Satish @ Shastri vs The State
2016 Latest Caselaw 2678 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 3rd MARCH, 2016
                                DECIDED ON : 6th APRIL, 2016

+            CRL.A. 1381/2013 & CRL.M.A.No.10777/2015
      SATISH @ SHASTRI                                  ..... Appellant
                           Through :   Mr.Prakash Sinha, Advocate with
                                       Mr.Yogesh Goel, Advocate.
                           versus
      THE STATE                                         ..... Respondent
                           Through :   Mr.Amit Gupta, APP.


+            CRL.A. 1358/2013
      HIRA LAL @ LUCKY                                  ..... Appellant
                           Through :   Mr.Prakash Sinha, Advocate with
                                       Mr.Yogesh Goel, Advocate.
                           versus
      THE STATE                                         ..... Respondent
                           Through :   Mr.Amit Gupta, APP.
AND
+            CRL.A. 1385/2013
      RAVINDER @ KALA                                   ..... Appellant
                           Through :   Mr.Prakash Sinha, Advocate with
                                       Mr.Yogesh Goel, Advocate.
                           versus
      THE STATE                                         ..... Respondent
                           Through :   Mr.Amit Gupta, APP.

Crl.A.1381/2013 & connected appeals.                          Page 1 of 13
        CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 30.08.2013 of learned Addl.

Sessions Judge in Sessions Case No.47/12 arising out of FIR No.114/09

PS Dwarka by which the appellants - Satish @ Shastri (A-1), Hira Lal @

Lucky (A-2) and Ravinder @ Kale (A-3) were convicted under Sections

307/34 IPC, they have filed the instant appeals to assail its correctness,

propriety and legality. By an order dated 10.09.2013, A-1 was sentenced

to undergo RI for seven years with fine `25,000/-; A-2 and A-3 were

awarded RI for four years with fine `25,000/- each.

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

sheet was that on 23.02.2009 in between 05.30 to 06.00 p.m. in front of

MCD Primary School, village Kakrola, the appellants in furtherance of

common intention along with their associates inflicted injuries to the

complainant - Sunil Kumar in an attempt to murder him. The incident

was reported to the police at 06.15 p.m. vide Daily Diary (DD) No.20

(Ex.PW-12/A). The investigation was assigned to ASI Dharam Pal who

after recording victim - Sunil Kumar's statement (Ex.PW-2/A) lodged

First Information Report. The victim was taken initially to Ayushman

Hospital and later on referred to Max Hospital where he was medically

treated and operated. Statements of the witnesses conversant with the

facts were recorded. The appellants and their associates - Vinod @ Sonu

and Vibhishan @ Sumit were arrested. Exhibits collected during

investigation were sent to Forensic Science Laboratory for examination.

Upon completion of investigation, a charge-sheet was filed against all of

them in the Court. In order to establish its case, the prosecution examined

sixteen witnesses. In 313 Cr.P.C. statements, the appellants denied their

involvement in the crime and pleaded false implication. They did not

produce any evidence in defence. It is relevant to note that accused

Vibhishan @ Sumit was discharged vide order dated 28.01.2010. After

appreciating the rival contentions of the parties and scrutinizing the

evidence produced by the prosecution, the Trial Court, by the impugned

judgment acquitted Vinod @ Sonu of the charges. State did not challenge

their acquittal / discharge. Being aggrieved and dissatisfied, the instant

appeals have been preferred by the appellants.

