Virendra Singh vs State
2017 Latest Caselaw 4544 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Judgment Reserved on: August 23, 2017
%                               Judgment Delivered on: August 29, 2017

+                           CRL.A. 840/2001
       JASBIR SINGH                                       ..... Appellant
                            Through:      Mr.Anurag Abhishek, Advocate

                                   Versus
       THE STATE                                          ..... Respondent
                            Through:      Ms.Kusum Dhalla, APP for the
                                          State with SI Sanjay Singh, PS
                                          Ambedkar Nagar
AND
+                           CRL.A. 398/2002
       JAGJIT SINGH                                      ..... Appellant
                            Through:      Mr.Anurag Abhishek, Advocate

                                   Versus

       STATE                                              ..... Respondent
                            Through:      Ms.Kusum Dhalla, APP for the
                                          State with SI Sanjay Singh, PS
                                          Ambedkar Nagar.
AND

+                           CRL.A. 399/2002
       VIRENDRA SINGH                                     ..... Appellant
                    Through:              Mr.Anurag Abhishek, Advocate

                                   Versus

       STATE                                              ..... Respondent



CRL.A.Nos.840/2001, 398/2002 & 399/2002                         Page 1 of 18
                             Through:      Ms.Kusum Dhalla, APP for the
                                          State with SI Sanjay Singh, PS
                                          Ambedkar Nagar

CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. Feeling aggrieved by their conviction and sentence awarded vide judgment dated 19th October, 2001 and order on sentence dated 23rd October, 2001 passed in Sessions Case No.292/1996, the appellants Jasbir Singh, Jagjit Singh and Virender Singh have filed these three appeals, which are being disposed of by this common judgment.

2. Vide impugned judgment dated 19th October, 2011, the appellants have been held guilty under Section 307/34 IPC. Vide order on sentence dated 23rd October, 2001, they have been sentenced to undergo RI for three years and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo SI for one month.

3. In brief, the case of the prosecution is that on 24th January, 1990 PW-1 Sh.Pradeep Parwa, S/o Sh.Sudhir Ranjan Parwa, resident of E-II, 256 Madangir, New Delhi visited the police station and informed about the quarrel going on with his brother Akhtar Siddiqui near E-II, 288-89, Madangir, which was recorded vide DD No.8 Ex.PW3/A.

4. ASI Chandan Singh (PW-5) along with HC Hukum Singh (PW-7) left for the spot. On reaching there he found scooter No.DIU 755 was parked near lavatories, lot of blood was found at the spot and broken hockey stick, one bamboo stick and one cap were also lying

there. Injured had already been removed to AIIMS. Head Constable Hukam Singh was left to guard the spot and he reached AIIMS where injured Irshad Akhtar (PW-2) was found admitted. He was opined to be unfit for the statement.

5. In the hospital he met the complainant Shabnam Akhtar (PW-

4), wife of the injured who made statement exhibit PW-4/A on the basis of which FIR No.35/90 under Sections 307/506/34 IPC, Ex.PW-3/B was registered. During treatment of PW-2 several efforts were made to record his statement but he was not found fit for statement. Even after he was shifted to Mool Chand Khairati Ram Hospital, he remained unfit for statement.

6. On 14th February, 1990, the injured was declared fit for statement and thereafter his statement was recorded. Exhibits were sent to CFSL and after completion of investigation all the appellants were sent to face trial.

7. During investigation appellant Jagjit Singh @ Bali was arrested on the basis of secret information and the appellants, Jasbir Singh and Virender surrendered in the Court on 2nd February, 1990. They were made to join the investigation and efforts, which proved unsuccessful, were made to get the knife recovered.

8. During trial all the convicts pleaded not guilty to the charge. The prosecution examined 12 witnesses in support of its case. In the statement under Section 313 Cr.P.C. all the convicts claimed their false implication as the injured was a cheat. Since he was facing trial in many cheating cases and Raja Ram, the leader of that area and Tej

Singh, father of the convict Jasbir wanted him to leave that colony. They preferred not to lead any defence evidence.

