Lala @ Shamim vs The State (Nct Of Delhi)
2013 Latest Caselaw 1317 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  RESERVED ON : February 25, 2013
                                  DECIDED ON : March 18, 2013

+                                 CRL.A. 1012/2012

       LALA @ SHAMIM
                                                             ..... Appellant
                             Through : Mr.Chetan Lokur and
                                       Mr.O.P.Aggarwal, Advocates.
                             VERSUS
       THE STATE (NCT OF DELHI)                  ..... Respondent
                     Through : Mr.M.N.Dudeja, APP for the State.
AND

+                                 CRL.A. 828/2012

       FURKHAN @ RAJU                                    ..... Appellant
                   Through :            Mr.Anish Dhingra, Advocate.

                             VERSUS

       THE STATE (NCT OF DELHI)                  ..... Respondent
                     Through : Ms.Fizani Husain, APP.

       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Lala @ Shamim (A-1) and Furkhan @ Raju (A-2) impugn

judgment dated 28.04.2012 and order on sentence dated 04.05.2012 in

Sessions Case No.128/2010 arising out of FIR No.529/2008 registered at

Police Station Sarita Vihar by which they were held guilty for committing

offence punishable under Sections 307/34 IPC and sentenced to undergo

RI for six years with fine `1,000/- each.

2. Daily Diary (DD) No.35A (Ex.PW-5/A) was recorded on

16.10.2008 at around 22.45 hours at Police Station Sarita Vihar on getting

information from Constable Neeraj Kumar (PW-2) that two boys who

arrived on motorcycle fled the spot after firing at Saleem s/o Yasin at

village Jasola. The investigation was assigned to SI Padam Singh Rana

who went to Apollo hospital. Injured Mustakin @ Saleem was fit to make

statement and the investigating officer recorded his statement. He

disclosed that on 16.10.2008 at about 09.30 P.M. when he was sitting

outside his shop A-1 and A-2 came and demanded `5,000-7,000/- from

him. When he told that he was not having money, A-2 exhorted A-1 to

fire at him (maar saale ko goli). A-1 took out a katta and fired on his

neck. He fell down. After hearing his cries, Constable Neeraj arrived

and admitted him at Apollo hospital. He further disclosed that earlier also

A-1 and A-2 had demanded money from him and had extended threats for

which he had lodged report with the police. SI P.S.Rana lodged First

Information Report with the police. Necessary proceedings were

conducted at the spot. Efforts were made to find out the assailants but in

vain. During the course of investigation, the accused were arrested. The

crime weapon was recovered by the police of P.S. Pisawa, Aligarh, U.P.

from A-1 in case FIR No. 182/2009. Statements of witnesses conversant

with the facts were recorded. On completion of investigation, charge-

sheet was submitted against the accused. They were duly charged and

brought to trial. The prosecution examined 17 witnesses. In their 313

statement, the accused pleaded false implication. On appreciating the

evidence and considering the rival contentions of the parties, the Trial

Court, by the impugned judgment, held both the accused guilty under

Section 307/34 IPC and sentenced them. Being aggrieved, the appellants

have preferred the appeals.

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

did not appreciate the evidence in its true and proper perspective. No

independent public witness was associated at any stage. Adverse

inference is to be drawn against prosecution for not examining Latori who

arrived the spot. The police did not examine any neighbor to ascertain if

fire shot was heard by any of them. The doctor who opined the nature of

injuries as 'dangerous' was not examined despite his availability in Apollo

hospital. The prosecution could not establish that the crime weapon was

recovered at A-1's instance. The victim has given inconsistent version

and made vital improvements in his deposition. A-1 was not known to the

victim and he had no motive to inflict injury on his neck. He was arrested

after one year of the incident. Section 307 IPC is not made out or proved

as the injuries suffered by the victim were not sufficient to cause death in

the ordinary course of nature. Forensic Science Laboratory Report does

not establish appellants' involvement. Learned Additional Public

Prosecutor urged that the victim had no ulterior motive to falsely

implicate the accused. There is no conflict between the ocular and

medical evidence.

