Paramjit Singh vs State (Nct Of Delhi)
2014 Latest Caselaw 2952 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 13th MAY, 2014
                             DECIDED ON : 4th JULY, 2014


+                        CRL.A.No. 1215/2011

      PARAMJIT SINGH                                   ..... Appellant

                         Through :   Mr.Avadh Kaushik, Advocate.

                         Versus


      STATE (NCT OF DELHI)                             ..... Respondent

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

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

S.P.GARG, J.

1. The appellant - Paramjit Singh challenges the legality and

correctness of a judgment dated 02.09.2011 of learned Addl. Sessions

Judge in Sessions Case No. 21/08 arising out of FIR No. 530/05 PS

Prashant Vihar by which he was convicted under Sections 307/34 IPC. By

an order dated 07.09.2011, he was awarded RI for three years with fine `

5,000/-.

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

sheet during trial was that on 14.06.2005 at about 11.00 P.M. in DDA

Shopping Complex, Near Petrol Pump, Sector 16, the appellant and his

associate Padam Thapa (Proclaimed Offender) sharing common intention

inflicted injuries to Murari Lal in an attempt to murder him. The victim

was taken to Dr.Baba Saheb Ambedkar Hospital (in short 'BSA Hospital')

and was medically examined. The accused persons were arrested.

Statements of the witnesses conversant with the facts were recorded to

substantiate the charges. After completion of investigation, a charge-sheet

was submitted against the appellant and Padam Thapa; they were duly

charged and brought to trial. In 313 statement, the appellant pleaded false

implication and denied his presence at the spot. The trial resulted in his

conviction as aforesaid. Being aggrieved and dissatisfied, he has preferred

the appeal. It is relevant to note that Padam Thapa absconded during trial

and was declared Proclaimed Offender.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and erred in

relying upon the testimonies of the witnesses who were closely associated

with the victim. No independent public witness was joined at any stage of

the investigation. The main culprit Padam Thapa has since been declared

Proclaimed Offender. The prosecution was unable to bring on record any

cogent evidence to infer that the appellant shared common intention with

him (Padam Thapa) to inflict injuries to the victim. The rope allegedly put

around the victim could not be recovered. No injury by it was found on

his body. Learned Add. Public Prosecutor urged that there are no cogent

reasons to disbelieve the credible and reliable testimony of the victim

which has been corroborated by independent public witnesses.

4. Soon after the incident at around 11.00 P.M., the police

machinery was set in motion and Daily Diary (DD) No.46 (Ex.PW-7/A)

was recorded in promptitude at 11.25 P.M. on getting information about

the stabbing incident at the liquor shop. The victim was taken to BSA

Hospital immediately and was medically examined by MLC (Ex.PW-4/A)

where the arrival time of the patient recorded is 11.35 P.M. The victim

was brought with the alleged history of 'assault'. Since the victim Murari

Lal was unable to make statement, the Investigating Officer lodged First

Information Report after recording complainant - Baldev Singh's

statement (Ex.PW-2/A). Rukka (Ex.PW-9/A) was sent at 03.40 A.M.

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

the complaint (Ex.PW-2/A), Baldev Singh gave vivid description of the

incident and narrated as to how and under what circumstances, the injuries

were inflicted to Murari Lal by the assailants sharing common intention.

While appearing as PW-1, the victim - Murari Lal gave detailed account

of the incident. He deposed that initially an altercation had taken place

with the assailants over change of quarter-bottle whisky, the seal of which

was found broken. However, due to intervention of the manager -

B.Sumana, the bottle was changed. The victim further disclosed that at

around 11.00 P.M. when he and his other colleagues - Baldev Singh,

Satish Kumar and B.Sumana had come out of the liquor shop to go to

their respective houses, the assailants came armed with daggers. When he

tried to make them understand, Padam Thapa stabbed him and the

appellant who had a plastic 'rope' put it around his neck. He was taken to

BSA Hospital and was medically examined. His blood stained shirt

(Ex.P1) was seized. In the cross-examination, he disclosed that Padam

Thapa who was acquainted with him used to visit the liquor shop

frequently and had come alone to take quarter-bottle of whisky. He

recalled that at the time of incident, both the accused came together and

took out the daggers. While resisting the attack, he caught hold the dagger

from Padam Thapa and suffered injuries on his head. The appellant

(Paramjit Singh), first of all hit him with a plastic rope on his face and

then put then it around his neck. He fell down after sustaining injuries by

a dagger. He denied the suggestion that the appellant was not present at

the spot.

5. On scrutinizing the testimony of the victim, it reveals that no

material discrepancies could be elicited to shatter his deposition. The

victim was not acquainted with the appellant and had no ulterior motive to

identify him as one of the assailants. Specific role was attributed to each

of the assailants in causing injuries. The victim had no hesitation to

recognize the present appellant who had accompanied the main culprit

who stabbed him by a dagger on the vital body part. During investigation,

for no valid reasons, the appellant declined to participate in Test

Identification Parade.