9. Learned Trial Court vide impugned judgment held the convicts guilty for the offence punishable under Sections 307/34 IPC for the following reasons:-

(i) The nature of the injuries suffered by the complainant was opined to be dangerous and the weapons of offence used to cause such injuries were knife, hockey sticks and bamboo sticks.

(ii) The statement of the injured is inspiring confidence, hence, merely because the complainant Shabnam Akhtar (PW-4) and the informant Pradeep (PW-1) have turned hostile, is no reason to disbelieve the testimony of the injured.

(iii) Non-joining of the public witnesses, who gathered there at the time of occurrence, is not sufficient to disbelieve the testimony of the injured.

(iv) The occurrence has taken place in the afternoon on 24 th January, 1990 and time of admission of the injured in AIIMS is 3:30 p.m.

(v) Involvement of the injured in cheating cases is no ground for false implication of the convicts when no enmity has been shown between the convicts and the injured.

(vi) Inability of the injured (PW-2) to recollect as to who caused the first injury or who caused the last injury, is not enough to discard his testimony.

10. The appellants are challenging their conviction and order on sentence inter alia on the following grounds:

(i) The two prosecution eye-witnesses namely informant Pradeep (PW-1) and the complainant Shabnam Akhtar (PW-4) who is wife of the injured PW-2, though examined as eye-witnesses have not deposed anything incriminating against the convicts and have not identified them to be the assailants.

(ii) During his examination, as PW-2 Sh.Irshad Akhtar - the injured failed to identify the convict Virender Singh.

(iii) Two other persons named by the injured Irshad Akhtar (PW-2) were Raja Ram and Tej Singh, father of the appellant Jasbir Singh but they have not been chargesheeted which renders the testimony of the injured not credit worthy.

(iv) The appellants were not subjected to Test Identification Parade.

(v) There are material discrepancies in the testimony of the prosecution witnesses which have not been considered by the learned Trial Court to give the benefit of doubt to the appellants.

(vi) Prosecution failed to prove any motive for the appellants to commit the crime.

(vii) The sentence awarded to the appellants is harsh. Since they have faced the agony of trial for about 11 years and had no criminal antecedents a lenient view could have been taken by the learned Trial Court.

(viii) This appeal is also pending for almost 15 years and the appellants have not been involved in any other case.

11. I have heard Mr.Anurag Abhishek, Advocate for the appellants, Ms.Kusum Dhala, APP for the State and also carefully considered the evidence, the circumstances and the probabilities of the case.

12. Perusal of the LCR discloses that criminal law was set into motion when information was received vide DD No.8A Ex.PW-3/A at PS Ambedkar Nagar from PW-1 Pradeep, son of Sh.Sudhir Ranjan Parwa, resident of E-II, 256 Dr.Ambedkar Nagar, New Delhi, aged about 21 years. The informant reported about the quarrel between his brother Akhtar Siddiqui and many other persons near E-II/288-89 near State Bank. On receipt of the said information ASI Chandan Singh along with HC Hukam Singh was sent to the spot to attend the call. ASI Chandan Singh has been examined as PW-5 and HC Hukam Singh (ASI at the date of his examination) has been examined as PW-7 by the prosecution. PW-5 ASI Chandan Singh and PW-7 HC Hukam Singh who first visited the spot had proved the following facts:

(i) On reaching the spot scooter of the injured, DIU 755, was found parked.

(ii) Blood was lying near the scooter and one black cap, pieces of broken hockey sticks, one bamboo stick (danda) having blood stains were lying there.

(iii) Since injured had already been removed to the hospital (AIIMS) leaving PW-7 HC Hukam Singh to guard the spot, PW-5 HC ASI Chandan Singh visited the Hospital. However, the doctor declared him unfit for statement.

(iv) PW-4 Shabnam Akhtar, wife of the injured was present in the hospital and on the basis of her statement Ex.PW-4/A, FIR 35/90 under Section 307/506/34 IPC, Ex.PW-3/B was registered.

(v) The articles lying at the spot and the articles handed over by the hospital were seized and deposited in the malkhana.

