Gulshan Sharma & Ors. vs State Of Nct Of Delhi
2014 Latest Caselaw 292 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 9th DECEMBER, 2013
                               DECIDED ON : 16th JANUARY, 2014

+                         CRL.A. 397/2003

       GULSHAN SHARMA & ORS.                  ....Appellants
               Through : Mr.R.K.Thakur, Advocate with
                         Mr.B.Mishra, Advocate.

                                 versus

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

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

S.P.GARG, J.

1. Gulshan Sharma (A-1), Harish Sharma (A-2) and Kamni

Sharma (A-3) challenge the legality and correctness of a judgment dated

03.03.2003 of learned Addl. Sessions Judge in Sessions Case No. 41/00

arising out of FIR No. 543/00 PS Rajouri Garden whereby they were

convicted for committing offence punishable under Section 307/34 IPC.

By an order on sentence dated 05.03.2003, they were awarded RI for five

years with fine ` 5,000/-, each. The prosecution case as projected in the

charge-sheet is as follows :

2. On 01.06.2000, Rajeev Taneja had gone at the residence of

the accused persons to demand payment which A-1 had failed to pay

being member of the committee. A-3 alone was present in the house. PW-

11 (Rajeev Taneja) left the message with her and came back. A-1 and A-2

were resentful of Rajeev Taneja's visit to their house in their absence and

at about 06.00 P.M., they went to his house and threatened his mother. At

about 09.00 P.M. when both PW-11 (Rajeev Taneja) and his mother PW-2

(Sushma Taneja) were crossing in front of the house of the accused

persons, A-1 to A-3 caught hold of Rajeev Taneja and gave beatings to

him. At the instigation of A-3, A-1 took out a knife and inflicted injuries

to him (Rajeev Taneja). On his raising alarm, Vinod Kumar Taneja, his

brother arrived at the scene. The accused persons fled the spot. The police

machinery was set in motion when Daily Diary (DD) No. 27 (Ex.PW-1/A)

was recorded at 09.35 P.M. on getting information of a stabbing incident.

The investigation was entrusted to SI Vinay Malik who with

Const.Surinder went to the spot. Vinod took his injured brother to DDU

Hospital and admitted him. Daily Diary (DD) No. 28 (Ex.PW-1/B) was

recorded about his admission in the hospital. The Investigating Officer

lodged First Information Report after recording Sushma Taneja's

statement (Ex.PW-2/A). During the course of investigation, the accused

persons were arrested and crime weapon i.e. knife was recovered.

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

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

under Sections 307/201/34 IPC. The accused persons were duly charged

and brought to trial. The prosecution examined eighteen witnesses to

establish their guilt. In 313 statements, the accused persons pleaded false

implication and denied their complicity in the crime. On appreciating the

evidence and after considering the rival contentions of the parties, the

Trial Court, by the impugned judgment, held all of them guilty for the

offences mentioned previously. Being aggrieved, the appellants are in

appeal. It is significant to note that the accused persons were acquitted of

the charge under Section 201 IPC and the State did not prefer any appeal

challenging the said acquittal.

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

examined the record. Appellants' 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 the interested witnesses

without independent corroboration. The vital discrepancies and

improvements in the statements of the prosecution witnesses were ignored

without valid reasons. Ingredient of Section 307 IPC are not attracted and

proved. The prosecution was unable to examine the doctor who opined the

nature of injuries as 'dangerous'. MLC (Ex.PW-7/A) does not record the

nature of injuries. Appellants' counsel adopted an alternative argument to

release them in case of dismissal of their appeal for the period already

suffered in custody by them in this case. Learned Addl. Public Prosecutor

urged that the Trial Court's judgment is based upon fair appraisal of the

evidence and no interference is called for.

