Rahul Makkar vs State Nct Of Delhi
2014 Latest Caselaw 2226 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 26th MARCH, 2014
                                   DECIDED ON : 2nd MAY, 2014

+            CRL.A. 1322/2012 & CRL.M.B.No. 1594/2013

      RAHUL MAKKAR                                       ..... Appellant

                         Through :    Mr.R.S.Mahla, Advocate.
                         versus

      STATE NCT OF DELHI                                 ..... Respondent

                         Through :    Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. The appellant - Rahul Makkar challenges the correctness and

legality of a judgment dated 11.09.2012 of learned Addl. Sessions Judge

in Sessions Case No. 7/11 arising out of FIR No. 265/10 PS Geeta Colony

by which he was held guilty under Section 307 IPC. By an order dated

14.09.2012, he was awarded RI for four years with fine ` 5,000/-.

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

sheet was that on 05.10.2010 at about 08.00 P.M. in front of house No.

12/99, Geeta Colony, the appellant and his father - Satish Makkar in

furtherance of common intention inflicted injuries to Rakesh Kumar and

Amandeep Singh by a sharp edged weapon in an attempt to murder. Daily

Diary (DD) No. 27A (Ex.PW-8/C) was recorded at PS Geeta Colony at

20.17 hours regarding the incident and the investigation was assigned to

ASI Satyapal Singh. The victims were taken to Dr.Hedgewar Hospital.

From there, Amandeep Singh was taken to Kailash Hospital for better

treatment. The Investigating Officer lodged First Information Report after

making an endorsement (Ex.PW-11/A) on the written complaint (Ex.PW-

1/A) given by the complainant - Rakesh Kumar. During investigation,

statements of the witnesses conversant with the facts were recorded. On

06.10.2010, the appellant was arrested and pursuant to his disclosure

statement, the crime weapon i.e. knife was recovered from the flower pot

lying outside his house. After completion of investigation, a charge-sheet

was submitted against both Rahul Makkar and his father (Satish Makkar);

they were duly charged and brought to trial. The prosecution examined

twelve witnesses. In 313 statement, the appellant denied his involvement

in the crime and pleaded false implication. DW-1 (Vidhya Bhushan) and

DW-2 (Tilak Raj) were examined in defence. After considering the rival

contentions of the parties and on appreciation / evaluation of the evidence,

the Trial Court, by the impugned judgment, acquitted Satish Makkar of

the charges and convicted the appellant under Section 307 IPC. It is

pertinent to note that State did not challenge the acquittal (of Satish

Makkar).

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

appreciate the evidence in its true and proper perspective and fell in grave

error in relying upon the testimonies of the interested witnesses without

independent corroboration. PW-3 (Pawan Chaudhary), brother-in-law of

the complainant - Rakesh Kumar did not support the prosecution and

turned hostile. The recovery of the knife is suspect as no blood was found

on it and no independent public witness was associated at the time of

alleged recovery. The prosecution witnesses have made vital

improvements as in their initial statement, the complainant had not

disclosed use of 'knife'. The appellant was arrested on the next day of the

incident and he did not attempt to abscond. DW-2 (Tilak Raj) has

specifically deposed that the victims and their associates assaulted the

appellant and gave beatings to him. The police did not medically examine

the appellant. Learned Addl. Public Prosecutor urged that there are no

sound reasons to disbelieve the statements of the injured witnesses who

have categorically assigned specific role to the appellant in inflicting

injuries by a knife to them.

4. The occurrence took place at around 08.00 P.M. on

05.10.2010. Information to the police was conveyed in promptitude and it

led to recording of Daily Diary (DD) No. 27A (Ex.PW-8/C) at 20.17

hours at PS Geeta Colony. From the spot, the victims were taken to

Dr.Hedgewar Arogya Sansthan, Karkardooma. Victim - Rakesh Kumar

was medically examined vide MLC Ex.PW-4/B. It records the arrival time

of the patient at 10.20 P.M. PW-4 (Dr.Rajesh Kumar) proved the MLC

which is in the hands of Dr.Kuldeep. Another victim Amandeep Singh

was medically examined vide MLC Ex.PW-4/A by Dr.Kuldeep. The

arrival time of the patient recorded therein as 09.20 P.M. brought by his

father. Number of injuries were found on the body of the victim as

described in the MLC (Ex.PW-4/A). PW-6 (Dr.Sachin Harit) examined

Amandeep Singh at 09.20 P.M. at Dr.Hedgewar Hospital and found

following injuries on the body :

1. CLW over occipit of size at around 10 cms x 2 cms x .8 cms with active bleeding.

2. CLW over left ear of size 1.8 cms x .8 cms.

3. Nasal bleeding positive.

4. CLW over right shoulder of size 4 cms x .3 x .3.

Since the victim's condition was critical, he was taken to

Kailash Hospital where he remained under treatment for s couple of days.

The patient was referred to surgery Department for further management.

The encircled portion in red ink on MLC (Ex.PW-4/A) was in his hand. In

the cross-examination, he disclosed that the patient must have remained

with him for about 15 - 20 minutes. PW-12 (Dr.Sarika Chandra), CCMO,

Kailash Hospital, deposed that patient Amandeep Singh was brought from

an outside hospital with the history of assault. She proved the copies of

the admission slip (Ex.PW-12/A) and registration form (Ex.PW-12/B).

