Muslim @ Salim vs The State (Nct Of Delhi)
2014 Latest Caselaw 912 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 23rd JANUARY, 2014
                                  DECIDED ON : 19th FEBRUARY, 2014

+             CRL.A. 1477/2011 & CRL.M.B.No. 2088/2011

       MUSLIM @ SALIM                                       ..... Appellant

                            Through :      Ms.Nandita Rao, Advocate.


                            VERSUS

       THE STATE (NCT OF DELHI)                             ..... Respondent

                            Through :      Mr.Lovkesh Sawhney, APP.

                                RESERVED ON : 18th FEBRUARY, 2014
                                DECIDED ON : 19th FEBRUARY, 2014

+             CRL.A. 34/2013 & CRL.M.B.No. 52/2013

       KAFIL AHMAD                                          ..... Appellant

                            Through :      Mr.Ravi Chaturvedi, Advocate.

                            VERSUS

       THE STATE (NCT OF DELHI)                             ..... Respondent

                            Through :      Mr.Lovkesh Sawhney, APP.



AND




CRL.A.Nos. 1477/2011 & connected appeals                        Page 1 of 9
                                 RESERVED ON : 18th FEBRUARY, 2014
                                DECIDED ON : 19th FEBRUARY, 2014


+             CRL.A. 641/2013 & CRL.M.B.No.1005/2013

       AMIT                                                ..... Appellant

                            Through :      Mr.Anwesh Madhukar, Advocate.

                            VERSUS

       STATE (GOVT. OF NCT) OF DELHI                       ..... Respondent

                            Through :      Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. Challenge in these appeals is to a judgment dated 03.08.2011

of learned Addl. Sessions Judge in Sessions Case No. 99/10 arising out of

FIR No. 1012/07 PS Sangam Vihar by which Muslim @ Salim (A-1),

Kafil Ahmad (A-2) and Amit (A-3) were held perpetrators of the crime

under Sections 398/308/34 IPC and awarded RI for seven years with fine

` 3,000/-, each under Section 398 IPC; RI for three years with fine `

2,000/-, each under Section 308 IPC by an order dated 17.08.2011. The

substantive sentences were to operate concurrently. Allegations against

the appellants as detailed in the charge-sheet were that on 23.10.2007 at

about 02.45 A.M. in front of house No. 1007, C- Block, Sangam Vihar,

they in furtherance of common intention while armed with deadly

weapons robbed Laxmi Narain and inflicted injuries to him. The police

machinery swung into action on receipt of Daily Diary (DD) No. 59A

(Ex.PW-11/A) at PS Sangam Vihar. The investigation was marked to HC

Ali Mohammad who with Const. Kamal went to the spot and came to

know that the victim had already been taken to AIIMS. The Investigating

Officer, after recording statement of Laxmi Narain (Ex.PW-5/A), lodged

First Information Report. PW-2 (HC Suresh Tomar) recorded the First

Information Report (Ex.PW-2/A). During investigation, statements of the

witnesses conversant with the facts were recorded. The accused persons

were apprehended and arrested in case FIR Nos. 1059/07, 1060/07 and

1061/07 under Section 25 Arms Act, PS Nihal Vihar. Pursuant to

disclosure statements, their involvement in the instant case surfaced. They

participated in the Test Identification Proceedings and correctly identified

by the complainant. After completion of investigation, a charge-sheet was

filed against all of them; they were duly charged and brought to trial. The

trial resulted in their conviction.

2. The occurrence took place in the night intervening

22/23.10.2007 at around 02.45 A.M. The information to the police was

conveyed regarding the incidence at 04.07 A.M. and Daily Diary (DD)

No. 59A (Ex.PW-11/A) was recorded. The Investigating Officer recorded

statement of the complainant - Laxmi Narain (Ex.PW-5/A); made

endorsement (Ex.PW-11/A) over it and sent rukka for registration of the

FIR at 05.30 A.M. PW-3 (Parmeshwar Yadav), PW-4 (Subhash Tyagi)

and PW-6 (Umesh Kant), who lived in the neighbourhood of the victim,

arrived at the spot on hearing the noise and found Laxmi Narain in an

injured condition. They took him to AIIMS. MLC (Ex.PW-15/A) records

the arrival time of the patient at AIIMS at 04.09 A.M. with the alleged

history of assault; stab injury. Apparently, there was no delay in lodging

the police report. In the statement (Ex.PW-5/A), the complainant gave

detailed account of the occurrence as to how and under what

circumstances injuries were inflicted to him by four assailants armed with

various weapons. In his Court statement, the complainant proved the

version given to the police at the earliest available opportunity and

identified the appellants as the assailants who had caused injuries to him

with various weapons in their possession. In the cross-examination, no

ulterior motive was assigned for implicating the appellants with whom he

had no prior acquaintance or animosity. The accused persons were unable

to extract any material discrepancy to disbelieve his version. Injuries

sustained by the victim remained unchallenged in the cross-examination.

