Arvind Kumar vs State (Nct Of Delhi)
2014 Latest Caselaw 957 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 20th FEBRUARY, 2014
                              DECIDED ON : 21st FEBRUARY, 2014

+                        CRL.A. 445/2011

       ARVIND KUMAR                                     ..... Appellant
                         Through :   Mr.Govind Narayan Kaushik,
                                     Advocate with Mr.S.P.Verma,
                                     Advocate.

                         VERSUS

       STATE (NCT OF DELHI)                          ..... Respondent
                     Through :       Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. Arvind Kumar (the appellant) is aggrieved by a judgment

dated 18.01.2011 in Sessions Case No. 66/09 arising out of FIR No.

958/04 PS Uttam Nagar by which he was convicted for committing

offence punishable under Section 307 IPC and by an order on sentence

dated 19.01.2011, was awarded RI for seven years with fine ` 10,000/-.

2. Allegations as described in the charge-sheet were that on

05.11.2004 at about 06.30 A.M., Old Palam Road, in front of Prince

Electrical, Kakrola, Uttam Nagar, Delhi, the appellant - Arvind Kumar

inflicted injuries to Shadab by firing at him with a country-made pistol.

The Investigating Officer, after recording Shoaib Zameer's statement

(Ex.PW-7/A), lodged First Information Report. On 06.11.2004, the

accused was apprehended and pursuant to his disclosure statement,

country-made pistol with cartridges was recovered from his residence.

Statements of the witnesses conversant with the facts were recorded. After

completion of investigation, a charge-sheet was filed against the accused;

he was duly charged and brought to trial. In 313 statement, he denied

complicity in the crime and alleged false implication as he had intervened

in an altercation between the victim and his neighbourer Shambhu. He did

not prefer to examine any witness in defence. The trial resulted in his

conviction as aforesaid.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the testimonies of interested witnesses without

independent corroboration. The accused had no intention to murder the

victim as only single shot was fired though he had allegedly more

cartridges in his possession. Recovery of the country-made pistol at his

instance is suspect and he was acquitted under Sections 25/27 Arms Act

by the Court. Learned Addl. Public Prosecutor urged that lapse on the part

of the Investigating Officer to obtain sanction under Section 39 of the

Arms Act led to his acquittal under Sections 25/27 Arms Act. The injuries

sustained by the victim were 'dangerous' in nature.

4. In statement (Ex.PW-7/A) which formed the basis of

registration of First Information Report victim's brother - Shoaib Zameer

gave detailed account of the occurrence. He described as to how and

under what circumstances, the accused Arvind Kumar who was coming

from the opposite side on a bicycle signalled his brother - Shadab driving

motorcycle bearing No. DL-1SP-1866 on which he was sitting as pillion

to stop and fired on his chest and inflicted injuries to him. The occurrence

took place at about 06.30 A.M. when the victim and his brother - Shoaib

Zameer were going to their duties on the motorcycle. Daily Diary (DD)

No. 44 (Ex.PW-5/A) was recorded at 06.40 A.M. on getting information

that an individual has been shot. Another Daily Diary (DD) No. 45

(Ex.PW-5/B) was recorded at 07.20 A.M. when Duty Const. Yashpal

from DDU hospital informed regarding admission of Shadab due to bullet

injury in injured condition by his father. MLC (Ex.PW-8/A) records the

arrival time of the patient at DDU hospital at 07.15 A.M. Apparently,

there was no delay in putting the police machinery into motion and the

First Information Report was lodged in promptitude. In the statement

(EX.PW-7/A), the appellant was specifically named for firing the shot.

While appearing as PW-1, the victim fully proved the version recorded in

Ex.PW-7/A and implicated the appellant for inflicting injuries to him by

firing at him with a country-made pistol. In the cross-examination, the

complainant admitted that the occurrence took place at a distance of about

half kilometre from his house. His brother did not chase the accused or

made efforts to catch hold of him. He denied the suggestion that due to his

closeness with Sanju's sister, he had an altercation with him and the

accused had intervened at that time. He denied the suggestion that

someone else had fired at him and he could not recognise the said

assailant. Needless to say, injuries sustained by the victim are not under

challenge. The accused lived in the vicinity of the victim and was known

to him by face. He identified and recognised him as the assailant who had

fired at him. There are no sound reasons to disbelieve the version narrated

by the witness who had got injuries 'dangerous' in nature on his vital

organ. He was not expected to spare the real offender and to falsely

implicate an innocent one without any cogent reasons. PW-7 (Shoaib

Zameer), his brother, has corroborated his testimony on all material facts.