(vi) PW-9 Dr.R.Srinivas, Senior Resident, AIIMS had stated that the MLC No.5842 Ex.PW-9/A in respect of Irshad Akhtar was prepared by Dr.R.Mittal who had left the hospital and his present whereabouts were not known. As per the MLC the nature of the injuries were opined to be dangerous with blunt and sharp edged weapons. PW-8 J.K.Ahuja, Record Clerk, Mool Chand Khairati Ram Hospital had been examined to identify the handwriting and signature of Dr.M.K.Gupta, Dr.Sanskriti Bangia working under Dr.K.K.Joshi in respect of the endorsement made by them on the application PW-8/A. These endorsements pertain to the patient being found unfit for statement. These endorsements have been made on the application filed by PW-5 ASI Chandan Singh to seek permission to record the statement of the injured. However, injured was opined to be unfit for statement on 25th January, 1990 at 7:30 PM and 26th January, 1990 at 7:00 PM.

CONTENTION OF THE APPELLANTS

13. Learned counsel for the appellants has submitted that in this case the appellants are not disputing the occurrence or the nature of injury suffered by PW-2 Irshad Akhtar. The appellants are disputing their involvement in this occurrence. PW-1 Pradeep - brother and PW-4 Shabnam Akhtar - wife of the injured, who are the eye-witnesses have not supported the case of the prosecution and have not identified them to be the assailants.

14. Learned Trial Court could not have given undue weightage to the statement of the injured witness as he has admitted in his cross- examination that he is facing trial in four-five cases of cheating. Thus the antecedents of the injured are not clean. The appellants have been falsely implicated in this case as one Raja Ram who is admittedly the leader of the area and Tej Singh, father of the appellant Jasbir Singh wanted him to leave that area because of his involvement in cheating cases. Due to this reason the appellants have been falsely implicated by him to settle his score against them. It has also been contended that knife was not recovered in this case.

15. Learned counsel for the appellants has submitted that despite crowd being gathered, no independent public witness has come forward to prove that the injuries suffered by PW-2 Irshad Akhtar have been caused by the appellants. Further the injured claimed that he remained unconscious for about 10-15 days. He was initially taken to AIIMS then how and by whom he was got shifted to Mool Chand Khairati Ram Hospital, has remained unexplained. He has been shifted to a private hospital just to remain hospitalized for a longer duration so as to prove on record that the nature of injuries suffered by him were dangerous and life threatening to ensure that the appellants are convicted for a graver offence. It has also been contended that the appellants had no motive to give beating to the injured. It has been contended that when the brother and wife of the appellant have preferred not to support the prosecution case, they should have been acquitted in this case.

16. Learned APP for the State submits that the statement of the injured is sufficient to upheld the order of conviction as no motive has been attributed for their false implication.

17. No doubt PW-1 Pradeep and PW-4 Shabnam Akhtar have not supported the case of the prosecution but merely because they have been declared hostile does not have the effect of effacing their testimony. So far as hostile witnesses i.e. PW-1 Pradeep and PW-4 Shabnam Akhtar are concerned, the Court can rely upon that portion of the evidence which appears to be reliable. Just because some of the prosecution witnesses have turned hostile, prosecution case cannot be discarded for that sole reason.

18. In a three Judge Bench judgment reported as Bhagwan Singh vs. State of Haryana (1976) 1 SCC 389, the witness Jagat Singh was declared hospital. The appellant was convicted under Section 165 A of Indian Penal Code. It was contended that the whole case is destroyed since the witness was declared as hostile. In the aforesaid decision the Court held that there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

19. The legal position is well settled that evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him and that evidence of such hostile witness cannot be treated as effaced or washed off record altogether and same can be accepted to extent their version is found to be dependable on careful scrutiny thereof. [Ref. Khujji @ Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 SC 1853].