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

examined the file minutely. Appellants' counsel urged that the Trial

Court did not appreciate the evidence in its true and proper perspective

and fell into grave error to base conviction upon the testimonies of the

interested witnesses only. Major discrepancies and infirmities emerging

in the statements of the prosecution witnesses were ignored without

cogent reasons. On the same set of evidence, Vinod @ Sonu was

acquitted by the Trial Court. The Trial Court overlooked the fact that the

complainant had oblique motive to falsely implicate A-1 as he belonged to

rival political party. Counsel further urged that crime weapons were

allegedly recovered from an 'open' place. Moreover, PW-1 (Dr.Kumud

Rai) categorically informed that the injuries sustained by the victim were

not possible with the 'knives' recovered in the instant case. Counsel

pointed out certain interpolations in the MLC (Ex.PW-6/A) to suspect its

authenticity. Learned Addl. Public Prosecutor urged that no sound

reasons prevail to disbelieve the injured witness.

4. The occurrence took place on 23.02.2009 between 05.30 -

06.00 p.m. Daily Diary (DD) No.20 (Ex.PW-12/A) came into existence at

06.15 p.m. on getting information that a 'boy' has been stabbed. PCR

arrived at the spot promptly and took the victim to Ayushman Hospital.

MLC (Ex.PW-6/A) records the arrival time of the victim at the said

hospital at 06.30 p.m. FIR was lodged promptly and rukka (Ex.PW-16/B)

was sent at 09.10 p.m. after recording victim's statement (Ex.PW-2/A).

The complainant gave detailed account as to how and in what manner, he

was stabbed on his vital organs by A-1 and his associates numbering three

or four. He gave their description and claimed to identify and recognise

them if produced before him. Since the FIR was lodged without undue

delay, there was least possibility of the complainant to manipulate or

fabricate a false story in a short interval. A-1 was named in the FIR and

specific role was assigned to him in the crime.

5. In his Court statement, the complainant / victim while

appearing as PW-2 fully supported the prosecution and proved the version

given by him to the police at first instance without any variation. He

deposed that on 23.02.2009 at about 05.00 p.m. when he along with his

cousin Joginder Kumar was coming from Kakrola Mor in Santro Car

No.DL 4C 9512 and reached near Primary School, Kakrola, A-1 arrived

there on his vehicle and stopped it in front of his car. A-1 along with his

associates - Vinod @ Sonu, Ravinder @ Kale (A-3) and Heera Lal @

Lucky (A-2) came out of the car; opened its door and started stabbing him

by a knife on his neck. Thereafter, he was dragged out of the car. A-2

and A-3 caught hold of his hands and A-1 and Vinod @ Sonu stabbed him

with knife all over his body. Joginder Kumar ran away from the spot due

to fear. After inflicting injuries on his various body parts, the assailants

fled the spot. He further deposed that A-1 had told him 'tu meri biwi ka

pichha aise nahin chhodega'. A-1 suspected him to have objectionable

affairs with his wife and an altercation had taken place between them

previously also on that issue. The witness further stated that after about

15 or 20 minutes, he was taken to Ayushman Hospital, Dwarka in CAT

ambulance and his statement (Ex.PW-2/A) recorded there. In the cross-

examination, he disclosed that the occurrence had taken place at 05.00

p.m. He fairly admitted that Vinod @ Sonu was not named by him in his

statement (Ex.PW-2/A). He further disclosed that names of the assailants

were not revealed by him to the examining doctor as he had not asked for

it. He was discharged from Max Hospital on 03.03.2009. He denied the

suggestion that no such incident had happened and the accused persons

were falsely implicated in this case.

6. On scanning the testimony of the victim in entirety, it stands

established that the injuries were inflicted by the appellants in furtherance

of their common intention by a sharp object to the complainant / victim.

No ulterior motive has been assigned or proved prompting the

complainant to falsely implicate all the appellants in the crime. A-2 and

A-3 were even unacquainted with the complainant prior to the incident.

