Joginder Singh @ Mor vs State Of Delhi
2013 Latest Caselaw 5425 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 20th SEPTEMBER, 2013
                                DECIDED ON : 25th NOVEMBER, 2013

+                           CRL.A. 250/2003
       JOGINDER SINGH @ MOR                                 ..... Appellant
                     Through :       Mr.Rajeev Gaur 'Naseem', Advocate.

                            versus
       STATE OF DELHI                                     ..... Respondent
                Through :            Mr.Lovkesh Sawhney, APP.

+                           CRL.A. 327/2003
       KULDIP KUMAR @ RAJU LANGDA                           ..... Appellant
                     Through :       Mr.Anurag Jain, Advocate.

                            versus
       STATE OF DELHI                                     ..... Respondent
                Through :            Mr.Lovkesh Sawhney, APP.

AND
+                           CRL.A. 63/2005
       SUNIL @ GANJA                                        ..... Appellant
                     Through :       Mr.Sitab Ali Chaudhary, Advocate.
                            versus
       THE STATE                                          ..... Respondent
                Through :            Mr.Lovkesh Sawhney, APP.

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



CRL.A.Nos. 250/2003, 327/2003 & 63/2005                          Page 1 of 13
 S.P.GARG, J.

1. Joginder Singh @ Mor (A-1), Kuldip Kumar @ Raju Langda

(A-2) & Sunil @ Ganja (A-3) impugn a judgment dated 01.04.2003 of

learned Addl. Sessions Judge in Sessions Case No. 38/98 arising out of

FIR No. 339/95 PS Janak Puri by which they were convicted under

Sections 307/34 IPC and 25/27 Arms Act. By an order dated 02.04.2003,

they were sentenced to undergo RI for five years with fine ` 10,000/- each

under Sections 307/34 IPC; RI for one year with fine ` 1,000/- each under

Sections 25/27 Arms Act. The sentences were directed to operate

concurrently.

2. Allegations against the appellants were that on 08.06.1995 at

about 09.30 P.M. at Mangal Bazar Road, Uttam Nagar, Delhi near Sharma

Hotel, they in furtherance of common intention attempted to murder Jai

Bhagwan by firing at him. The first shot aimed at Jai Bhagwan missed and

hit Nagendu who sustained injuries. They fired again and the shot hit the

complainant Jai Bhagwan on his chest. The police machinery came into

motion after Daily Diary (DD) No. 36 (Ex.PW-15/A) was recorded at

10.00 P.M. on 08.06.1995 at Police Post, East Uttam Nagar on

information from PCR that 'firing' was going on behind Arya Samaj Road

Temple. The investigation was assigned to SI R.D.Yadav who with

Const.Ram Kumar and other police officials went to the spot. The injured

had already been taken to DDU Hospital. SI R.D.Yadav collected MLCs

of the victims Jai Bhagwan and Nagendu and lodged First Information

Report after recording Jai Bhagwan's statement (Ex.PW-6/A). Scooter

No. DL-4 SC 9623 found at the spot was seized. During the course of

investigation, statements of the witnesses conversant with the facts were

recorded. A-1 to A-3 were arrested and pursuant to their disclosure

statements, A-2 and A-3 recovered country-made pistols. Exhibits were

sent to Forensic Science Laboratory (FSL). Ashwani and Sanjiv Sethi

charge-sheeted along with A-1 to A-3 were discharged vide order dated

15.01.1999 and the State did not challenge the discharge order. A-1 to A-3

were duly charged and brought to Trial. To bring home their guilt, the

prosecution examined twenty-two witnesses. In their 313 statements, the

appellants pleaded false implication and denied their complicity in the

crime. After hearing the contentions of the parties and appreciating the

evidence on record, the Trial Court, by the impugned judgment, convicted

A-1 to A-3 for the offences mentioned previously. Being aggrieved, they

have preferred the appeals.

3. Appellants' counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. PW-7 (Lekh

Raj) and PW-19 (Ramesh Mehta) were falsely introduced as eye witnesses

though they were not present at the spot. The Trial Court fell in grave

error to place reliance on their tainted version. They lacked credibility

being interested witnesses and having criminal antecedents. Complainant

Jai Bhagwan himself was involved in number of criminal cases and was

Bad Character (BC) of the area. The recoveries are doubtful. The country

made pistol recovered was not connected / linked with the crime. The

concerned doctor who medically examined Jai Bhagwan was not

produced to prove the nature of injuries suffered by him. The investigation

is tainted and unfair. Adverse interference is to be drawn against

prosecution for withholding Nagendu, the other injured. The counsel

adopted alternative argument to release the appellants for the sentence

already undergone by them in case they were found guilty. Learned Addl.

Public Prosecutor supporting the judgment urged that it is based upon fair

appraisal of evidence and warrants no interference. Despite all efforts to

procure Nagendu's presence, he could not be traced and examined.

