Suresh vs State
2014 Latest Caselaw 231 Del

R-3B
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment:13.01.2014

+                    CRL.A 581/2000

SURESH                                     ...Appellant
                     Through:   Mr.Yogesh Chaudhary, Advocate.

                     Versus
STATE                                      ...Respondent
                     Through:   Ms.Fizani Hussain, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The present appeal has been directed against the impugned

judgment and order of sentence dated 17.8.2000 and 19.8.2000 whereby

the appellant had been convicted under Sections 307 and 354 of the IPC

as also under Section 27 of the Arms Act. He had been sentenced to

undergo rigorous imprisonment for a period of three years and to pay a

fine of Rs.100/- in default of payment of fine to undergo rigorous

imprisonment for one month under Section 27 of the Arms Act; for the

offence under Section 307 of the IPC he had been sentenced to undergo

rigorous imprisonment for one year and to a fine of Rs.500/- in default

of payment of fine to undergo rigorous imprisonment for three months

and for the offence under Section 354 IPC he had been sentenced to

undergo rigorous imprisonment for six months. All the sentenced were

to run concurrently.

2 The FIR was registered on the statement of Budh Ram (PW-11).

As per his version on the fateful day i.e. on 21.4.1989 at about 8.30 P.m.

while his sister Geeta (PW-1) had gone to fetch water accused Suresh

met her there; he caught hold of her, embraced her and tried to kiss her.

PW-1 shouted. Their neighbour brother Mangey Ram (PW-2), Munni

Lal (PW-3), Hakum Chand (PW-4) reached there. PW-11 was also

present. Accused left the spot threatening the complainant party that he

would return. After about 15 minutes i.e. at about 8.45 p.m. when all

the aforenoted persons were standing outside the house of Khushi Ram

the accused came to the spot armed with pistol and fired on the

complainant party. The firing hit PW-11 on his right shoulder; he got

injured. The injuries were grievous in nature. MLC of Budh Ram was

prepared by Dr.P.K.Suneja (PW-17). It was proved as Ex.PW-13/A

which was prepared by PW-17 whose signature and hand writing were

identified by the Record Clerk PW-13. Dr.P.K.Suneja was also

examined as PW-17. He deposed that oval shape wound of size 1 c.m. x

0.5 c.m. noted in the MLC Ex.PW-13/A was the result of a bullet injury.

The accused was apprehended at the spot. Police was informed by

PW-3. His personal search was taken by constable Bhim Sain (PW-10)

and he was formally arrested. Constable Raj Pal (PW-14) was the

Investigating Officer under the Arms Act. He seized the pistol from

PW-3 which had been produced before him; it was found to be in a

working order; it contained one live and one empty cartridge. Sketch of

the pistol Ex.PW-2/A was prepared. The pistol and the cartridges were

sealed in separate pullandas and taken into possession vide memo

Ex.PW-2/B.

3 This was the gist of the version of the prosecution.

4 In the statement of the accused recorded under Section 313

Cr.P.C. he pleaded innocence. His explanation was that injured Budh

Ram used to deal in heroin and when this was objected to by the accused

he was told by Budh Ram that he would be taught a lesson; PW-1 had

deposed against him at the behest of Budh Ram.

5      No evidence was, however, led in defence.

6      On behalf of the appellant, arguments have been addressed in

detail. It is pointed out that apart from PW-1 all other witnesses i.e.

PW-2, PW-3, PW-4 and PW-11 have not supported the version of the

prosecution; they were declared hostile by the public prosecutor. No

reliance can be placed upon such conflicting versions. Attention has

been drawn to their versions wherein all of them except PW-11 have

stated that Budh Ram had sustained injuries on his left shoulder whereas

the medical evidence is to the effect that it was on the right shoulder of

Budh Ram that he had sustained a bullet injury. It is pointed out that the

accused had been falsely implicated. On the point of sentence it is

stated that the sentence is too harsh and the sentence of three years for

the offence under Section 27 of the Arms Act clearly calls for an

interference.

7 Arguments have been refuted by the learned public prosecutor. It

is pointed out that the order of sentence has already shown leniency and

for the offence under Section 307 of the IPC only one year rigorous

imprisonment has been imposed. On no count does the impugned order

of conviction or order of the sentence call for interference.

8 Star witness of the prosecution is PW-1. She is Geeta. She is the

sister of P-11. She was the witness who was examined in the first

instance. She has fully supported the case of the prosecution both in her

examination-in-chief as also in her cross-examination. She deposed that

on the fateful day i.e. on 21.4.1989 when she had gone to fetch water

from the hand pump accused came after her; after he had had water, he

hold of her, embraced and tried to kiss her; she shouted whereupon

PW-2, PW-3 and PW-4 reached the spot. Accused went away and after

some time he again came back at the place of occurrence. He was

armed with a pistol; he fired upon PW-2, PW-3, PW-4 and PW-11.