In the absence of any prior animosity, the victim is not expected to let the

real offenders go scot-free and to implicate innocent ones. Though A-2

and A-3 were not named in the FIR, their description was given and the

victim claimed to identify and recognize them on being shown. During

investigation, both A-2 and A-3 were apprehended and applications for

conducting Test Identification Proceedings (Ex.PW13/A and Ex.PW13/C)

were moved. However, for the reasons known to A-2 and A-3, they

declined to participate in the Test Identification Proceedings. Adverse

inference is to be drawn against them for not participating in the TIP

Proceedings. PW-2, the victim, identified them in his Court statement. In

the cross-examination, the accused persons did not deny their presence at

the spot at the relevant time. They did not claim if all or anyone of them

were / was present at some other specific place that time. Injuries

sustained by the victim are not under challenge. The complainant had

sustained 'grievous' injuries on various body parts and the injuries

suffered by him cannot be taken as self-inflicted merely to rope in the

appellants in the crime. Material facts proved by the victim remained

unchallenged and uncontroverted in the cross-examination and his

testimony inspires implicit confidence. The conviction can be founded

upon the testimony of even a single witness if it proves in clear and

precise term, the overt role assigned to the author (s) of crime.

7. PW-3 (Joginder) has corroborated PW-2's version on

material aspects. He had accompanied the victim in the car and had fled

the spot due to fear or witnessing the victim being stabbed. He went to A-

1's house and informed his uncle Suraj about the stabbing incident. PW-4

(Suraj Bhan) on getting information immediately rushed to the spot and

accompanied the victim to Ayushman Hospital. MLC (Ex.PW-6/A)

reveals that he had brought the victim to the hospital in CAT ambulance.

In the cross-examination, no suggestion was put if he was not present at

the spot or had not accompanied the victim in the ambulance. PW-3

(Joginder) deposed that when their Car No.DL 4C 9512 reached near

Primary School, Kakrola Mor; a Maruti (Alto) bearing registration No.

DL 3531 came from the opposite direction and stopped in front of their

car. A-1 along with three or four individuals came out of Alto and started

stabbing Sunil by a knife. After he (Sunil) was dragged out of the vehicle,

A-2 and A-3 caught hold of his hands and A-1 and Vinod @ Sonu

inflicted knife injuries on his head, face, chest, neck and belly. Due to

fear, he ran away from the spot and apprised Sunil's uncle Suraj Bhan

about the incident. When they returned to the spot, CAT ambulance had

already arrived and they took the victim to Ayushman Hospital. In the

cross-examination, he disclosed himself to be a resident of village Barana,

Distt. Jhajhar (Haryana) and on that day, he had come to Delhi to see his

paternal aunt. Police recorded his statement at about 09.00 or 09.30 p.m.

at Ayushman Hospital. He took about ten minutes to reach A-1's house.

He knew A-1 before the incident and had seen A-2, A-3 and Vinod @

Sonu for the first time on the day of occurrence at the crime spot.

Apparently, despite searching cross-examination, no material discrepancy

or infirmity could be extracted to disbelieve the witness's version. His

presence at the spot with the victim was not challenged. Again, no motive

was assigned to him to make a false statement.

8. Ocular testimonies of PW-2 (Sunil) and PW-3 (Joginder)

have been corroborated by medical evidence and there is no conflict

between the two. PW-6 (Dr.Raj Kumar) from Ayushman Hospital who

medically examined Sunil deposed that he was brought there with the

alleged history of assault by a knife by known persons. He noted number

of injuries detailed in the MLC (Ex.PW-6/A) on the victim's body.

