Rahul @ Sunny vs State (Nct Of Delhi)
2014 Latest Caselaw 519 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : January 16, 2014
                               DECIDED ON : January 28, 2014

+      CRL.A. 803/2012 & CRL.M.B. 115/2014
       RAHUL @ SUNNY                                   ..... Appellant
                         Through :   Mr.H.S.Phoolka, Sr.Advocate with
                                     Mr.HJS Ahluwalia and
                                     Mr.Gursimran Jit Singh,
                                     Advocates.

                         VERSUS

       STATE (NCT OF DELHI)                            ..... Respondent
                     Through :       Mr.Lovkesh Sawhney, APP.
                                     SI Rajesh Kumar, PS Kanjhawala.
        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Rahul @ Sunny questions the correctness and legality of a

judgment dated 09.05.2012 of learned Additional Sessions Judge in

Sessions Case No.107/2011 arising out of FIR No.243/2007 registered at

Police Station Kanjhawala by which he was convicted under Section 307

IPC and 25/27 Arms Act. By an order dated 17.05.2012 he was awarded

rigorous imprisonment for seven years with fine `10,000/- under Section

307 IPC and rigorous imprisonment for three years with fine `2,000/-

under Section 25/27 Arms Act. Both the sentences were to operate

concurrently.

2. Allegations against the appellant were that on 15.12.2007 at

about 02.30 P.M. near Dada Mundu Karala, he inflicted injuries to

Rajneesh by firing at him with desi katta in an attempt to murder him.

Daily Dairy (DD) No.16A (Ex.PW14/A) was recorded at 04.10 P.M. at

Police Station Kanjhawawla on getting information from Dr.S.Mittal of

Brahmshakti Sanjivani hospital about admission of Rajneesh s/o Satbir by

his friend Sunil due to fire shot on head. DD No.17/A (Ex.PW-14/B) was

recorded at 04.32 P.M. The information about the occurrence was

conveyed from telephone No.9211239057 by Satbir about the incident.

The investigation was assigned to ASI Johar Singh who with

Const.Rakesh went to the spot. He lodged First Information Report after

recording Rajneesh's statement (Ex.PW12/A). During the course of

investigation statement of witnesses conversant with the facts were

recorded. Rahul @ Sunny was apprehended and arrested. Pursuant to his

disclosure statement, a country made pistol was recovered on 18.12.2007.

After completion of investigation, a charge-sheet was filed against Rahul

@ Sunny for committing the aforesaid offences. The accused was duly

charged and brought to trial. The prosecution examined fourteen

witnesses to establish its case. In 313 statement, the appellant pleaded

false implication and denied complicity in the crime. After considering the

rival contentions of the parties and on appreciating all the evidence, the

trial court by the impugned judgment held the appellant perpetrator of the

crime for the aforesaid offences. Being aggrieved, the appellant has filed

the present appeal.

3. I have heard the learned Sr.counsel for the appellant, learned

Additional Public Prosecutor for the State and have examined the record.

Learned Sr.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. PW-11 (Sunil) did not opt to support the prosecution and

turned hostile. The medical evidence is in conflict with the ocular

evidence. The complainant alleged that bullet was fired at point blank

range while sitting on the rear seat of the car behind him. However, in the

MLC, there was no blackening or singeing of the skin. The CFSL report

did not fully support the prosecution. The delay in lodging the report with

the police was not explained. No blood stains or bullet mark was found in

the car. Vital discrepancies emerging in the testimonies of the prosecution

witnesses were ignored without valid reasons. The complainant himself

was involved in four criminal cases. Learned Additional Public

Prosecutor urged that there are no sound reasons to discard the testimony

of the injured witness who implicated the appellant at the first instance.