4. I have considered the submissions of the parties and have

examined the record. The occurrence took place at 09.30 P.M. Injured

Mustakin @ Saleem was taken to Apollo hospital by Constable Neeraj at

10.08 P.M. MLC (Ex.PW4/A) records the alleged history of 'gun shot' at

around 09.45 P.M. at village Jasola on 16.10.2008. It further records that

the patient sustained injuries on neck. DD No.35A (Ex.PW5/A) was

registered at Police Station Sarita Vihar at 22.45 hours. Investigation was

assigned to SI Padam Singh Rana who reached Apollo hospital and

recorded injured's statement after he was declared fit for making

statement at 11.40 P.M. First Information Report was lodged on the night

intervening 16/17-10-2008 at around 00.15 hours. There was, thus, no

delay in lodging the report with the police. The prompt and early

reporting of the occurrence to the police gives an assurance regarding

truth of the informant's version. A promptly lodged FIR reflects the first

hand account of what has actually happened, and who was responsible for

the offence in question. It rules out introduction of coloured version,

exaggerated account or concocted story as a result of large number of

consultations/deliberations. In the statement Ex.PW16/A to the police at

first instance, the victim gave vivid description of the assailants and

attributed specific role to each of them. He gave detailed account as to

how and under what circumstances both the accused reached the spot and

fired at him. While appearing as PW-16 the victim proved the version

stated to the police soon after the occurrence without variation. He

deposed that when he was sitting outside his shop at about 9.30 P.M. A-1

and A-2 came and demanded `5,000-7,000/- from him. When he told

that he was not having money, they made him to fall (gira diya). A-2 told

A-1 'Maar Saale ko goli". Thereafter, A-1 fired from his katta at him

which hit him on his neck. He started crying with pain. Both the

assailants fled the spot. Constable Neeraj, beat constable, arrived and

took him to Apollo hospital. He lodged complaint with the police

(Ex.PW-16/A). In the cross-examination, he disclosed that A-2 was

earlier working with him for about 6/7 years. Constable Neeraj arrived

after 8-10 minutes. He called one or two neighbours and took him to the

hospital. He recollected that Latori had reached the spot at Neeraj's

request. He denied that he owned `3 lacs to Raju (A-2) and falsely

implicated him to settle the score. He fairly admitted that before the

incident he had not met A-1. He elaborated that he had conversation with

A-1 number of times on telephone. He further disclosed that he remained

admitted in Apollo hospital for four days. Thereafter, his son admitted

him in Bansal hospital, New Friends Colony and he get treatment for one

month.

5. On scrutinizing the testimony of the victim, it transpires that

no material discrepancies have emerged to disbelieve him. Injuries

suffered by him on neck were not challenged. The accused did not deny

their presence at the spot. Material facts deposed by the victim remained

uncontroverted in the cross-examination. No ulterior motive was proved

to force the victim to falsely rope in the accused. His testimony is

consistent with the medical evidence. PW-4 (Dr.Ambuj Kumar Singh,

CMO, Apollo Hospital) proved MLC (Ex.PW-4/A). He had medically

examined the injured. On local examination, lacerated wound around 1

cm over left side of the neck (mid neck) was found. He further deposed

that the bullet was taken out by Dr.Harsh Bhargav from the neck of the

injured during operation. The accused did not opt to cross-examine him.

Nature of injuries was given as 'dangerous' on MLC (Ex.PW-4/A) by

Dr.Harsh Bhargav.

6. PW-16 (Mustakin @ Saleem) is an injured witness. He

sustained dangerous injuries on vital organ i.e. neck by a fire bullet. He

remained admitted in Apollo hospital for four days. Thereafter, he was

admitted in Bansal hospital and was confined there for about one month.

There are no good reasons to discard his testimony. Normally, an injured

witness would enjoy greater credibility because he is the sufferer himself

and there will be no occasion for such a person to state an incorrect

version of the occurrence or to involve anybody falsely and in the

bargaining protect the real culprit. In Abdul Sayeed v.State of Madhya

Pradesh (2010) 10 SCC 259 the Supreme Court held as under:

"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."

