Man Mohan Vikal vs The State Of Nct Of Delhi
2014 Latest Caselaw 2878 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 28th MARCH, 2014
                                DECIDED ON : 02nd JULY, 2014

+            CRL.A.No. 1024/2011

      MAN MOHAN VIKAL                                      ..... Appellant
                  Through :               Mr.Ramesh Gupta, Sr.Advocate
                                          with Mr.Mukesh Kalia & Mr.Karan
                                          Sachdeva, Advocates.


                           versus



      THE STATE OF NCT OF DELHI                            ..... Respondent

                           Through :      Mr.Lovkesh Sawhney, APP.


+            CRL.A.No.1124/2011 & CRL.M.B.No.2830/2014

      NEPAL CHAND                                          ..... Appellant

                           Through :      Mr.Mukesh Kalia, Advocate with
                                          Mr.Karan Sachdeva, Advocate.


                           versus



      THE STATE NCT OF DELHI                               ..... Respondent

                           Through :      Mr.Lovkesh Sawhney, APP.

AND


Crl.A.No.1024/2011 & connected appeals.                          Page 1 of 14
 +            CRL.A.No.1099/2011

      RAJESH BHATI                                         ..... Appellant

                           Through :      Mr.Mukesh Kalia, Advocate with
                                          Mr.Karan Sachdeva, Advocate.

                           versus



      THE STATE NCT OF DELHI                               ..... Respondent

                           Through :      Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Man Mohan Vikal (A-1), Nepal Chand (A-2) and Rajesh

Bhati (A-3) impugn a judgment dated 30.07.2011 of learned Addl.

Sessions Judge in Sessions Case No. 88/08 arising out of FIR No. 146/05

PS Bhajanpura by which they were held guilty under Section 120B read

with Section 307 IPC; A-3 was in addition convicted under Section 307

IPC. By an order dated 04.08.2011, they were sentenced to undergo RI for

ten years with fine ` 50,000/- each under Section 120B read with Section

307 IPC; A-3 was further sentenced to undergo RI for ten years with fine

` 50,000/- under Section 307 IPC. The substantive sentences were to

operate consecutively.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 27.04.2005, SI Virender Singh Punia on receipt of Daily

Diary (DD) No. 14-A along with Const.Chander Prakash went to the spot

i.e. A1/5, Bhajanpura, near Khajuri Red Light, main Wazirabad road, and

came to know that after the firing incident, the victim had already been

taken to GTB Hospital in a PCR van. After reaching at GTB hospital, SI

Virender Singh Punia collected MLC of injured Tara Chand who was

unfit to make statement. At about 09.50 P.M. when he (Tara Chand)

became conscious, the Investigating Officer after recording his statement

(Ex.PW-2/A), lodged First Information Report. The crime team was

summoned at the spot and two empty cartridges and one bullet were

seized. The crime scene was photographed. On 02.05.2005, Mahender

Mittal was arrested and pursuant to his disclosure statement, it emerged

that a conspiracy was hatched with Satish Bansal against the victim - Tara

Chand involving A-1 to A-3 and others. Call details were collected and on

06.05.2005, Mukesh was arrested. A-2 and A-3 who were arrested in

some case in Loni were arrested after issuance of production warrants on

23.06.2005. A-2 was identified by the prosecution witnesses in the Test

Identification Proceedings whereas A-3 could not be identified.

Subsequently, A-1, Satish Bansal and Sanjay were also arrested.

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

completion of investigation, a charge-sheet was submitted against

Mahender Mittal, Satish Kumar Vasant, Satender, Mukesh Kumar Goyal,

A-1, A-2 and A-3; they were duly charged and brought to trial. It is

relevant to note that vide order dated 21.04.2007, Sanjay was discharged.

The prosecution examined 17 witnesses to substantiate their case. In 313

statements, the accused persons denied their involvement in the crime and

pleaded false implication without examining any witness in defence. After

appreciating the evidence and considering the rival contentions of the

parties, the Trial Court, by the impugned judgment, convicted the

appellants for the offences mentioned previously. Mahender Mittal,

Mukesh Kumar Goyal, Satish Kumar Vasant and Satender were acquitted

of the charges. It is pertinent to note that State did not challenge their

acquittal.