He also attributed specific role to the accused when he took out the katta

from his dub and fired at his brother stating that he would not spare him.

He further deposed that he took his brother to the house and from their

house, he and his father took him to DDU hospital where his statement

(Ex.PW-7/A) was recorded. He also proved recovery of the country-made

pistol and four cartridges at the instance of the accused pursuant to his

disclosure statement from his house after his arrest. In the cross-

examination, no material discrepancies or contradictions could be elicited

to doubt the version of the witness. PW-2 (Zameer Ahmed), victim's

father, was not a witness to the incident. He supported their version to the

extent that he had taken the victim to DDU hospital. No ulterior motive

was assigned to PW-1 and PW-7 for implicating the accused falsely. In

the absence of prior ill-will or enmity, these independent witnesses had no

extraneous consideration to fake the incident to falsely rope in the

accused. Their testimony is in consonance with medical evidence. PW-8

(Dr.Uday Kumar Singh) medically examined Shadab on 05.11.2004 vide

MLC (Ex.PW-8/A). He was of the view that he injury was caused by a

fire-arm. The details of the entry and exit wounds were mentioned in the

MLC. In the cross-examination, he did not rule out that the shot was fired

from short distance. PW-14 (Dr.Uday Kumar Singh) again appeared and

proved opinion on MLC (Ex.PW-8/A) given by Dr.Vinod as 'dangerous'.

PW-13 (Dr.Shaifali Jain) on seeing the X-ray report (Ex.PW-13/A)

informed that there was fracture of 8th and 9th ribs of left side. It has come

on record that there was no previous history of hostile relations between

the appellant and the victim. The prosecution could not collect evidence to

find out the clear underlying motive of the appellant to fire at him.

However, that does not discredit the otherwise cogent and reliable

testimony of the victim and his brother - PW-7 (Shoaib Zameer). It is well

settled that merely because motive is neither alleged nor proved, the same

would ipso facto not affect the prosecution case. The absence of any

evidence on the point of motive cannot have any such impact so as to

discard the other reliable evidence available on record which un-erringly

establishes the guilt of the accused.

5. Recovery of the crime weapon pursuant to the disclosure

statement of the accused is another incriminating circumstance connecting

him with the crime. The accused did not give plausible explanation to the

incriminating circumstances appearing against him. In 313 statement, he

merely alleged that he was falsely implicated as he had intervened in an

altercation between the victim and one Shambhu. The accused, however,

did not give detailed particulars as to when, where and in what manner the

said altercation had taken place. He even did not examine Shambhu with

whom the alleged altercation took place. For a minor incident regarding

intervention of the appellant in any altercation, the victim is not expected

to let the real culprit go scot free. The defence deserves outright rejection.

Acquittal of the accused under Sections 25/27 Arms Act is of no

consequence as it was due to technical reason when the Investigating

Officer did not obtain mandatory sanction under Section 39 of the Arms

Act. The findings of the Trial Court are based upon fair appraisal of the

evidence and needs no interference. Conviction of the appellant under

Section 307 IPC is sustained.

6. Nominal roll dated 11.08.2011 reveals that the appellant has

suffered custody for 09 months and 01 day besides remission for 02

months and 15 days as on 10.08.2011. The custody period has since been

increased to more than 03 years and 04 months. The appellant has clean

antecedents and was not involved in any other criminal case. His overall

jail conduct is satisfactory. There was no enmity between the parties

forcing the appellant to eliminate the victim. The prosecution was unable

to find out the reasons for the appellant to fire at the unarmed victim. It is

informed that the appellant was aged about 25 years. His family consists

of his parents, younger brother and sister. He has suffered the ordeal of

the trial / appeal for 10 years. Considering these mitigating circumstances,

the sentence order is modified and the substantive sentence of the

appellant is reduced to 05 years. Other terms and conditions of the

sentence order are left undisturbed.

7. The appeal stands disposed of in the above terms. Trial Court

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

order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE FEBRUARY 21, 2014/tr