Delhi District Court
State vs . on 23 April, 2010
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Gopal Gautam @ Vicky
S/o Gopi Chand
R/o H.No. 143, Gali No.1
Chander Lok Shahdara, Delhi.
2. Nitin Jain @ Amit Jain
S/o Vinod Kumar
R/o H.No. 479, Gali NO.3
Chanderlok Shahdara, Delhi
3. Virender Thakur @ Dabbu
S/o Raj Kumar
R/o A-70, Ashok Nagar, Delhi
FIR No. 1071/06
P.S. : Nand Nagri
U/s : 307/34 IPC
Sessions Case No. : 28/09
Date of Institution of case : 04.04.2007
Date on which reserved for Judgment : 01.04.2010
Date of delivery of Judgment : 16.04.2010
JUDGMENT:
Facts of the case are that on 21.12.2006 ASI Sessions Case No.28/09 Page1 /28 2 Rambir received DD NO. 84-B. He along with Ct.Chote Lal reached at GTB Hospital. There ASI Rambir obtained the MLC of injured Ankur Sharma whereupon the injured had been declared fit for statement by doctor. Ankur Sharma made statement before the police to the effect that at about 10.45 p.m he was coming back to his house from Gurgaon after interview for a job and had reached near street No.6, Jagat Puri near his house. There he met three persons namely Gopal Gautam, Amit Jain and Vicky whom he knew previously. They told him that they had gone to his house thrice and had some important work with him (Ankur Sharma) and that he should accompany them to Bhopura. He further stated that he (Ankur Sharma) refused on which they all started persuading him. After this the boy named Gopal Gautam sat on his motorcycle and Amit Jain and Vicky sat on other motorcycle and took him to Bhopura. Ankur Sharma further stated that there those persons asked him for liquor but which Ankur refused and started back for his home. On this, these boys also accompanied him and when they reached on his motorcycle at Police Check Post Sunder Nagri at about 11.30 p.m, there Gopal Gautam made him to stop his motorcycle and told him (Ankur Sharma) that he had not served them liquor and that they would not spare him. He asked Amit Jain and Vicky to Sessions Case No.28/09 Page2 /28 3 teach him (Ankur Sharma) a lesson for not serving them liquor and to kill him. After this Vicky caught hold of him and Gopal Gautam gave him knife blow on left side of his chest and Amit Jain gave him knife blow on the left side of his thigh with an intention to kill him. Ankur Sharma further stated that he raised alarm hearing which police took him to GTB Hospital.
On this statement of the injured Ankur Sharma case was registered by the police. Investigation was carried out. Thereafter, during the investigation the complainant made a supplementary statement wherein he stated that name of Amit Jain which he had given in first statement is in fact Nitin Jain. The name Vicky which was given in the first statement is the nick name of Gopal Gutam. The name of third boy who caught hold of him at the instance of Gopal Gautam is Virender Thakur @ Dabbu who lives at A-70, Ashok Nagar.
Accused Gopal Gautam @ Vicky and Nitin Jain @ Amit Jain were arrested on the identification of Ankur Sharma. Third accused Virender Thakur surrendered before the court on 2.2.2007 and he was arrested in this case. After completion of investigation, challan was filed in the court for offences punishable under section 307/34 IPC.
Ld. M.M after supply of copies etc, committed the case to the court of Sessions.
Sessions Case No.28/09 Page3 /28 4Vide orders dated 24.4.2007, My Ld Predecessor, framed a charge for offences punishable under section 307/34 IPC, to which all the accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined eight witnesses.
PW-1 Ankur Sharma stated that on 20.12.2006, at about 10.30 or 11.00 p.m he was coming back to his house from Gurgaon after interview for a job and reached near street of his house. There he met three persons namely Gopal Gautam, Nitin Jain and Virender Thakur whom he knew previously. He further stated that Gopal Gautam asked him to accompany them to Bhopura to which he (PW-1) refused and told them that he was getting late. Upon this Gopal Gautam sat on his motorcycle and on the motorcycle of Gopal Gautam, other two accused were sitting, they took him to Bhopura. PW-1 further stated that there the accused persons asked him for whiskey. He (PW-1) refused saying that he did not have any money. He further told them that he was going on which accused persons told him that they would also accompany him. He further stated that when they crossed Check Post Sunder Nagri, Gopal Gautam got stopped his bike and stabbed him with knife on the left side of his chest saying that as he (PW-1) Sessions Case No.28/09 Page4 /28 5 had not served them with whiskey, he (PW-1) would have to face the consequences. PW-1 further stated that thereafter accused Virender Thakur caught hold of his hands and accused Nitin Jain stabbed him on his left leg just above the knee and caused injuries. He further stated that thereafter all the three accused left the spot leaving him and his motorcycle there and on his noise, some police officials who were present at the check post came there and he was taken to GTB Hospital. In the hospital his statement Ex. PW1/A was recorded.