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

examined the file. The appellants‟ conviction is primarily based on the

testimonies of PW-2 (Tara Chand) and PW-3 (Rakesh Kumar). The

occurrence took place at around 07.20 P.M. The incident was reported to

the police in promptitude and Daily Diary (DD) No. 14-A (Ex.PW-1/B)

came to be recorded at 07.25 P.M. at PS Bhajanpura. The investigation

was assigned to Insp.Virender Singh Punia (PW-17). The victim was

taken by PCR officials to GTB Hospital where he was medically

examined by MLC (Ex.PW-5/A). MLC records the arrival time of the

patient at 07.55 P.M. with the alleged history of „gunshot injury‟ by SI

Azad Mohammed of PCR and Rakesh, victim‟s son. PW-4 (Dr.Shuchi

Bhatt) medically examined him by a detailed report (Ex.PW-4/A) and

after examination of the X-ray, she found fracture of left fifth rib and right

humerus. PW-5 (Dr.D.Mohanty) proved the report (Ex.PW-5/A) prepared

by Dr.Punit Srivastava who had described the nature of injuries as

„grievous‟. PW-6 (Dr.Devender Kumar) on perusing the MLC disclosed

that on local examination, one entry wound was found present on the

chest, left side and upper part. The exit wound was present over back of

the left side. The injuries were not accidental or self-inflicted. The

complainant had no reasons to fake the incident of sustaining injuries by

firing. The victim - Tara Chand gave detailed account as to how his

partner with whom he had carried on business in partnership hatched

conspiracy with the appellants to murder him to avoid payment of ` 5

lacs. He also gave detailed account as to how and under what

circumstances, three assailants first criminally intimidated him and

eventually fired at him twice.

4. As observed above, Mahender Mittal with whom the victim

had dispute over payment of money was acquitted of the charges by the

Trial Court. A-1 to A-3 were held guilty for hatching conspiracy to

murder him (the victim). A-3 was further convicted for executing the

conspiracy by firing at the victim. While appearing as PW-2, the

complainant made vital improvements in his Court statement for which he

was duly confronted in the cross-examination. The complainant did not

give plausible explanation for major omissions in the statement (Ex.PW-

2/A) given to the police at the first instance. It has come on record that

during investigation, call details were collected by the prosecution.

However, for the reasons known to the Investigating Agency, no witness

from any service provider was cited and examined to prove the call

details. No evidence was brought on record to prove ownership of a

particular mobile phone with any of the appellants and about their

conversation among each other and the victim for any sufficient duration

at particular location. It is alleged that the assailants had arrived at the spot

on a motorcycle. However, no such motorcycle was recovered during

investigation. Neither PW-2 (Tara Chand) nor PW-3 (Rakesh Kumar)

themselves had witnessed A-1 and A-2 fleeing the spot on the motorcycle.

Their statements were based upon the information given by some

neighbour who had allegedly seen A-1 and A-2 fleeing the spot on the

motorcycle soon after the incident. However, name of any such neighbour

has not been disclosed. No such neighbour was examined to establish if he

had seen A-1 and A-2 on the spot on any motorcycle. Hearsay evidence of

PW-2 and PW-3 cannot be read into evidence.

5. On scrutinizing the testimonies of PW-2 (Tara Chand) and

PW-3 (Rakesh Kumar), it transpires that for the first time on 27.04.2005, a

telephone call was received by PW-2 (Tara Chand) and the caller revealed

his name Man Mohan Vikal (A-1) who allegedly told him, "hum tumhare

baap bol rahe hain". PW-2 (Tara Chand) did not reveal the time when the

said telephone call was received or if it was on landline phone or mobile

and what was its number. In the cross-examination, he informed that the

threatening call was received in the afternoon on his mobile and it was

heard keeping its speaker „on‟ to enable his son to hear the conversation.