7. PW-2 Constable Neeraj Kumar (beat constable) was on

patrolling duty at Jasola Village. During patrolling, he reached the spot at

about 10.00 P.M. On hearing the noise, he saw that Mustkin had got

gunshot wound on the left side of the neck and was lying at the spot. He

informed the Police Station and took him to Apollo hospital. MLC

(Ex.PW.4/A) records his name as the person who brought the injured to

Apollo hospital. Contents of DD No.35A (Ex.PW-5/A) further

corroborate that on his intimation on phone the police machinery came

into motion.

8. A-2 was acquainted with the victim and was named by him in

the FIR. A-1 was also known to him and both used to have conversation

on telephone. He was also name in the FIR and precise role was assigned

to him. Since both A-1 and A-2 were named in the FIR and they were

identified without any hesitation by the victim in the court, no adverse

inference can be drawn for not moving any application for the Test

Identification Parade for A-1. It is true that the prosecution failed to

establish beyond doubt that the bullet recovered from the neck of the

deceased was fired with the country made pistol recovered and produced

in the court. The said country made pistol was recovered by the police of

P.S. Pisawa, Aligarh, U.P. However, the prosecution did not examine

any witness from that police station to prove recovery of country made

pistol from A-1's possession. It is also true that no independent public

witness was associated during investigation. However, there is nothing on

record to show if the incident was witnessed by any such independent

public witness. Presence of Latori at the spot was not certain. Moreover,

non-examination of independent witness by itself may not give rise to

adverse inference against the prosecution, if the witnesses already

examined are reliable and the testimony coming from their mouth is

unimpeachable. It is the quality and not the quantity of evidence that

matters. There is lapse on the part of the prosecution not to examine

Dr.Harsh Bhargav who had opined the nature of injuries suffered by the

victim as 'dangerous' despite his availability in Apollo hospital.

However, to justify a conviction under Section 307 IPC, it is not essential

that bodily injury capable of causing death should have been inflicted. It

is not necessary that the injury actually caused to the victim of the assault

should be sufficient under ordinary circumstances to cause the death of

the person assaulted. What the court has to see is whether the act

irrespective of its result, was done with the intention or knowledge and

under circumstances mentioned in this Section. Section 307 may apply

even if no harm is caused. The causing of hurt is merely an aggravating

circumstance and it cannot be reasonably argued that unless the injury

sufficient in the ordinary course of nature to cause death is inflicted on the

victim, the intention contemplated by this Section cannot be presumed.

The determinative question is intention or knowledge as the case may be

and not nature of the injury.

9. Contradictions/improvements highlighted by the counsel are

minor in nature and are not sufficient to shake the prosecution case as a

whole. 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, embellishment 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 conviction of the appellants based

upon fair appraisal of the evidence and needs no interference. Both the

accused went to spot together and participated in the crime. On the

exhortation of A-2, A-1 fired with a country made pistol on the vital organ

of the victim. They both fled the spot together. Complainant assigned

motive to the accused to inflict injury when he expressed his inability to

meet their demand of payment of `5000-7000/-. From the facts and

circumstances it can be inferred that both the accused shared common

intention and attempted to murder the victim.

10. The appellants have been sentenced to undergo RI for six

years each. A-1's nominal roll reveals that he had already undergone two

years, nine months and 14 days incarceration as on 01.11.2012. He also

earned remission for one month and fourteen days. His jail conduct is

satisfactory. He is not a previous convict. He has two minor children,

wife and old parents to look after. A-2 has undergone sentence for three

years, eight months and five days as on 05.07.2012. He also earned

remission for five days. His jail conduct is satisfactory. He is not

involved in any other criminal case and is not a previous convict.

Considering these facts and circumstances, the order on sentence is

modified and their substantive sentence is reduced to RI for five years

each. Other sentences are left undisturbed.

11. The appeals are disposed of in the above terms.

12. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE March 18, 2013 sa