Nasiruddin @ Guddu vs State
2014 Latest Caselaw 2071 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : April 01, 2014
                                 DECIDED ON : April 25, 2014

+                      CRL.A. 372/2011 & Crl.M.B.No.599/2014

       NASIRUDDIN @ GUDDU
                                                             ..... Appellant
                           Through : Mr.Rajesh Kumar, Advocate with
                                     appellant produced in judicial
                                     custody.

                           versus

       STATE
                                                         ..... Respondent
                           Through : Mr.Lovkesh Sawhney, APP for the
                                    State.
                                    SI Kanhaiya Lal, PS Maurya Enclave.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Nasiruddin @ Guddu impugns a judgment

dated 28.09.2010 of learned Additional Sessions Judge-II (North-West) in

Sessions Case No.1076/2009 arising out of FIR No.100/2008 registered at

Police Station Maurya Enclave by which he was convicted under Section

307/34 IPC. By an order dated 08.10.2010, he was sentenced to undergo

RI for ten years with fine `5,000/-.

2. Briefly stated the prosecution case, as emerged in the charge-

sheet, was that on 18.11.2008 at about 10.00 p.m. near Prembadi Pul,

Singhalpur Nehar, Delhi, he and his associate Akhilesh (since proclaimed

offender) in furtherance of common intention inflicted injuries to Sunny

Kumar and Nand Kishore by a knife in an attempt to murder. The police

machinery was set into motion when an information about the incident

was conveyed by PW-12 (HC Jogender), posted as duty officer at BJRM

hospital and DD No.3A (Ex.PW-4/A) was recorded at 12.30 night at

police station Maurya Enclave. It records that Sunny Kumar was admitted

by PCR in injured condition. The investigation was assigned to HC

Bharat Lal who with Ct.Surendera Pratap went to the spot. The

Investigating Officer lodged First Information Report after recording

Sunny Kumar's statement (Ex.PW-1/A). Statements of witnesses

conversant with the facts were recorded. On 14.03.2009, the appellant

was arrested at the pointing out of the complainant-Sunny Kumar.

Efforts were made to find out Akhilesh but to no effect and he was

declared proclaimed offender. After completion of investigation, a

charge-sheet was submitted against the appellant; he was duly charged;

and brought to trial. The prosecution produced 14 witnesses to establish

the charge. In 313 statement, the appellant denied his involvement in the

crime and pleaded false implication. He did not examine any witness in

defence. The trial resulted in his conviction as aforesaid. Being aggrieved

and dissatisfied, the appeal has been filed.

3. I have heard the learned counsel for the parties and have

examined the record. The occurrence took place at round 10.00 pm on a

trivial issue when the appellant and his associate Akhilesh demanded a

match box from the victims and on their refusal, picked up a quarrel with

them. When they objected to it, they both were inflicted injuries. The

victim-Sunny Kumar was taken to BJRM hospital by PCR and was

medically examined by MLC (Ex.PW-2/A). Nature of injuries were

opined as 'grievous'. The MLC records the arrival time of the patient at

around 12.20 am brought by PCR official HC Surender. It records the

alleged history of 'physical assault'. Multiple injuries were found on the

vital organ of the patient. In his statement made to the police at the first

available opportunity, the complainant disclosed the detailed account as to

how and under what circumstances, he had a confrontation with the

appellant and his associate and on their refusal to give match box on

demand, they were beaten and injuries were caused on their bodies.

When their neighbour Maqbool Ali arrived at the spot; he informed PCR

and the assailants fled the spot. The complainant claimed to identify the

assailants and described their proximate age. While appearing as PW-1,

Sunny Kumar proved the version given to the police at the first instance

without any variation or improvement. He identified the appellant-

Nasiruddin @ Guddu and attributed a specific role to him in the incident.

He deposed that when they expressed their inability to give match box,

they were abused and manhandled by the appellant and his associate.

Thereafter, Akhilesh took out a knife from his pocket and attacked Nand

Kishore on chin as a result of which he fell down in the canal.