Nature of injuries was opined 'grievous' vide report Ex.PW-12/C.

Apparently, both Rakesh Kumar and Amandeep Singh sustained injuries

in the incident. The appellant has not disputed or challenged the injuries

suffered by them. Specific suggestion was put in the cross-examination of

PW-1 (Rakesh Kumar) and PW-5 (Amandeep Singh) that a scuffle had

arisen and the appellant was attacked by Rakesh Kumar, Pawan, Jaspreet

and Amandeep Singh, and in the said scuffle, the victims sustained

injuries. This defence pleaded by the appellant does not inspire

confidence. He did not elaborate as to on what account the scuffle had

originated. The appellant who had alleged been assaulted by number of

assailants did not sustain any injury and did not get himself medically

examined. He even did not bother to report the incident to the police. It is

highly unbelievable that in a scuffle both Rakesh Kumar and Amandeep

Singh would sustain injuries by a knife while allegedly assaulting the

appellant. No such question was put to PW-4 (Dr.Rajesh Kumar), PW-6

(Dr.Sachin Harit) and PW-12 (Dr.Sarika Chandra), if injuries sustained by

the victims were possible in the said manner. The defence deserves

outright rejection. Rather it lends-credence to the prosecution's version

that on 05.10.2010 at about 08.00 P.M., a quarrel had taken place with the

appellant and he initially inflicted injury to Rakesh Kumar. When his

friend Amandeep Singh who had gone to Rakesh Kumar's house to

enquire of his well being intervened, the appellant caused multiple injuries

by a sharp weapon on his body. The complainant Rakesh Kumar in his

complaint (Ex.PW-1/A) given to the Investigating Officer soon after the

incident gave vivid description of the incident and named the appellant for

causing injuries to both of them on various body parts. He was fair enough

not to assign any role to his father Satish Makkar in causing injuries.

While appearing as PW-1, Rakesh Kumar proved the police version given

at the first instance without any deviation. He assigned specific motive to

the complainant to pick up the quarrel on a trivial issue. No material

discrepancy could be elicited in the cross-examination to suspect the

version narrated by him. PW-5 (Amandeep Singh) corroborated Rakesh

Kumar's version in its entirety without any variation. He also implicated

Rahul Makkar for causing injuries by a knife when he intervened to save

his friend Rakesh Makkar at the hands of the appellant. Again, his

testimony on material facts remained unchallenged.

5. Statements of both PW-1 (Rakesh Kumar) and PW-5

(Amandeep Singh) are in consonance with medical evidence and there is

no major variance between the two. It is true that initially the complainant

did not disclose the use of 'knife' in inflicting injuries. However, he was

certain that the appellant was armed with a 'sharp' object. Non-recovery

of the crime weapon is not fatal to the prosecution case. There is

substance in the appellant's plea that the recovery of the knife was

suspect. No blood was detected on the knife and it was not sent to

Forensic Science Laboratory. The recovery of the knife from a flower pot

lying in the street outside the house cannot be considered as incriminating

as the place was accessible to the public at large. It is also true that PW-3

(Pawan Chaudhary) has not supported the prosecution in its entirety and

was cross-examined by learned Addl. Public Prosecutor after seeking

Court's permission. At the same time, he has also not given clean chit to

the appellant. Exclusion of his evidence will not dilute the reliable and

clinching evidence of the victims who had no ulterior consideration to

falsely implicate the appellant with whom they had no grudge and lived in

the same vicinity. Minor contradictions, improvements and discrepancies

highlighted by the appellant's counsel do not affect the core of the

prosecution case to discard the testimony of the injured witnesses in its

entirety. The findings of the trial court on conviction are based upon fair

appraisal of the evidence and warrants no interference.

6. The appellant was awarded RI for four years with fine `

5,000/-. Sentence order dated 14.09.2012 reveals that he was aged about

twenty five years on the day of incident and was the sole bread earner of

the family comprising of aged parents and younger sister. Nominal roll

dated 22.11.2013 shows that he has remained in custody for one year, six

months and eleven days besides remission for four months and nine days

as on 22.11.2013. It further shows that he is not involved in any other

criminal case and is a first offender. His overall jail conduct is

satisfactory. During trial he was on bail and there is nothing to infer that

he indulged in any such activity or misused the liberty. Both the parties

lived in the same vicinity and there is no past history of hostile relations.

The incident had taken place on a trivial issue without any pre-planning or

meditation. The initial confrontation took place with Rakesh Kumar who

suffered superficial injuries. When Amandeep Singh with whom the

appellant had no animosity intervened, he suffered injuries on his body.

The injuries caused were lacerated wounds by blunt object. Considering

these facts and circumstance, sentence order is modified and the

substantive sentence awarded to the appellant to undergo RI for four years

under Section 307 IPC is reduced to RI for three years. Other terms and

conditions of the sentence order are left undisturbed. The appellant shall,

however, deposit `40,000/- (Rupees forty thousand) as compensation in

the Trial Court within fifteen days besides depositing unpaid fine (if any)

and the compensation amount will be released to the victim - Amandeep

Singh after due notice.

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

application also stands disposed of. 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 MAY 02, 2014 / tr