Nature of wounds sustained by him was opined 'grievous'. In the cross-

examination, he elaborated and clarified that the patient was admitted at

about 06.40 p.m. on 23.02.2009 when he was conscious but drowsy. He

had given alleged history informing that he was able to recognize the

assailants. PW-6 (Dr.Raj Kumar) claimed that the name of the assailants

as Satish etc. disclosed by the victim subsequently were recorded

clarifying that initially the victim had not disclosed the names of the

assailants but later on had informed that he was stabbed by Satish Kumar

and his four associates. He further stated that the injuries suffered by the

patient were inflicted by a 'sharp' edged weapon. This independent

witness from Ayushman Hospital having no animosity with the appellants

has no ulterior reasons to make a false statement or to manipulate the

contents of the MLC (Ex.PW-6/A). PW-1 (Dr.Kumud Rai) from Max

Hospital where Sunil was referred was medically treated and operated on

reference, proved the detailed report (Ex.PW-1/A). He was not cross-

examined and the facts stated by him remained unchallenged. The victim

was discharged on 03.03.2009. He further informed that the victim had

suffered 'fracture' of left parietal bone. PW-9 (Dr.Shailender Jain) had

declared the patient fit to make statement vide endorsement (Ex.PW-9/A)

at around 07.30 p.m.

9. The prosecution has proved A-1's motive to inflict grievous

injuries on victim's vital organs as he suspected him to have illicit

relations with his wife. A quarrel or altercation had taken place between

the two previously also. Apparently, to teach a lesson to the complainant,

A-1 with the assistance of his associates A-2 and A-3 inflicted injuries to

the victim finding a suitable opportunity when he was coming in his car

towards the village.

10. Trivial discrepancies and infirmities highlighted by the

appellants are inconsequential as they do not affect the core of the

prosecution case. Non-recovery of the crime weapons used in inflicting

injuries is not fatal. As per the prosecution, after the arrest, A-1 and

Vinod @ Sonu pursuant to their disclosure statement knives (Ex.P3 &

Ex.P4) identified by the complainant were recovered. PW-6 (Dr.Raj

Kumar) was, however, of the opinion that all the injuries sustained by the

victim were highly unlikely to have been caused with the knives (Ex.P3 &

Ex.P4). It appears that A-1 and his associate misled the investigating

agency about the use of correct weapons. If the assailants had recovered a

wrong crime weapon deliberately, the Investigating Agency cannot be

faulted for that. It has come on record that injuries were inflicted by a

'sharp' object; its non-recovery is not fatal. It is true that on the same set

of evidence Vinod @ Sonu was given benefit of doubt and was acquitted

of the charge but it does not help the appellants as the victim had not

named Vinod @ Sonu despite having prior familiarity in the FIR. The

Trial Court was of the view that the witness had exaggerated his version.

So far as the appellants are concerned they were duly identified and

recognised by the victim and PW-3 (Joginder). A-2 and A-3 had declined

to participate in the Test Identification Proceedings. The complainant was

fair enough to exonerate Vibhishan @ Sumit and did not opt to identify

him in TIP proceedings leading to his discharge by an order dated

28.01.2010.

11. In 313 Cr.P.C. statements, the appellants did not furnish

plausible explanation to the incriminating circumstances proved against

them; they did not produce any evidence in defence to falsify the positive

testimonies of the prosecution witnesses. A-1 in his 313 Cr.P.C.

statement took the plea of strained relations with the complainant as they

belonged to rival political parties. However, no such suggestion was put

to the complainant in the cross-examination to confront him about it. The

complainant had sustained thirteen injuries on various body parts and was

medically treated at two different hospitals for sufficient period. It

reflects that the assailants had intended by all means to make an attempt to

commit murder. Repeated stab blows were inflicted intentionally on the

vital regions of the victim. Appellants' conviction under Sections 307/34

IPC based upon fair appreciation of the evidence deserves no intervention.

The conviction is affirmed.

12. Considering the specific role played by the appellants, the

Trial Court has awarded different sentences to A-1, and A-2 and A-3.

Sentence order reveals that A-1 also suffered conviction in case FIR

No.207/2004 PS Uttam Nagar under Section 307 IPC in Sessions Case

No.302/2006 and was sentenced to undergo RI for three years with fine

`5,000/-. Under these circumstances, Sentence Order requires no

modification except that the default sentence for non-payment of fine

would be two months instead of six months.

13. The appeals stand disposed of in the above terms. Pending

application also stands disposed of.

14. 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 APRIL 06, 2016 / tr