Thereafter, the appellant caught hold of him from behind and his associate

gave knife blows on his back and chest. The accused also attempted to hit

him on abdomen but he saved the attack by putting hands over it. They

were also given beatings with leg and fist blows. In the cross-

examination, he denied the suggestion that a quarrel had taken place only

with Akhilesh and not with Nasiruddin. The witness volunteered to add

that initially the absconding accused had hurled abuses upon him and

thereafter Nasiruddin @ Guddu also started supporting him. He fairly

admitted that at the time of occurrence, he was not aware of the name of

the assailants. Apparently, despite searching cross-examination, no

material discrepancy could be elicited or extracted to disbelieve the

version given by the injured witness. No ulterior motive was assigned to

the witness for falsely implicating the accused with whom he had no prior

acquaintance or animosity. The complainant, who had sustained

'grievous' injuries by sharp object on his vital organs was not expected to

spare the real assailant and to falsely implicate an innocent one.

Statement of the complainant is in consonance with medical evidence.

PW-2 (Dr.Neeraj Choudhary) proved the MLC (Ex.PW-2/A) by which

Dr. Vadhesh medically examined the patient. PW-5 (Dr.Sanjay Kumar)

stated that on examination by Dr. Samir, SR (Ortho.), stab wound on chest

was found. The patient was having difficulty in breathing and blood was

oozing out. The patient was referred to Hindu Rao hospital for treatment.

He also proved Nand Kishore's MLC (Ex.PW-5/B). The nature of injury

was 'simple' as given PW-6 (Dr.Mohd.Shakeel). These witnesses were

not cross-examined. The opinions regarding nature of injuries given by

them have remained unassailled. PW-8 (Maqbool Ali) corroborated the

complainant's version and deposed that on 18.11.2008 at about 10.30 pm

when he was going towards Nahar, Prem Bari, he saw Sunny in injured

condition. He called PCR van who took Sunny to BJRM hospital. He

was not cross-examined by the appellant. PW-9 (Nand Kishore) also

supported the complainant to the extent that two individuals had caused

injuries to him and Sunny by a knife. He was, however, unable to identify

the appellant as one of the assailants as it was dark that time. The

statement of hostile witness can be considered to the extent it supports the

prosecution version. Efforts were made to find the culprits but they were

untraceable. After three and a half months of the incident, the

complainant identified the appellant and informed the police. Thereafter,

the appellant was arrested in this case though his associate Akhilesh

remained untraceable and was declared proclaimed offender. Material

facts proved on record by the complainant in his ocular testimony coupled

with medical evidence remained unchallenged. In the cross-examination,

the appellant did not give plausible explanation to the incriminating

circumstances. In 313 statement, he did not specify a particular date when

he was lifted from his house and was implicated in this case. The

impugned judgment is based upon fair appraisal of the evidence and needs

no interference.

4. The appellant was awarded RI for ten years with fine

`5,000/-. Nominal roll dated 19.03.2014 reveals that he had remained in

custody for about four years, eleven months and twelve days. He also

earned remission for one year, four months and four days. He was

granted interim bail twice and there are no allegations if he misused the

liberty or indulged in any criminal activity. Sentence order records that

the convict was a young boy of 21 years. He was illiterate and was a car

mechanic by profession. During the pendency of the appeal, he lost his

father and was granted interim bail to perform certain rituals. The role

attributed to the appellant is that he felicitated his co-associate Akhilesh in

committing the crime while catching hold of the victim from behind. The

appellant was not armed with any 'deadly' weapon at the time of incident

which had taken place all of a sudden in a spur of moment on a trivial

issue. Considering these mitigating circumstances, the sentence order is

modified and the substantive sentence of the appellant to undergo RI for

ten years is reduced/altered to RI for seven years. Other terms and

condition of the sentence are left undisturbed.

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

Crl.M.B.599/2014 also stands disposed of. Trial Court record be sent

back forthwith along with the copy of this order.

(S.P.GARG) JUDGE April 25, 2014/sa