4. The occurrence took place at about 09.00 P.M. Daily Diary

(DD) No. 27 (Ex.PW-1/A) was recorded at Police Post Raghubir Nagar at

09.35 P.M. on getting information of stabbing at B-196, Raghubir Nagar.

Vinod Kumar Taneja took injured Rajeev Taneja to DDU Hospital soon

after the occurrence. At 09.50 P.M. Daily Diary (DD) No.28 (Ex.PW-1/B)

was recorded when duty Const.Kanwar Singh conveyed the information.

The Investigating Officer, after recording statement of the victim's

mother, sent rukka (Ex.PW-18/A) at 11.45 P.M. for registration of the

First Information Report. Apparently, there was no delay in lodging the

report with the police. In her statement (Ex.PW-2/A), Sushma Taneja at

the first available opportunity implicated the accused persons for the

injuries inflicted to her son Rajeev Taneja. She gave vivid detail of the

occurrence and attributed specific role to each of the accused in causing

injuries and also assigned motive for that. Since the FIR was lodged

without undue delay, there was least possibility of the complainant to

concoct a false story in a short interval. While appearing as PW-2, she

proved the version given to the police at the first instance without any

variation and specifically deposed that at about 09.00 P.M. when she and

her son were returning from AB - Block market and were crossing the

road in front of the house of the accused persons, they (the accused

persons) came out and caught hold of Rajeev Taneja and started beating

him with fists and leg blows. A-3 pulled his hair and instigated A-1 to

take revenge as he had tried to outrage her modesty. Thereafter, A-1 took

out a knife from his pocket and stabbed her son on his back shoulder and

thigh. In the cross-examination, she reiterated that A-1 took out a knife

from the backside of the pant. No public person was present at the spot at

the time of occurrence. She fairly admitted that there was no animosity

towards the accused persons. The material facts proved by the

complainant remained unchallenged in the cross-examination. The

accused persons were unable to extract any material discrepancy or

inconsistency in her version to disbelieve her. Her presence at the spot

was not challenged in the cross-examination. The accused persons did not

deny their presence at the spot. The role attributed to them was also not

questioned. Statement of the complainant has been corroborated in its

entirety without any variation by PW-11 (Rajeev Taneja) who deposed

that when they were crossing in front of the house, the accused persons

standing outside their house started beating and abusing them with fist and

blows. A-2 and A-3 pushed him down and A-1 pulled out a knife and

stabbed him on left leg and chest. In the cross-examination, no material

questions were put to challenge his testimony.

5. Both PW-2 (Sushma Taneja) and PW-11 (Rajeev Taneja) had

no previous enmity with the accused persons to falsely implicate them in

the incident. They lived in the same vicinity as neighbourers. A-1 and A-2

were members of the committee being run by PW-2 (Sushma Taneja). The

problem arose when PW-11 (Rajeev Taneja) went to A-1's house to

demand unpaid dues in his absence and left the message with his wife (A-

3) which annoyed the accused persons. In the absence of prior enmity or

animosity, the injured witness is not expected to let the real culprit go scot

free and to falsely implicate an innocent one. There are no sound reasons

to disbelieve their ocular testimony which is in consonance with medical

evidence. MLC (Ex.PW-7/A) was prepared when Rajeev Taneja was

taken to DDU Hospital at 09.55 P.M. on 01.06.2000 by his brother Vinod

Kumar Taneja. PW-7 (Dr.K.K.Kumra), CMO, DDU Hospital, identified

the handwriting and signatures of Dr.Amar Kumar on the MLC (Ex.PW-

7/A). He deposed that the injuries sustained by the victim were caused by

sharp weapon and were 'dangerous' in nature. His testimony remained

unchallenged in the cross-examination. The police was able to recover the

crime weapon i.e. knife (Ex.P1) used in the incident. As per Forensic

Science Laboratory report, human blood AB group which was of the

victim was detected on it. The prosecution was able to prove that the

accused persons were the author of the injuries caused to Rajeev Taneja.

