Kuldeep Singh vs State Of Nct Of Delhi
2014 Latest Caselaw 1506 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 13th JANUARY, 2014
                                  DECIDED ON : 21st MARCH, 2014

+                         CRL.A. 1161/2012

       KULDEEP SINGH                                      ..... Appellant
                          Through :    Mr.Ramesh Gupta, Sr.Advocate
                                       with Mr.Kundan Kumar, 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. Challenge in this appeal is to a judgment dated 06.08.2012

of learned Addl. Sessions Judge in Sessions Case No. 420/09 arising out

of FIR No. 299/2009 PS Vijay Vihar by which the appellant - Kuldeep

Singh held guilty for committing offence punishable under Section 307

IPC. By an order on sentence dated 14.08.2012, he was awarded RI for

ten years with fine ` 50,000/-.

2. Allegations against the appellant as projected in the charge-

sheet were that on 06.09.2009 at about 09.30 P.M. near Rice Mill Rithala,

Lal Dora village Rithala, he and his companion Raj (Not arrested) in

furtherance of common intention inflicted gunshot injuries to Sachin

Bhardwaj by a revolver. Daily Diary (DD) No. 43A (Ex.PW-15/A) was

recorded at 10.15 P.M. at PS Vijay Vihar on getting information that two

boys had fled after firing at his friend and the injured was being taken to

Sanjay Gandhi hospital. The investigation was assigned to ASI Saheb

Singh who went to the spot and came to know that the victim had been

taken to Saroj hospital, Sector 14, Rohini. Since no eye witness was

available and the victim was unfit for statement, he lodged First

Information Report by making endorsement (Ex.PW-15/C) over Daily

Diary (DD) No. 43A (Ex.PW-15/A). The victim Sachin Bhardwaj in his

statement recorded on 09.09.2009 implicated Kuldeep and his associate to

have fired at him. Statements of the witnesses conversant with the facts

were recorded. On 12.09.2009, the appellant was arrested. After

completion of investigation, a charge-sheet was submitted against the

accused; he was duly charged and brought to trial. To prove its case, the

prosecution examined eighteen witnesses. In 313 statement, the appellant

pleaded false implication and denied his complicity in the crime. The trial

resulted in his conviction as aforesaid. Being aggrieved, he has preferred

the appeal.

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

examined the file. The police machinery came into motion when PW-10

(W/Ct. Saraswati) received a call at 10.11 P.M. on mobile No.

9968800893 regarding the incident and PCR form (Ex.PW-10/A) filled

up. Consequent to that, Daily Diary (DD) No. 43A (Ex.PW-15/A) was

recorded at 10.15 P.M. The informant did not name the assailants though

he claimed that they were known to him. It did not mention if the

assailants had arrived in a car. Daily Diary (DD) No. 43A (Ex.PW-15/A)

records that the victim was being taken to Sanjay Gandhi hospital.

However, this information was found incorrect as on reaching at the spot,

the Investigating Officer came to know that the injured had been taken to

Saroj hospital, Sector 14, Rohini. MLC (Ex.PW-5/A) records that the

victim was brought at Saroj hospital at 10.30 P.M. by Anuj (brother). PW-

3 (Sunil Kumar) stated in his deposition before the Court that information

was conveyed to police at 100 by him on his mobile and he shifted injured

Sachin Bhardwaj to Saroj hospital. MLC (Ex.PW-5/A) does not reveal if

the victim was taken to the hospital by PW-3 (Sunil Kumar). PW-11

(Anuj) claimed that victim was admitted by him. PW-3's presence at the

spot soon after the occurrence is doubtful. When the Investigating Officer

went to the spot, he did not find any eye witness there. Even when he

went to Saroj hospital, he did not meet PW-3 (Sunil Kumar) and First

Information Report was lodged by making endorsement on Daily Diary

(DD) No. 43A (Ex.PW-15/A). PW-3 (Sunil Kumar) did not give

reasonable explanation as to why he did not inform the Investigating

Officer about the appellant's involvement in the incident when he had

allegedly seen him along with his companion in a Santro car soon after the

incident near the spot. No explanation has been offered by the witness as

to why his statement was not recorded soon after the incident. There is

delay of about six days in recording his statement under Section 161

Cr.P.C. which has not been explained. He did not reveal the number of the

Santro car in which the appellant and his associate had fled the spot. He

was also unable to identify the assailant who was driving the said vehicle.

In the cross-examination, he admitted that he never met the police and did

not record his statement. He was confronted with his statement (Ex.PW-

3/DA) recorded under Section 161 Cr.P.C. where there was no mention

that victim - Sachin Bhardwaj had disclosed to him that the appellant -

Kuldeep had fired at him. PW-2 (Sachin Bhardwaj) did not support the

prosecution and resiled from the previous statement given to the police on

09.09.2009. He disclosed in his testimony before the Court that Kuldeep

was named as the assailant due to suspicion because of previous quarrel

which took place with him on 03.09.2009. To the specific court question,

whether assailants were in a car or on bike on 06.09.2009, the victim

stated that they were on bike. It has come on record that the parties had

moved this Court for quashing of the FIR which was not permitted. That

aspect itself is not enough to establish that the appellant was the

perpetrator of the crime. The complainant has specifically stated that due

to the intervention of the relatives he was informed that the appellant was

not the assailant and the matter was settled and compromised. The delay

in recording statement of the victim has also not been explained. As per

MLC (Ex.PW-5/A), he was fit to make statement on 08.09.2009. PW-3

(Sunil Kumar) did not lodge FIR. He was not found present in the hospital

after the arrival of the Investigating Officer in the hospital till the sending

of the rukka at 12.45 A.M. on 07.09.2009. No crime weapon was

recovered from the possession of the appellant or at his instance. His

alleged companion / associate could not be traced and his identity could

not be established. No proceedings were initiated against him to declare

him Proclaimed Offender. The vehicle in which the assailants had

travelled was also not recovered. Mere involvement of the appellant in

various cases was not enough to prove his guilt in the present case in view

of various glaring lapses in the investigation and because of the testimony

of the complainant in which he had not implicated the appellant for

inflicting injuries.

4. In the light of above discussion, the impugned judgment

cannot be sustained and is set aside. The appeal is accepted and conviction

and sentence of the appellant are set aside. The appellant shall be released

forthwith if not required to be detained in any other case. 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 MARCH 21, 2014/tr