4. The occurrence took place at around 02.30 P.M. DD No.16A

(Ex.PW-14/A) and DD No.17A (Ex.PW-14/B) were recorded at 04.10 and

04.32 P.M. respectively after admission of injured Rajneesh at

Brahmshakti Sanjivani hospital. MLC (Ex.PW-3/A) records the arrival

time of the patient at Brahmshakti Sanjivani hospital as 03.50 P.M. The

investigating officer after recording complainant-Rajneesh's statement

(Ex.PW-12/A) sent the rukka (Ex.PW-14/C) for lodging First Information

Report at 06.30 P.M. Apparently, there was no inordinate delay in

registration of the case. At the first available opportunity, the complainant

disclosed detailed account of incident as to how and under what

circumstances, Rahul @ Sunny had fired a bullet on his head when he was

going in his car bearing No.7619 to Begumpur at about 11.00 A.M. He

further disclosed that after the firing, Rahul @ Sunny along with his

associate fled the spot and he informed his friend Sunil about the

occurrence. Since the FIR was lodged without any delay there was least

possibility of the complainant to fabricate or concoct a false story in such

a short interval. While appearing as PW-12, Rajneesh in his Court

statement proved the version given to the police at the earliest opportunity

without any variation and implicated the appellant for inflicting injuries to

him with a country made pistol. He deposed that on 15.12.2007 at about

11.00 A.M. he left in his car bearing No.DL-3CQ-7619 Essent for

Begumpur for giving earnest money/bayana to purchase a plot there.

Rahul @ Sunny who was acquainted with him and was a nephew of

Naubat resident of the same village boarded his car. He was accompanied

by his friend from the same village but was not known to him. When they

left for Karala and reached near Dada Mando Mandir out of the village,

Rahul @ Sunny who was sitting on the back seat behind him fired at his

head from behind. After the firing, he and his friend ran away from the

spot. The occurrence took place at about 02.30 P.M. Thereafter he made

a telephone call to his friend Sunil of village Barwala and informed him

about the occurrence and requested him to come along with his father

there. Thereafter Sunil along with his father came and he was taken to

Brahmshakti Sanjivani hospital where his statement (Ex.PW-12/A) was

recorded. In the cross-examination, he admitted that the appellant was

known to him for the last about 5/6 years. He denied the suggestion that

there was previous dispute between him and the appellant. He was put

number of questions regarding his involvement in criminal cases. He

denied that he was feeling jealous due to status and business of the

appellant and falsely implicated him on that count. He explained that he

did not make any call to PCR as he felt that if he called the police party,

they would waste time in formalities and would take him to some

government hospital where he might not get proper treatment and

therefore to save his life, he first made a call to his friend.

5. Injuries on the head of the complainant are not under

challenge. Only contention of the appellant is that he was not the author

of the injuries and it were inflicted by someone else and he was falsely

implicated due to suspicion. However, no material discrepancies could be

elicited or extracted in the cross-examination to disbelieve the version

given by the complainant where he was definite and sure that injuries

were inflicted to him by the appellant with a country made pistol inside

the car. There was none else present in the rear seat of the car to cause the

injuries that time. Presence of the accused inside the car at the relevant

time has not been controverted specifically. The appellant did not suggest

his presence at any other particular place at the relevant time. The

complainant who had sustained grievous injuries on the vital organ of the

body was not expected to let the real culprit go scot free. In the absence

of prior animosity or ill-will the complainant who was acquainted with the

appellant for the last 5/6 years and had readily allowed him to travel in his

car without any suspicion was not expected to fabricate a false story and

to falsely rope him in the incident. No ulterior motive was assigned to the

complainant for falsely implicating him.

6. PW-11 (Sunil) though was reluctant to give statement in the

court, nevertheless, supported the prosecution and corroborated the

complainant's version that he was informed by him on phone regarding

the injuries caused to him. He also admitted that he had noticed a bullet

on his head. He further admitted that Rajneesh was taken by him to

Brahmshakti Sanjivani hospital. It is true that he has not supported the

prosecution on all material facts but has given the reasons for that. Since

both the complainant and the appellant were from the same village, he did

not want to spoil his reputation (yeh sabhi ek hi gaon ke hain, main kyon

bura banoo.). Name of this witness Sunil finds mention in DD No.16A (

PW-14A) as well as in MLC (Ex.PW-3/A). Sunil did not give clean chit

to the appellant. PW-6 (Satbir Singh), complainant's father, deposed on

similar lines whereby he was informed about the occurrence by PW-11

(Sunil) and who in turn informed the police at 100. Telephone number

9211239059 finds mention in DD No.17A (Ex.PW-14/B).