PW-2 (Baldev Singh), the complainant, while proving the

contents of the complaint (Ex.PW-2/A), supported the prosecution and

deposed that hot words were exchanged when Murari Lal refused to

change the quarter bottle of whisky as its seal was broken. Due to the

intervention of the in-charge - B.Sumana, Muraril Lal gave another

quarter bottle of whisky. At about 11.00 P.M., the said assailant along

with another person came there and inflicted injuries to the victim. The

witness was, however, unable to identify the assailants. He resiled from

the previous statement and was cross-examined by learned Addl. Public

Prosecutor after seeking Court's permission and recognized the appellant

as the assailant who had hit the victim by a plastic rope and then put it

around his neck. He reasoned that earlier he could not identify the

appellant as at that time he supported 'beard'. He further disclosed that the

other assailant had hit the victim by a knife on his abdomen. PW-3

(Satish) and PW-5 (B.Sumana) have corroborated their version in its

entirety. PW-3 (Satish) also deposed about the presence of the appellant

with a rubber pipe of about 2 ft. at the spot. He also deposed that the

appellant hit the victim with rope on the arms and legs. PW-5 (B.Sumana)

deposed about the presence of the appellant with co-accused. Despite

indepth cross-examination, no material inconsistencies or infirmities could

be extracted.

6. Statements of these eye witnesses are in consonance with

medical evidence and there is no variance between the two. PW-4

(Dr.Bhawna Jain) medically examined the victim on 14.06.2005 at 11.35

P.M. by an MLC (Ex.PW-4/A). PW-10 (Dr.Jitender Kumar) proved the

report (Ex.PW-10/A) prepared by Dr.O.P.Gupta where the nature of

injuries were described 'grievous'. Their statements remained

unchallenged in the cross-examination.

7. The initial confrontation had taken place with Padam Thapa

who was regular visitor to the liquor shop over exchange of broken seal of

liquor bottle purchased by him. However, due to the intervention of the in-

charge, the victim changed the bottle and the matter was pacified.

However, at about 11.00 P.M. when the victim along with his colleagues

was about to go to his house, both the assailants including the present

appellant came and challenged him. Padam Thapa nurtured grievance and

accused the victim for not changing the liquor bottle and stabbed him by a

knife on his abdomen. The role assigned to the present appellant is that he

had a plastic rope with which he gave beatings on the victim's face and

thereafter, put it around his neck to facilitate Padam Thapa to stab him on

his abdomen. All the prosecution witnesses have in clear terms testified

about the presence of the appellant with Padam Thapa with whom they

were acquainted. The present appellant was not known to them before but

was identified by some of the witnesses in the Court to be the assailant

who had accompanied Padam Thapa. The victim had no prior animosity

with the appellant to falsely rope him in the crime. The appellant claimed

that he was not present at the spot. However, nothing emerged as to where

else he was at that time. It was heavily for the appellant to establish

beyond reasonable doubt the plea of alibi. For the first time, in 313

statement he came out with the plea that after coming from Azadpur

Mandi to his house at Sector 16, Rohini, he proceeded on foot due to non-

available of a bus, at about 11.30 or 11.40 P.M., when two police officials

took him on motorcycle and falsely implicated him. This defence does not

inspire confidence and it was not revealed as to from which particular

place, he was coming at odd hours. No altercation has taken place with the

appellant earlier and he had no reasons to accompany the co-accused

Padam Thapa who was armed with a knife / dagger to cause injuries to the

victim though the matter had already been resolved / pacified. The

prosecution witnesses have not only spoken of the presence of the present

appellant with the co-accused but have also attributed specific overt act

whereby he gave beatings to the victim with the plastic rope and put it

around his neck to facilitate Padam Thapa to stab him. Both the convicts

had come and left together at the spot. From these circumstances, it can

safely be inferred that they shared common intention to inflict injuries to

the victim. Since the injuries were caused on the vital organ by a sharp

weapon, the findings of the Trial Court convicting the appellant under

Sections 307/34 IPC cannot be faulted. Minor discrepancies and

contradictions highlighted by the appellant's counsel do not shake the

basic structure of the prosecution case. The victim had no extraneous

considerations to falsely implicate the appellant.

8. The appellant was sentenced to undergo RI for three years

with ` 5,000/-. Nominal roll dated 15.10.2012 demonstrates that he

suffered physical incarceration for three months and six days as on

12.10.2012. On 28.09.2011, substantive sentence and as extended on

16.03.2012 was suspended till the next date of hearing. It is unclear

whether the appellant surrendered in the jail after dismissal of

Crl.M.B.No.1700/2011 on 19.10.2012 or served the sentence awarded to

him as he put appearance before this Court pursuant to issuance of the

bailable warrants. Nominal roll further shows that he is a first time

offender and is not involved in any other criminal activity. Sentence order

dated 07.09.2011, reveals that he had a family consisting of his old widow

mother and a handicapped brother and was the sole bread earner of the

family. He has suffered the agony of trial / appeal for about nine years.

Considering the mitigating circumstances and specifically the role

assigned to him in the occurrence, the sentence order is modified to the

extent that he shall undergo RI for two years instead of RI for three years.

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

9. The Trial Court shall verify if the appellant has undergone

two years physical incarceration in this case, and if not, he will be directed

to surrender and serve the remaining period of unexpired substantive

sentence (if any).

10. The appeal stands disposed of in the above terms. Trial Court

record be sent back immediately with the copy of the order. A copy of the

order be sent to the Superintendent jail for information.

(S.P.GARG) JUDGE JULY 04, 2014 / tr