The duration of the call was about 10 - 15 minutes. PW-3 (Rakesh

Kumar) did not corroborate PW-2‟s version if he had heard the

conversation when the speaker of the mobile was „on‟. He merely deposed

that at around 12.40 P.M., his father received a telephone call in his

presence in the shop. The caller had abused and threatened his father. He

further disclosed that the caller had told his father to pay ` 5 lacs which he

owed to Mahender Mittal. The caller also asked his father to come at

Usman Pur to settle the matter or else he would have to face the

consequences. On this, his father told that he would not go there and

asked the caller to come at the shop to settle the dispute. In the cross-

examination, the witness was confronted with the statement (Ex.PW-

3/DA) recorded under Section 161 Cr.P.C. where all these facts did not

find mention. As discussed above, no such call details were placed on

record or proved as per law. A-1 was not known to PW-2 (Tara Chand)

and PW-3 (Rakesh Kumar) prior to the incident. No Test Identification

Proceedings were conducted to enable PW-2 (Tara Chand) and PW-3

(Rakesh Kumar) to identify him. Identification of A-1 for the first time in

the Court becomes suspect as the Investigating Officer did not give cogent

reasons for not holding TIP proceedings when A-2 and A-3 were asked to

participate in the TIP proceedings. Complainant‟s conduct after receiving

the threatening call is unreasonable as he did not lodge report with the

police. He even did not attempt to contact Mahender Mittal or any of his

relatives with whom he had prior acquaintance to confirm if A-1 was

acting at his behest and was threatening to get ` 5 lacs which Mahender

Mittal allegedly owed to him. Thus, no criminality can be inferred against

A-1 for the alleged threatening call which remained unproved.

6. The second stage involving the appellants is when after about

20 minutes they came to complainant‟s shop and informed him that A-1

was the caller on the telephone. PW-2 (Tara Chand) highlighted that A-1

claimed that he had to take ` 5 lacs from Mahender Mittal. A-3 told him

to remain present at the shop and they would come by 08.00 P.M. there.

A-2 threatened him "agar tu sham ko dukaan par nahi mila to teri khopdi

uda denge". PW-3 (Rakesh Kumar) testified that after about 20 minutes,

three boys came at the shop. Two of them gave their names as Man

Mohan Vikal and Mukesh. The third one refused to disclose his name. In

Court statement, he identified and recognized all of them as A-1, A-2 and

A-3 and clarified that A-3 had wrongly given his name as Mukesh at that

time. A-2 was the assailant who had declined to disclose his name. He

stated that the three accused asked his father to accompany them to

Usmanpur to settle the dispute as Mahender Mittal was sitting there.

When his father refused to go, A-3 told his father that they would bring

Mahender Mittal in his shop and he should remain present there at about

08.00 P.M. A-2 extended threats to kill him if he did not obey. Thereafter,

all the assailants went away abusing his father. Apparently, both PW-2

(Tara Chand) and PW-3 (Rakesh Kumar) have given inconsistent version

regarding the conversation that took place between the appellants and the

victim. Despite open threat, the PWs did not bother to report the incident

to the police. They even did not try to contact Mahender Mittal. Rather

they conveniently continued to sit at the shop to wait for the arrival of the

assailants. It is relevant to note that Mahender Mittal and others have

already been acquitted of the charges. Allegations against A-1, A-2 and

A-3 were that they hatched conspiracy and were Mahender Mittal‟s

henchmen acting at his behest. The complainant did not produce on record

any document to show if Mahender Mittal owed any money to him or he

had demanded any such amount from him any time. No proceedings

whatsoever were initiated against Mahender Mittal by the victim to

recover the alleged dues. Contrary to that, Mahender Mittal had lodged a

complaint with the police and the complainant - Tara Chand was called in

the police station for making payment to Mahender Mittal. None of the

appellants was armed with any weapon at that time. The Trial Court did

not record conviction for criminal intimidation. A-3 was not named in the

FIR and for the first time in the Court statement, the witness stated that he

had wrongly given his name as „Mukesh‟. Mukesh was acquitted by the

Court.