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

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

Daily Diary (DD) No. 36 (Ex.PW-15/A) was recorded at Police Post East

Uttam Nagar at 10.00 P.M. The Investigating Officer went to the spot. He

collected the MLCs of both the victims at DDU Hospital. After recording

Jai Bhagwan's statement (Ex.PW-6/A), he lodged First Information

Report at 12.50 A.M. by making endorsement (Ex.PW-22/A) thereon,

promptly without delay. Nagendu's MLC (Ex.PW-4/A) records the arrival

time of the patient at 10.15 P.M. Jai Bhagwan was taken to DDU Hospital

at 10.10 P.M. as recorded in the MLC (Ex.PW-4/B). The FIR was

registered on the statement of the complainant in which he gave vivid

detail of the incident as to how the assailants had arrived at the spot by

Scooter No. DL-4 SC 9623 at 09.30 P.M. where he had gone to purchase

'subzi'. He further disclosed that A-1 and A-2 fired at him with country

made pistols and he sustained gunshot injuries on chest. He was able to

escape the first shot which hit a servant working at Sharma Hotel. The

assailants fled the spot. Since the FIR was lodged soon after the incident

promptly, there was least possibility of fabrication of a false story in a

short interval. A-1 to A-3 were named in the FIR and specific role was

ascribed to them. In his Court statement, PW-6 (Jai Bhagwan) proved the

version given to the police at the first instance without major variations

and deposed that on 08.06.1995, he had gone to Sharma Hotel, Mangal

Bazar for purchasing 'subzi'. When he was present outside the hotel at

about 09.30 P.M. all the accused persons arrived on a two wheeler Scooter

No. DL-4 SC 9623. A-1 fired the shot aiming at him but it hit a boy at the

hotel as he bent down. Thereafter, the shot fired at him by A-2 hit on the

left side of chest and he started bleeding from mouth. A-3 who drove the

two-wheeler scooter exhorted A-1 and A-2 to kill him ('maro sale ko').

After the incident, he was medically examined at DDU Hospital and his

statement (Ex.PW-6/A) was recorded. The assailants had previous

acquaintance with him. In the cross-examination, he elaborated that the

first shot was fired from close range and at the time of second shot, A-2

was standing near him. He admitted his involvement in many criminal

cases but volunteered to add that he was acquitted in those cases. He

further admitted that he had no previous dealings with A-1. He was

semiconscious when the doctor examined him after he was taken to the

hospital by Gopal. He admitted that he was Bad Character (BC) of the

area but denied that injuries were caused to him by unidentified assailants

to whom he was unable to recognise due to darkness. It appears that

despite lengthy and searching cross-examination, no material discrepancy

could be elicited to discard the version of the victim. No ulterior motive

was assigned to him for falsely implicating the appellants. The injuries

were not self-inflicted or accidental in nature. The victim had no sound

reasons to spare the real assailants and to falsely rope in the innocent for

the injuries sustained by him. The injuries on his body establish his

presence at the crime scene. PW-1 (Gopal) corroborated his version to the

extent that he had taken Jai Bhagwan to the hospital in injured condition.

PW-2 (Satish Chand) had taken Nagendu, a karigar at his dhaba, to DDU

Hospital. There is no variance and conflict between the ocular and

medical evidence. PW-5 (Dr.Puneet Chhibar) who medically examined

Nagendu vide MLC (Ex.PW-5/A) was of the opinion that he suffered

'grievous' injuries. PW-4 (Sant Ram) from DDU Hospital proved the

MLC (Ex.PW-4/B) prepared by Dr.Tresa by which Jai Bhagwan was

examined and the nature of injuries was opined 'dangerous'. In MLC's

(Ex.PW-4/A & Ex.PW-4/B), the injuries were described as 'gunshot'

injuries.

5. PW-7 (Lekh Raj) and PW-19 (Ramesh Mehta) claimed to

have witnessed the occurrence, however, their presence at the spot appears

doubtful. Their names do not find mention in the victim- Jai Bhagwan's

statement (Ex.PW-6/A). None of them reported the incident to the police.

Neither did they interfere in the scuffle nor did they take the victims to the

hospital. Their conduct is quite unnatural and unreasonable and is not in

accord with the acceptable human behaviour. It makes their presence at

the spot highly suspicious. However, exclusion of their evidence would

not dilute the cogent and reliable testimony of most natural witness PW-6

(Jai Bhagwan), the injured, which is accorded a special status in law. 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."

6. 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".

7. Efforts were made to summon and examine injured Nagendu

but he was not traceable. It cannot be said that the prosecution did not

intentionally or deliberately produce him in the Court for giving evidence.

No adverse inference can be drawn against the prosecution on that

account. The fact remains that Nagendu who sustained injuries was taken

to DDU Hospital and was medically examined by PW-5 (Dr.Puneet

Chhibar). PW-2 (Satish Chand) categorically deposed that on 08.06.1995,

he took Nagendu who used to work at his dhaba to make chapatti, to DDU

Hospital in injured condition. This independent public witness has no

reasons to make false statement. It is not necessary to multiply witnesses

to prove a prosecution case. The Courts are concerned with quality and

not with quantity of evidence and in a criminal trial, conviction can be

based on the sole evidence of a witness if it inspires confidence. Country-

made pistol (Ex.P1) with cartridge (Ex.P2) and country-made pistol

(Ex.P3) with cartridge (Ex.P4) were recovered pursuant to A-3 and A-2's

disclosure statements, respectively. As per CFSL report (Ex.PW-22/D),

cartridge (Ex.P2) was fired from the country-made pistol (Ex.P1). It could

not be ascertained if the cartridge (Ex.P4) was fired from the country-

made pistol (Ex.P3) as it was not in working order and its firing pin was

missing. Non-recovery of the crime weapon is not fatal to the prosecution

case and does not discredit the testimony of the injured.