PW-11 sustained injuries on his left shoulder.

9 In her cross-examination, she admitted the police reached the spot

after sometime. In her one paragraph cross-examination nothing has

been elicited which could dislodge her this version.

10 PW-2 was Mangey Ram. He had fully supported the version of

the prosecution in his examination-in-chief. His cross-examination was

deferred, it was conducted 8 years later. At that stage he had resiled

from his earlier statement. He thereafter gave evasive answers. He

denied the suggestion that he was deposing falsely as he was won over

by the accused.

11 PW-3 (later on inadvertently cross-examined as PW-7) also

supported the version of the prosecution in his examination-in-chief.

This was in October, 1990. His cross-examination was recorded in

1999; at this stage he did not support the version of the prosecution and

had resiled from his earlier statement.

12 So also PW-4 who was initially supportive of the version of the

prosecution in his examination-in-chief which has been conducted in

1990 but in 1999 when he appeared for his cross-examination he has

resiled from his earlier statement.

13 PW-11 was the injured Budh Ram. He spoke of a quarrel which

took place 4-5 years ago but did not name or identify the accused. This

witness has been examined in the year 1999. He, however, admitted

that he had sustained injury on his right shoulder and had been

medically examined.

24 Trite it is to say that law on hostile witness is clear. If a hostile

witness has toed the line of the prosecution and has supported his

statement recorded under Section 161 Cr.P.C. in his examination-in-

chief and if when cross-examined several years later (as is in this case

where the witnesses had been examined 8 years after their examination

was recorded) it largely appears to be a case where the witnesses have

been won over. It is not their stand that they did not come into the

witness box when their examination-in-chief was recorded. In fact there

appeared to be ample evidence before the trial judge to have proceeded

against the said witnesses under Section 340 Cr.P.C. for making false

statement on oaths. Admittedly one of the two statements i.e. either the

statement in the examination-in-chief or the statement in the cross-

examination was correct and one was false.

25 It is also not that the testimony of a hostile witness is washed off

completely. To the extent it is supportive of the version of the

prosecution, it can be relied upon. In (2012) 4 SCC 327 Bhajju @

Karan Singh v.State the Apex Court has held as follows:

"We may notice, at this stage that the court can even take into consideration the part of the statement of a hostile witness which supports the case of the prosecution. Therefore, it cannot be said that whenever prosecution witnesses are declared hostile, it must prove fatal to the case of the prosecution."

26 Be that as it may, even presuming that the statement of

PW-2, PW-3, PW-4 and PW-11 are to be ignored; testimony of PW-1

who was the victim of the charge under Section 354 IPC is clear and

categorical. She has been coherent and credible in her version. It is also

not in dispute that the investigation was set into motion by the

prosecution on the statement of PW-11. The rukka was sent on this

statement of PW-11. The medical evidence which is the injury on the

right shoulder of PW-11 also shows that it was a result of a bullet injury.

The pistol was handed over by Mange Ram (PW-3) to the Investigating

Officer. This had been recovered on the spot. Accused had also been

apprehended at the spot.

27 Eye witness account of PW-1 coupled with the medical evidence

of PW-11 i.e. his MLC Ex. PW-13/A as also the recovery of the pistol

which was seized vide memo Ex.PW-2/B clearly shows that the

offences for which appellant has been convicted call for no interference.

The accused has been rightly convicted for the offence under Section

307, 354 of the IPC as also for having used an unlicenced weapon for

which he has been convicted under Section 27 of the Arms Act.

28 The appellant is presently on bail. His nominal roll has been

called. This shows that he has already undergone incarceration for a

period of one month and 12 days. The fact that he is married and has

got a family to support is noted. His wife is also present in the court; he

has two children. He is pleading for mercy.

29 Keeping in view the fact that the offence relates to the year 1989

and the date since when the appellant had been enlarged on bail he has

not misused this process of law; it is a fit case for reduction of his

sentence. The maximum sentence imposed by the impugned judgment

is 3 years for the offence under Section 27 of the Arms Act. The

sentence is reduced to one year rigorous imprisonment. The court has

been informed that the fine amount has been paid. Other sentence of

one year rigorous imprisonment imposed under Section 307 of the IPC

and six months rigorous imprisonment for the offence under Section 354

IPC do not call for interference. All these sentences are to run

concurrently.

30 Appellant is taken into custody to suffer the remaining sentence.

31      Appeal is disposed of in the above terms.



                                             INDERMEET KAUR, J

       JANUARY 13, 2014
       ndn