6. A-1 is the actual assailant who inflicted repeated injuries with

a sharp edged weapon on the body of the victim Rajeev Taneja. The

prosecution was, however, unable to prove that A-2 and A-3 shared

common intention to inflict injuries to Rajeev Taneja with an intention to

murder him. Victim's appearance with his mother at 09.00 P.M. in front

of their house was sudden and without anticipation. A-2 and A-3 were not

armed with any weapon. They had given beatings at the first instance to

Rajeev Taneja and had not caused any injuries with any weapon.

Subsequently, it was A-1 who took out a knife and caused multiple

injuries to the victim. No role whatsoever was attributed to A-2 in the

causing of the injuries by A-1. The prosecution was not able to establish

beyond reasonable doubt that at the instigation of A-3, A-1 took out the

knife to cause injuries to the victim. Nothing has come on record to show

if A-2 and A-3 were aware about the possession of knife with A-1 prior to

the occurrence. A-2 and A-3 did not facilitate A-1 in causing injuries with

knife. It cannot be said with certainty that A-2 and A-3 shared common

intention with A-1 when he inflicted injuries with a knife to the victim. In

the absence of proof of a pre-arranged plan or prior concert among the

three, the mere fact that all were together by itself is not sufficient to make

A-2 and A-3 liable for the acts of A-1. Common intention must precede

the act constituting the offence. Of course, all the accused persons at the

first instance intended to beat Rajeev Taneja as they were annoyed for his

visit to their house in the absence of male members to demand money and

for that Rajeev Taneja was beaten with fists and blows at the time of

initial confrontation by all the accused persons. A-2 and A-3 cannot be

vicariously held liable for the injuries caused with knife by A-1 to the

victim. They are only liable for the individual role played by them in

beating the victim by fists and blows at the first instance. Since they have

remained in custody for long duration, no further sentence is required to

be awarded to them for the beatings given to the victim.

7. A-1 inflicted repeated multiple stab blows on the vital organs

of the victim with a sharp weapon. The injuries were opined 'dangerous'

in nature. As per MLC (Ex.PW-7/A), the following injuries were found on

his body :

1. CLW 3 x 5 c.m. over the left side of the chest. 4 c.m. lateral to left nipple.

2. CLW 3 x 3 c.m. over the lateral aspect of left thigh to mid thigh level.

3. CLW 2 x 1 c.m. over the interior aspect of left thigh at the upper 1/3rd part of thigh.

4. CLW 2 x 1 c.m. over the posterior aspect of left shoulder joint.

The victim remained admitted in the hospital for sufficient

long duration. Application (Ex.PW-13/A) was moved by the Investigating

Officer on 14.08.2000 to obtain the result. The doctor by an endorsement

on the application Ex.PW-13/A informed that the patient was still

admitted in the hospital and type of injury will be given at the time of

discharge. Apparently, the victim remained admitted in the hospital for

more than two months. At the time he was taken to the hospital, he was

unconscious. The victim was unarmed at the time of incident and A-1

inflicted 'dangerous' injuries with a deadly weapon on the vital organs

without any provocation. From the facts and circumstances, it can be

inferred that A-1 attempted to commit murder of the victim by causing

injuries and was liable for his individual act under Section 307 IPC. The

findings of the Trial Court on that score warrant no interference. A-1 has

been awarded RI for five years with fine ` 5,000/- which cannot be

termed excessive or unreasonable.

8. In the light of above discussion, appeal preferred by A-1

(Gulshan Sharma) is dismissed being unmerited. His conviction and

sentence are sustained. A-1 is directed to surrender before the Trial Court

on 21st January, 2014 to serve out the remaining period of sentence. The

period already undergone by A-2 (Harish Sharma) and A-3 (Kamni

Sharma) in this case is treated as their substantive sentence for the

beatings given to the victim and no further sentence is required to be

awarded to them.

9. Appeal stands disposed of in the above terms. Trial Court

record be sent back immediately.

(S.P.GARG) JUDGE JANUARY 16, 2014/tr