Faisal vs State
2014 Latest Caselaw 999 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 14th FEBRUARY, 2014
                             DECIDED ON : 24th FEBRUARY, 2014

+                         CRL.A. 1225/2012

       FAISAL                                             ..... Appellant

                          Through :    Mr.Sunil Kapoor, Advocate.


                          VERSUS

       STATE                                              ..... Respondent

                          Through :    Mr.M.N.Dudeja, APP.


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

S.P.GARG, J.

1. Faisal (the appellant), Mohd. Abid @ Kadir and Atif were

arrested by the police of PS Seelampur in case FIR No. 474/2008 and sent

for trial alleging that on 23.11.2008 at about 09.30 P.M. at shop no. C-

47/6, gali no. 11, Matkewali Gali, Chauhan Bangar, Delhi, they in

furtherance of common intention inflicted injuries to Rahisuddin by firing

at him in an attempt to murder him. Atif faced trial before Juvenile Justice

Board. Mohd.Abid @ Kadir expired during trial and proceedings against

him were dropped as abated. The Investigating Officer lodged First

Information Report after recording Waheed‟s statement (Ex.PW-6/A).

MLC of the victim was collected and the injuries were opined as

„grievous‟. After completion of investigation, a charge-sheet was filed and

the prosecution examined twelve witnesses. The trial resulted in

conviction of the appellant for committing offence under Section 307 IPC

and by an order on sentence dated 30.08.2012, he was awarded RI for

three years with fine ` 5,000/-. Being aggrieved and dissatisfied, he has

preferred the appeal.

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

examined the file. The occurrence took place at around 09.30 P.M. Daily

Diary (DD) No. 24A (Ex.PW-9/A) was recorded soon thereafter at PS

Seelampur on getting information from PCR about an individual to have

been fired at. The police machinery came into motion; the Investigating

Officer went to the spot with Const. Bitu Singh and came to know that the

injured had already been taken to GTB hospital. The Investigating Officer

recorded statement of Waheed (Ex. PW-6/A) who claimed to have

witnessed the occurrence. He implicated the accused persons for inflicting

injuries to his brother Rahisuddin. He also gave vivid description as to

how and under what circumstances, the occurrence took place when his

brother Rahisuddin demanded payment from the accused persons for the

food consumed by them. Since the First Information Report was lodged in

promptitude without any delay and specific role was attributed to each of

the assailants, there was least possibility of the complainant to fabricate a

false story. In his Court statement as PW-6 (Waheed) did not deviate from

the earlier version given to the police in the statement (Ex.PW-6/A) and

proved it in its entirety. He deposed that on 23.11.2008, he and his brother

Rahisuddin were present in the hotel. All the three accused persons came

to take dinner. When they demanded payment for the dinner, the accused

persons challenged them as to how they had dared to demand money from

them. They left without making payment extending threats to his brother.

After 5 or 7 minutes, they all came back to the hotel and started abusing

while standing outside. When his brother objected, Abid and Faisal (the

appellant) exhorted Atif to take out pistol and fire at him. Atif took out a

katta and fired at his brother on abdomen and they fled the spot. He took

his brother to GTB hospital where his statement (Ex.PW-6/A) was

recorded. In the cross-examination, he stated that his statement was

recorded only once in the police station on the same night. He explained

that one Shehnawaz had also accompanied them to hospital when the

victim was taken on the motorcycle. He was not aware as to who had

informed the police about the incident. He admitted that there were many

employees and customers present in the hotel at the time of occurrence.