7. So far as third stage of the incident in which the complainant

sustained injuries by firing, only A-3 was witnessed as the perpetrator of

the crime. Both PWs have categorically stated that it was A-3 who fired at

the victim twice with a pistol in his hand. It is true that in TIP proceedings

both these witnesses could not identify and recognize A-3 as the assailant.

Reasons for the same have been given and believed by the Trial Court.

Due to threats extended by the assailants, the witnesses deliberately did

not identify him in the TIP proceedings. They were, however, certain in

their Court statements that it was A-3 who had fired at the victim. Their

statements in the absence of any infirmities in the cross-examination

cannot be disbelieved. The substantive evidence of identification is

identification in the Court. They had no ulterior motive to falsely

implicate A-3 for the vital injuries sustained by the victim. It is unclear as

to what had motivated A-3 to fire at the victim. Nonetheless he cannot

escape from the punishment for the injuries caused by him to the victim

on his vital organ. Testimonies of PW-2 (Tara Chand) and PW-3 (Rakesh

Kumar) cannot be discredited simply because the co-accused persons

were acquitted on the same set of evidence. PW-2 Tara Chand had

suffered grievous injuries is not expected to let the real culprit go scot free

and falsely implicate an innocent one.

8. Regarding hatching of conspiracy by the appellants, in my

view, the prosecution has failed to establish it beyond reasonable doubt

especially when the main suspect Mahender Mittal at whose instance the

appellants had acted was acquitted of the charges. The appellants were not

having any prior acquaintance or animosity with the victim to eliminate

him. They were not going to be benefited by just making an attempt to

murder him. It appears that the main purpose of the assailant was to settle

the dispute (if any) for recovery of the dues. A-1 and A-2 were not present

at the spot at the time of occurrence with A-3 and had not provided any

arms or ammunitions to him. There are no allegations of exhortation; they

did not facilitate A-3 in the execution of the plan. No weapon was

recovered at their instance. The vehicle on which the assailants had

arrived was also not recovered. Call details among the assailants were not

proved to ascertain if they were in constant contact with each other at any

stage soon before the incident or after the occurrence. Simply because

they had accompanied A-3 at the earlier stage which the prosecution

failed to prove beyond reasonable doubt, no inference can be drawn that

they had conspired with each other to fire at the victim. Mere

identification of A-2 in TIP proceedings is not enough to establish

criminal conspiracy as his presence at the second stage with A-1 and A-3

has not been established and the threat allegedly extended by him does not

find mention in the statement (Ex.PW-2/A). Ex.PW-2/A does not disclose

if any threat was extended by A-2. His name even does not find mention

therein.

9. In the light of above discussion, conviction of A-1 and A-2

under Section 120B read with Section 307 IPC cannot be sustained and is

set aside. A-1 and A-2 deserve benefit of doubt and are acquitted. They

shall be released forthwith if not required to be detained in any other case.

10. For similar reasons, A-3‟s conviction under Section 120B

read with Section 307 IPC is set aside. He is, however, held guilty for

committing offence only under Section 307 IPC as he had fired twice

from close range at the victim. The findings of the Trial Court under

Section 307 IPC are based upon fair appreciation of the evidence and need

no intervention and are affirmed. A-3‟s nominal roll dated 17.05.2012

reveals that he has suffered custody for one year and three days besides

remission for three months and twenty five days as on 18.05.2012.

Though he is involved in two criminal cases - S.T.No.1146/05, FIR

No.782/2004 under Sections 147/148/149/302/307 IPC PS Loni,

Ghaziabad, U.P. and FIR No.263/2002 under Sections 379/411/34 IPC PS

New Ashok Nagar. Yet no conviction has been recorded so far. The

sentence order is modified to the extent that he shall undergo RI for ten

years with fine ` 5,000/- and failing to pay the fine to undergo SI for one

month under Section 307 IPC. He shall also pay compensation of `

50,000/- to the victim - Tara Chand and it shall be deposited within

fifteen days in the Trial Court to be released to the victim after due notice.

11. The appeals filed by A-1 and A-2 are allowed and appeal

filed by A-3 is disposed of in the above terms. Pending application also

stands disposed of being infructuous. 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 JULY 02, 2014 / tr