The witness not only identified these appellants in the Court but also

identified them in Test Identification Proceedings conducted at Tihar jail

by PW-13 (Mr.Sanjay Bansal), Addl. Chief Metropolitan Magistrate. The

Test Identification Proceedings (Ex.PW-13/B, Ex.PW-13/C and Ex.PW-

13/D) reveal that the complainant was able to identify correctly all the

assailants. There is no substance in the plea of the appellants' counsel that

the complainant was shown the photographs prior to holding of the Test

Identification Proceedings. No such plea was taken by the appellants

when they readily agreed to join the Test Identification Proceedings.

Nothing has come on record as to when and where the complainant had

seen the appellants in the police station. The complainant categorically

asserted that the photos of the accused persons were shown to him after

the Test Identification Proceedings. There is no valid or sound reasons to

disbelieve the testimony of the witness who had sustained injuries at odd

hours near his residence. The accused persons did not explain the specific

reason / purpose for their presence at odd hours near the residence of the

complainant. They did not offer plausible explanation to the incriminating

circumstances proved against them in 313 statements.

3. There is no conflict between the ocular and medical

evidence. The prosecution examined PW-15 (Dr.Ram Karan Chaudhary)

who proved the MLC (Ex.PW-15/A) prepared by Dr. Avinash Prakash.

He identified his handwriting and signatures on the basis of medical

record. The nature of injuries given 'simple' caused by sharp object was

not questioned in the cross-examination. PW-18 (Dr.B.L.Chaudhary) gave

detailed opinion (Ex.PW-18/A) and was of the view that the injuries

mentioned in the MLC were possible with the knives shown to him. He

also stated that the cut marks on the clothes produced before him were

possible with the said weapons. The prosecution was able to prove that the

appellants in furtherance of common intention inflicted injuries to the

complainant.

4. Regarding conviction of the appellants under Sections

398/308 IPC, there was no sufficient evidence to infer that injuries to the

victim were inflicted in an attempt to commit robbery. The complainant in

his statement (Ex.PW-5/A) did not disclose if any of the assailants had

robbed any valuable article from his possession or that they had directed

or commended him to hand-over any article in his possession. When he

was being beaten, the complainant, on his own, offered to hand-over

whatsoever he had, to the assailants. Even after infliction of injuries, no

attempt was made by any of the assailants to take out any article in

possession of the complainant. In his Court statement also the

complainant did not testify if at the time of initial confrontation, any of the

assailants had directed him to hand-over the article in his possession. He

himself requested the assailants not to give him beatings and he was ready

to give everything in his possession. Despite his offer, no article was

delivered to the assailants. Apparently, there was no delivery of any

property. Needless to say, the appellants had no motive to deprive the

complainant of any valuable article in his possession. It appears that a

scuffle took place when the complainant found the assailants present near

his house and challenged them. In the said scuffle, the assailants in

furtherance of common intention voluntarily caused injuries 'simple' in

nature by sharp weapon. Again, conviction under Section 308 IPC is not

sustainable as the prosecution was unable to prove beyond doubt that the

assailants had inflicted injuries with the avowed object or intention to kill

him. The complainant had no previous animosity with the assailants and

they were not known to each other. The presence of the complainant at the

spot was sudden and was not anticipated by the appellants. No repeated

blows with sharp weapons were inflicted on the vital organs of the

complainant. When taken to the hospital, he was quite conscious and

oriented and was not even hospitalized for any treatment. He was

discharged from the hospital after half an hour. The nature of injuries was

'simple'. The victim was unable to attribute specific role to each of the

assailants in the incident. He was also unable to give detailed account as

to which of the assailants was in possession of which specific weapon. He

did not attribute specific role to the each assailant in inflicting / causing

injuries to him. The prosecution miserably failed to prove ingredients of

Sections 398/308 IPC. The appellants were responsible for voluntarily

causing 'simple' hurt by sharp object to the victim and the offence proved

against them was under Sections 324/34 IPC.

5. A-1's nominal roll dated 13.11.2013 reveals that he has

suffered detention in this case for more than four years, three months and

eight days besides remission for one month and fifteen days as on

10.11.2013. A-2's nominal roll dated 11.12.2012 shows that he has

suffered custody for more than three years, nine months and nine days as

on 05.12.2012. A-3's nominal roll dated 25.09.2013 would show that he

has remained in custody for more than four years, three months and

seventeen days besides remission for one month and seventeen days as on

25.09.2013. The appellants have thus undergone substantial period of

substantive sentence awarded to them under Sections 398/308 IPC, the

offence for which they were not liable to be charged and prosecuted. The

period already suffered in custody by them is taken as substantive

sentence. No further sentence is required to be awarded to them in this

case. A-1 to A-3 are ordered to be released forthwith if not required to be

detained in any other case.

6. Appeals stand disposed of in the above terms. Pending

applications also stand disposed of as infructuous. Trial Court record be

sent back forthwith with the copy of the order. A copy of the order be sent

to Superintendent Jail for information.

(S.P.GARG) JUDGE FEBRUARY 19, 2014/tr