20. The testimony of PW-1 Pradeep and PW-4 Shabnam Akhtar to the extent they support the prosecution case can be considered by the Court while trying to ascertain as to whether the statement of the injured is credit worthy. DD No.8A Ex.PW-3/A has been recorded at 3:00 PM on 24th January, 1990. The time of incident is same as the injured has been admitted to the hospital (AIIMS) at 3:30 PM. The informant (PW-1) personally visited the police station and only then PW-5 ASI Chandan Singh and PW-7 HC Hukam Singh left for the spot. Scene of crime is not disputed. So even if PW-1 Pradeep has preferred not to support the prosecution case regarding the incident, he has nowhere stated that he did not visit the police station to report about the incident recorded vide DD Ex.PW3/A. Although in DD No.8A Ex.PW-3/A the information Pradeep referred to the injured (PW-2 Irshad Akhtar) as his brother (Bhai), from their name and parentage it is clear that PW-1 Pradeep and PW-2 Irshad Akhtar, the injured are from different religion. May be because of brotherhood feeling, PW-1 Pradeep referred the injured as his brother (bhai). So merely because PW-1 Pradeep, informant has preferred to turn hostile, is no reason to discard the testimony of PW-2 Irshad Akhtar, the injured.

21. PW-4 Shabnam Akhtar is second wife of the injured and on the basis of the statement made by her Ex.PW-3/B the FIR No.35/90 was registered. Although in her statement Ex.PW-4/A she had given vivid description of the incident, specifying the role of each convict by name, during trial, she stated that she reached the spot on getting the information from a child about some quarrel with her husband and

when she reached the spot she saw her husband lying on the road. She did not identify any of the convicts causing injury to her husband or any prior acquaintance with them.

22. PW-4 Shabnam Akhtar in her cross-examination has admitted the following facts:

(i) It was her second marriage with the injured Irshad Akhtar (PW-2) and first wife of the injured is also living in the same colony at some distance.

(ii) Her husband was present with her when Bhagwan Dass (not examined) came to her house to inform that his first wife Shama Akhtar was calling him at her residence.

(iii) She does not dispute her signature on the complaint PW-4/A but stated that she did not know what was written on that.

23. PW-5 ASI Chandan Singh had specifically stated that when he reached the spot no eye-witness was present. In the hospital injured was declared unfit for statement and his wife PW-4 Shabnam Akhtar was present who made the statement Ex.PW-4/A. PW-5 ASI Chandan Singh had no reason to falsely implicate any of the convicts. PW-5 ASI Chandan Singh, who sent the rukka from the hospital, had no personal knowledge about the facts mentioned in the complaint Ex.PW4/A. PW-4 Shabnam Akhtar did not dispute her presence in the hospital and her signature on the complaint Ex.PW4/A. At no point of time, she brought it to the notice of the higher police authorities or the Court that the appellants were not named by her as the assailants.

24. In the complaint Ex.PW-4/A the complainant had given not only the names but even their nick names and addresses when she was present in the hospital and at that time she had no reason to name the appellants to be the assailants nor the IO had any reason to make her name the convicts to be the persons responsible for such condition of her husband.

25. Now the question arises as to whether the statement of injured is sufficient to base the conviction though the police witnesses, who are closely connected to him, have turned hostile.

26. Reliance can be placed on the decision reported as Ram Snehi Dass vs. State (Govt. of NCT) of Delhi Crl.A.874/2010 decided on 17th January, 2013 whereby the High Court of Delhi has held as under:

'5. The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. Mere contradictions/improvements on trivial matters could not render injured's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh vs. Naresh and ors. MANU/SC/0228/2011 : (2011) 4 SCC 324 as under :

27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the

offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)

6. Similarly in another case Abdul Sayed vs. State of Madhya Pradesh MANU/SC/0702/2010 : (2010) 10 SCC 259, Supreme Court laid down :

28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court

has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein'

27. The injured PW-2 has specifically stated that on receiving the information at the house of his second wife that his first wife was calling, he left for her house and when he was about to kick start the scooter, at that time convict Jasbir Singh took out a knife and hit on his abdomen thrice with the knife and other two convicts hit him with

hockey stick and danda. When he raised alarm nobody came to save him but his wife watched the incident.

28. In this case, in view of the nature of injuries suffered by PW-2, his statement could not be recorded immediately after the incident as he was not found fit for the statement. It is not disputed that injured and the convicts were known to each other and in such a situation there was hardly any need to get them identified during Test Identification Parade, especially when all of them have been named in the FIR. The convicts have failed to assign any motive to the injured for making the false statement. PW-2 Irshad Akhtar - the injured might be involved in some cases of cheating but it is not the case of convicts that they were also cheated by him. No prior enmity has been brought on record either by the injured or by the convicts which could be a motive for their false implication.