7. Ocular testimony of the victim is in consonance with the

medical evidence. PW-5 (Dr.S.Mittal) medically examined the patient

Rajneesh on 15.12.2007 vide MLC (Ex.PW-3/A). Patient was admitted

with alleged history of gunshot. On local examination, entry wound was

found present at occipital region. Foreign body was seen in the depth of

wound. There was bleeding from the wound. The patient was declared fit

for statement at point X1 on MLC (Ex.PW-3/A). Testimony of the

witness remained unchallenged in the cross-examination. PW-3

(Dr.Bharat Bhasin) gave opinion about the nature of injuries as 'grievous'

at point 'A' on MLC (Ex.PW-3/A). The injury was grievous as outer

table of skull was fractured as found intra operatively, though, inner table

was intact. The patient was operated by him on 15.12.2007. In that

operation one deformed bullet of about 4 cm with yellow coloured

mushroom tip was taken out and sealed. The deformed bullet was handed

over to the police. Again the testimony of this witness was not challenged

in the cross-examination. No suggestion was put to the witness if the fire

was from close range or distance. Apparently, there is no major variation

between the medical and ocular witness.

8. Recovery of crime weapon i.e country made pistol (Ex.P-1)

on 18.12.2007 is another incriminating circumstance against the appellant

to connect him with the crime. PW-14 (ASI Jor Singh) and PW-7

(Const.Rakesh) have given consistent version on this aspect. As per

CFSL report (Ex.PW-9/A) country made pistol .315" bore marked Ex.F1

was found in working order. PW-9 (Puneet Puri) further opined that

deformed bullet marked Ex.EB1 was corresponding to the bullet of

8MM/.315" cartridge. He was, however, unable to give specific opinion

if this deformed bullet was discharged from the country made pistol

marked Ex.F1 as the individual characteristics of striations present on

Ex.EB1 were insufficient for comparison and opinion.

9. In 313 statement, the appellant did not give plausible

explanation to the incriminating circumstances appearing against him.

Merely because the complainant was involved in some criminal cases, it

did not give any right to the appellant to inflict injuries to him. The

findings recorded by the Trial Court are based on fair appraisal of the

evidence and elaborate discussion has been made in the impugned

judgment on all relevant aspects and findings warrant no interference.

The findings on conviction are affirmed.

10. Alternative argument was adopted by Ld.Senior counsel to

modify the sentence order after taking lenient view as the appellant has

already remained in custody for about three years and is not a previous

convict. Nominal roll dated 02.12.2013 reveals that the appellant has

suffered incarceration for two years, five months and eight days besides

earning remission for five months and eighteen days as on 02.12.2013.

He was not involved in any other criminal case and his overall jail

conduct was satisfactory. The appellant was aged about 18 years at the

time of occurrence. There was no previous animosity with the victim

prompting him to murder him without provocation. The complainant has

not assigned any specific motive to the appellant for suddenly inflicting

grievous injuries on the vital organ with a country made pistol. It appears

that the complainant has not presented true facts as to what had provoked

the appellant to cause injuries to him. The appellant has placed on record

number of FIRs i.e. FIR No.129/03 Police Station Bawana; FIR

No.290/03 Police Station Bawana; FIR No.396/07 Police Station Bawana

and FIR No.1106/04 Police Station Prashant Vihar in which the

complainant is involved. The appellant was a student of class X and was

unmarried. It is informed that his father left the house in 1990 and is

living separate. Considering all these mitigating circumstances, the

substantive sentence of the appellant for seven years is reduced to five

years. Other terms and conditions of the sentence order are left

undisturbed.

11. The appeal stands disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

immediately. A copy of this order be sent to Superintendent Jail.

(S.P.GARG) JUDGE JANUARY 28, 2014 sa