He further admitted that there was no previous dispute between the victim

and the accused persons or their family members. He denied the

suggestion that somebody else had inflicted injury to Rahisuddin and the

accused persons were falsely implicated due to a previous altercation with

the victim over sharing of commission. Apparently, no ulterior motive

was assigned to the victim to falsely implicate the accused persons with

whom there was no prior animosity. Material facts deposed by the witness

remained unchallenged in cross-examination. PW-3 (Rahisuddin), the

victim, has fully corroborated the version given by his brother and has

implicated all the accused persons for inflicting injuries to him. He also

assigned specific motive to the accused persons to cause injuries as he had

demanded payment for the dinner taken by them in the hotel. He

specifically deposed that after about five minutes at about 09.30 P.M. the

accused persons came back to the hotel. Faisal (the appellant) and Abid

exhorted Atif, "Maar sale ke goli paise kaise maang rarha tha". Atif took

out a katta and fired at him on abdomen below chest. He further disclosed

that he remained hospitalized for 10 - 12 days. The bullet was taken out

from his body after operation. The witness was cross-examined at length

but no material discrepancies could be extracted or elicited to disbelieve

his version. The accused persons were known to him prior to the

occurrence as they lived at a distance of 40 - 50 paces from his hotel. He

disclosed that there was no previous enmity or dispute with any of the

accused persons regarding money transaction or property. He further

disclosed that no altercation ever took place between him and the accused

persons prior to the occurrence. He further stated that earlier also when

the accused persons had visited his hotel once or twice, the payment was

made by individuals accompanying them. He denied the suggestion that

there was any altercation regarding commission with Abid. The victim

who had sustained „grievous‟ injuries on the body was not expected to

falsely implicate an innocent and to spare the real offender. Non-

examination of any witness from the hotel does not discredit the cogent

and reliable testimonies of PW-3 (Rahisuddin) and PW-6 (Waheed). Their

statements are in consonance with medical evidence. PW-11 (Dr.P.Ram)

proved the MLC (Ex.PW-11/A) prepared by Dr.Sanjeev who medically

examined the victim Rahisuddin. On local examination, one entry wound

was seen at epigastric region of about 1 x 1 cm with charring. There was

no exit wound. PW-12 (Dr.D.Mohanty) proved endorsement (Ex.PW-

12/A) of Dr.Dharmender who after examining the record and MLC gave

final opinion regarding the nature of injuries as „grievous‟. PW-8 (Irshad

Ali) put the police machinery into motion when he made telephone call on

mobile No. 9811542292 at 100 to PCR. In the cross-examination, he

stated that Atif had caused gunshot injuries on the person of Rahisuddin.

He, however, stated that at that time, he had seen only Atif. The counsel

for the appellant tried to argue that Faisal (the appellant) and Atif were not

present at the spot. This fact was not stated so by PW-8 (Irshad Ali) in his

examination-in-chief. The prosecution did not treat him as an eye witness.

Counsel further pointed that Atif has since been acquitted by Juvenile

Justice Board. In my view, acquittal of co-accused Atif has no bearing in

the present case. The judgment of the said case has not been placed on

record to ascertain on what grounds Atif was acquitted. In the instant case,

the evidence of the victim coupled with statement of PW-6 (Waheed)

supported by medical evidence has established the guilt of the accused

beyond reasonable doubt. PW-3 (Rahisuddin) and PW-6 (Waheed) did not

claim if the appellant was armed with any weapon. The only role assigned

to him is that he (the appellant) and Abid exhorted Atif to fire. All the

accused persons had come together to take dinner. None of them had

offered payment for the dinner and they all left threatening the

complainant / victim for demanding payment from them. After 5 or 7

minutes, they all returned and confronted the victim for demanding money

from them. On the exhortation of the appellant and Abid, Atif fired at him.

They all fled the spot together. These circumstances show that all of them

shared common intention which can develop at the spur of the moment.

Injuries were caused by a deadly weapon on the vital organ of the victim.

He had to be operated upon and remained hospitalized for 10 - 12 days.

At the time of his appearance before the Court, he had a belt fixed on his

abdomen. He disclosed that he was unable to perform his duties for about

three and a half months due to the injuries. Apparently, the injuries were

inflicted to the victim with the avowed object or intention to murder him.

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

evidence and warrant no interference.

3. Appellant‟s counsel in the alternative prayed to modify the

sentence order as the appellant is not involved in any other criminal case

and has suffered detention for about two years. Nominal roll dated

07.12.2013 reveals that the period in custody was one year, five months

and twenty three days besides remission for two months and five days as

on 07.12.2013. Nominal roll further reveals that the appellant is involved

in FIR No. 117/12 under Sections 302/506/120B/34 IPC and 25/27 Arms

Act PS Jafrabad. His overall jail conduct is unsatisfactory. He got

punishment by ticket no. 171 dated 06.04.2013 due to a quarrel with other

inmate which shows his violent nature. The injuries were caused to the

victim without any fault of his when he demanded his legal dues for

serving dinner. The appellant deserves no leniency.

4. The appeal preferred by the appellant is unmerited and is

dismissed. Trial Court record be sent back immediately with the copy of

the order. Copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE FEBRUARY 24, 2014/tr