29. The statement of the injured that he received injuries at the hands of the convicts cannot be rejected just for the reason that he has not given any motive as to why he was attacked. Same is the case with the convicts that they have also not given any motive as to why they would be falsely implicated. The motive appears to be stated by the convicts in their disclosure statement but during trial the convicts as well the injured preferred not to suggest that motive to the injured during his cross-examination or prove their defence. The MLC No.5842 Ex.PW-9/A and the statement of PW-9 Dr.R.Srinivas, Senior Resident, AIIMS proved that the nature of the injury suffered by PW-2 Irshad Akhtar were dangerous and caused by blunt and sharp

object which corroborated the version of the injured PW-2 Irshad Akhtar that he was attacked with knife, hockey stick and danda.

30. Name of all the assailants were given in the complaint Ex.PW- 4/A made at the hospital (AIIMS) immediately after the incident and FIR No.35/90 Ex.PW-3/B has been lodged without any delay.

31. Testimony of injured PW-2 Irshad Akhtar inspires confidence. It is unbelievable that injured after suffering dangerous injuries would falsely implicate the convicts and let the real assailants go unpunished.

32. Keeping in view the duration for which the injured PW-2 Irshad Akhtar remained hospitalized and unfit for statement, the nature of the weapon used i.e. knife, hockey stick and danda, inference can be drawn about the intention of the assailants that they attempted to commit his murder.

33. It is not open to the convicts to seek their acquittal on the basis that Raja Ram and Tej Singh are also named by the injured but no case was made out to chargesheet them. Persual of the record shows that Raja Ram and Tej Singh were kept in column No.2 as there was not enough material to arrest them. Learned Trial Court preferred not to take cognizance against them.

34. In view of the foregoing discussion, the conviction of the appellants under Section 307/34 IPC is upheld.

35. Now the question comes about the sentence being awarded to the convicts for the offence punishable under Section 307/34 IPC. They have been sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/- each, in default to undergo SI for one month.

36. On behalf of appellants, it has been submitted that now they are well settled in their family, they have already remained in custody for about two years and have paid the fine. In view of their family responsibilities, sending them after twenty-seven years of the occurrence to Jail would have negative effect on the future prospects of their children. The occurrence pertains to the year 1990. The trial continued for about 11 years and this appeal is pending for about 16 years. Except the instant case they had not been involved in any other case prior thereto or thereafter.

37. Taking into consideration that the occurrence had taken place about 27 years ago and they are having clean antecedents and already settled in life, it would meet the ends of justice if the substantive awarded to the appellant for committing the offence punishable under Section 307/34 IPC is reduced to the period already undergone by them in this case.

38. Accordingly, the substantive sentence awarded to the appellants for committing the offence punishable under Section 307/34 IPC is reduced to the period already undergone by them in this case. However, in addition to the fine imposed on the appellants by the learned Trial Court, which they have already paid, all the three appellants are further directed to deposit a fine of Rs.1 lac each (total ₹3 lacs) with the Registrar General of this Court. In default of payment of fine, the appellants shall undergo SI for three months.

39. The fine amount of ₹1 lac each (total ₹3 lacs) shall be deposited with the Registrar General of this Court within four weeks from the date of this order subject to furnishing PB/SB each in the sum of

₹25,000/- to the satisfaction of Registrar (Appellate) and furnishing an undertaking by them within one week that they shall deposit the fine within four weeks from the date of this order.

40. In the circumstances, the sentence to be undergone by the appellants in default of payment of fine is deferred for a period of four weeks. It is made clear to all the appellants that if they fail to deposit the enhanced fine amount within four weeks as directed, they shall surrender before the Jail Superintendent to undergo the sentence in default of payment of fine.

41. All the three appeals are allowed only to the extent of modification of order on sentence to the above extent.

42. A copy of this order be sent to the concerned Jail Superintendent for information.

43. Registry is directed to send back the LCR alongwith copy of this order after the above order is complied with by the appellants.

44. Copy of the order be given dasti to the parties under the signature of Court Master.

PRATIBHA RANI (JUDGE) AUGUST 29, 2017 'pg/hkaur'