PW-1 further stated that since he had received serious injuries, therefore I could not give correct names of the assailants in his statement and after his discharge from the hospital he gave correct names to the IO on 27.12.2006. He further stated that earlier he had given names Gopal Gautam @ Vicky. Real name of Amit Jain was Nitin Jain and real name of Vicky was Virender Thakur.
PW-1 further stated that on 29.12.2006 he accompanied the police to trace the accused persons and reached bus stand of Route No.212 and thereafter went to Janta Flats, Ramleela Ground, Dilshad Garden and finally they reached Gagan Cinema where in the compound, he pointed out two persons namely Gopal Gautam @ Vicky and Amit Jain @ Nitin Jain to the police. He further stated that both of them Sessions Case No.28/09 Page5 /28 6 were arrested vide memo Ex.PW 1/B and PW 1/C and their personal search was conducted vide memo Ex.PW 1/D and PW 1/E. He further stated that his clothes were also seized by the police.
PW-2 Ct.Brij Vir stated that on 31.1.2007 HC Naresh handed over to him two sealed parcels sealed with seal of RBS and GTB respectively for depositing them at FSL Rohini vide RC NO. 365/21. He further stated that he deposited the exhibits at FSL Rohini and handed over the copy of RC to MHC (M).
PW-3 Ct.Chotey Lal stated that in the night of 20/21-12.2006 on receipt of information he along with ASI Ramvir went to GTB Hospital where injured Ankur Sharma met and IO recorded his statement handed over the rukka to him for registration of the FIR. He further stated that he got the case registered and came to the spot i.e M-block, Sunder Nagri at Wazirabad road and handed over copy of FIR along with rukka to IO. He further stated that on 29.12.2006 at the instance of Ankur Sharma accused Gopal Gautam and Amit Jain were arrested by the IO ASI Ram Bir from the compound of Gagan Cinema. They were arrested vide memo Ex.PW-1/B and PW-1/C and their personal search was conducted vide memo Ex.PW1/D and PW1/E. Sessions Case No.28/09 Page6 /28 7 PW-3 further stated that on 30.12.2006 he again joined investigation of the case with IO and in pursuant to his disclosure statement accused Nitin Jain @ Amit led police party to District Park Nand Nagri and got recovered a knife from eastern side of the Park and sketch Ex.PW3/A of the knife was prepared, sealed with seal of RBS and seized vide memo Ex.PW3/B. This witness correctly identified the knfie Ex.P-1.
PW-4 Mohd. Yunush Khan stated that in the intervening night of 20/21-12.2006, he was at duty at Sunder Nagri beat and was patrolling in the area. He further stated that at about 11.30 p.m he reached Bhopra to Wazirabad road. At that time he heard alarm Bachao-Bhachao and went towards the place from where the voice was coming. He saw three boys were fleeing on a motorcycle and on seeing him they said police had come. He further stated that he could not see the number of the motorcycle as it was night time. He further stated that when he reached the spot, he saw a boy smeared with blood and name of that boy came to be known as Ankush Sharma. That boy had sustained knife blows by three boys. He further stated that he shifted the injured to G.T.B hospital and got him admitted there. MLC of the injured was prepared and he handed over the MLC to IO. He further stated Sessions Case No.28/09 Page7 /28 8 that blood stained clothes of injured were seized by the IO and sealed and seized vide memo Ex.PW4/A. PW-4 further stated that the three boys who had fled away from the spot were the accused persons.
PW-5 Dr.Prabhakar Yadav stated that on 20.12.2006 he examined Ankur Sharma who was brought in the hospital with alleged history of assault. He examined and injured and prepared his MLC Ex.PW5/A. He further stated that thereafter the injured was referred to surgery emergency.