8. A-1 to A-3 had arrived at the scene after making preparation

and were armed with deadly weapons. A-1 and A-2 participated in the

crime by firing at PW-6 (Jai Bhagwan). A-3 facilitated the commission of

crime and drove A-1 and A-2 on scooter No. DL-4 SC 9623 which was

abandoned at the spot after the firing incident, to the scene of the crime.

He also exhorted A-1 and A-2 to kill the complainant by uttering 'Maro

Sale Ko'. After the crime, they all fled the spot together. Inference can be

drawn from the proved circumstances that A-1 to A-3 shared common

intention to eliminate Jai Bhagwan by firing at him. To justify conviction

under Section 307 IPC, it is not essential that bodily injury capable of

causing death should have been inflicted. It is sufficient if there is present

an intent coupled with some overt act in execution thereof. If the injury

inflicted has been with the avowed object or intention to cause death, the

nature, extent or character of the injury or whether such injury was

sufficient to actually causing death are irrelevant factors for adjudging the

culpability under Section 307 IPC. The nature of weapon used, the

intention expressed by the accused at the time of the act, the motive for

commission of the offence, the nature and size of the injuries, the parts of

the body of the victim selected for causing injuries and the severity of the

blow or blows are important factors that can be taken into consideration in

coming to a finding whether in a particular case, the accused can be

convicted of an attempt of murder. In the instant case, A-1 and A-2 were

armed with deadly weapons. A-1 had fired at Jai Bhagwan. However, he

was able to escape by benting down and it hit an innocent helper -

Nagendu, working at a hotel/ dhaba and caused grievous injuries on his

body. The unsuccessful attempt to target PW-6 (Jai Bhagwan) did not

deter the assailants and A-2 fired at PW-6 (Jai Bhagwan) and it hit him on

his chest, a vital body organ causing injuries 'dangerous' in nature on his

body. Apparently, A-1 and A-2 attacked PW-6 (Jai Bhagwan) to eliminate

him. It is true, the victim was involved in number of criminal cases and

was Bad Character (BC) of the area but that did not give licence to the

appellants to take law in their hands and to put an end to his life.

Discharge of Ashwani and Sanjiv Sethi for various reasons detailed in the

order on charge has no impact on the appellants' conviction as their

involvement in the incident has been established beyond reasonable doubt.

The findings of the Trial Court under Sections 307/34 IPC and under

Sections 25/27 Arms Act are sustained / affirmed.

9. A-1 to A-3 were directed to undergo RI for five years with

total fine ` 11,000/- each. A-3's nominal roll dated 26.09.2013 reveals

that he has suffered incarceration for two years, four months and twenty

days besides earning remission for seven months and twenty seven days.

The unexpired portion of sentence is one year, eleven months and thirteen

days. He is not a previous convict and has clean antecedents. His overall

jail conduct was satisfactory. He was not armed with country-made pistol

and did not fire at the victims. Considering the role in the incident, he

deserves to be released for the period already undergone by him in

custody. He shall however, pay fine ` 11,000/- (if not paid earlier) within

fifteen days or else shall undergo default sentence.

10. A-1's nominal roll dated 27.09.2013 shows that he remained

in custody for eleven months and fourteen days besides earning remission

for three months and fourteen days. A-2's nominal roll dated 27.09.2013

reveals that he suffered custody for one year and twenty eight days

besides earning remission for three months and fifteen days. They have

clean antecedents and are not involved in any other criminal case.

Considering these aspects, the sentence order is modified and the

substantive sentence of A-1 and A-2 is reduced from five years to three

years. Other terms and conditions of the sentence are left undisturbed.

11. In 'Ankush Shivaji Gaikwal vs. State of Maharashtra', 2013

(6) SCC 770, the Supreme Court emphasized that victim is not to be

forgotten in criminal justice system and Section 357 Cr.P.C. should be

read as imposing mandatory duty on the Court to apply its mind to the

question of awarding compensation in every case. The appellants have

informed the Court that Jai Bhagwan has since expired. Accordingly, A-

1, A-2 and A-3 are directed to deposit ` 40,000/-, ` 40,000/- and `

20,000/- respectively as compensation before the Trial Court within

fifteen days. The Trial Court shall issue notice to Jai Bhagwan's widow to

receive the compensation and in case of her non-availability, the amount

would be disbursed to his sons and daughters in equal proportions.

12. A-1 and A-2 are directed to surrender before the Trial Court

on 02.12.2013 to serve the remaining period of sentence. The Registry

shall transmit the Trial Court records forthwith. The appeals stand

disposed of in the above terms.

(S.P.GARG) JUDGE NOVEMBER 25, 2013/tr