participated in the crime. The

appellant made the victim fall on the ground and put an iron chain around

his neck. They fled the spot together. They were apprehended in FIR No.