PW-6 ASI Dayal Singh was the duty officer and he stated that on 21.12.2006 on receipt of rukka from Ct.Chote Lal, sent by ASI Ram Vir, he recorded FIR in the case and proved the copy thereof as Ex. PW6/A. He also proved his endorsement Ex.PW 6/B on the rukka. He also proved the copy of the DD No.84-B as Ex. PW6/C. PW-7 ASI Rambir Singh is IO of the case. He stated that on 21.12.2006 on receipt of DD NO.84-B Ex.-PW 6/C he along with Ct. Chotey Lal went to GTB Hospital where he found patient named Ankur Sharma admitted in the hospital vide MLC Ex.PW-5/A. He further stated that he obtained the MLC whereon the injured was declared fit for statement. He further stated that he recorded the statement Ex.PW1/A of injured and put his endorsement Ex.PW7/A on the same and Sessions Case No.28/09 Page8 /28 9 got the case registered through Ct.Chotey Lal. He further stated that he had seized the sealed parcel sealed with seal of GTB Hospital vide memo Ex. PW-4/A which was given to him by Mohd. Yunus. He further stated that thereafter he along with Ct. Yunus went to the spot, prepared the site plan Ex.PW7/B at instance of Mohd. Yunus as Const. Mohd. Yunus had reached the spot when the incident was going on and he shifted injured Ankur Sharma to Hospital. He further stated that meanwhile, Ct.Chotey Lal came at the spot with original rukka and copy of FIR (Ex.PW 6/A) which he handed over to to him. He further stated that he searched for the accused wanted in this case but they could not be found He further stated that during the investigation, on 27.12.2006 injured Ankur Sharma met him and he gave his explanation regarding names of the assailants stating that the real name of Vicky is Gopal Gautam and the assailant who caught him in the incident is named Virender Thakur @ Dabbo. The name of third assailants he stated that he was Nitin. He further stated that he recorded the statement of Ankur Sharma in this regard under section 161 Cr.P.C and searched for the accused persons on that day also.
He further stated that on 29.12.2006 he along with complainant Ankur Sharma and Ct.Chotey Lal went in search Sessions Case No.28/09 Page9 /28 10 of the accused and reached at Gagan Cinema Nand Nagri and inside the compound of Gagan Cinema two persons namely Nitin Jain and Gopal Gautam were identified by the complainant as being the assailants. He further stated that after their identification he asked some public persons to join the proceedings but none agreed. He along with Ct.Chotey Lal apprehended the two assailants identified by the complainant and interrogated them and arrested them vide memo Ex. PW1/C and PW 1/B and conducted their personal search vide memo Ex PW 1/E and PW1/D. He further stated that he recorded their disclosure statements which is Ex.PW7/C and PW-7/D. He further stated that thereafter accused Nitin Jain led them to District Park Nand Nagri in the Eastern portion and took out a knife from there and produced it before him and it was a kitchen knife. There were slight spots of blood on the blade of knife, it was 10 inches in length and blade was of six inches, handle was of orange colour. He further stated that he prepared sketch of the knife Ex.PW-3/A, put the knife in a cloth parcel, sealed it with seal of RBS, seized the same vide memo Ex.PW-3/B and seal after use was given to Constable Chotey Lal.
IO ASI Rambir further stated that the third accused namely Virender Thakur wanted in this case, surrendered Sessions Case No.28/09 Page10 /28 11 before the Court. After taking permission from the court he arrested him vide memo Ex.PW 7/E and conducted his personal search vide memo Ex.PW-7/F. He further stated that after completion of the investigation and submitted the file to the SHO. During the course of investigation he had send the exhibits of this case to FSL and obtained the result of the same which is Ex. P-A and Ex. P-B. PW-8 Dr.Pradeep Saini stated that on 8.2.2007 on the basis of the surgical records, he opined the nature of injuries sustained by patient Ankur Sharma as grievous caused by sharp edged object on the MLC Ex. PW5/A. He proved his opinion on the MLC as Ex.PW 8/A. Statements of accused persons were recorded under section 313 Cr.P.C. All the accused denied allegation against them and claimed themselves to be innocent.
Accused Gopal Gautam stated that he was at his house with his friend namely Bunty and his family. They were talking to each other. He further stated that he remained at the house for the whole night continuously on 20.12.2006 and was not involved in the incident nor caused any injury to Ankur Sharma. He further stated that he has no previous criminal record. At that time he was working in HDFC Bank and at present he is doing A-level Computer Course.
Sessions Case No.28/09 Page11 /28 12Accused Nitin Jain stated that he was having dinner at his house when police came house and told that they had to make some inquires from him. They took him to the police station where Gopal Gautam was already detained. Thereafter he was falsely implicated in this case after obtaining his signatures on blank papers. He further stated that he does not know any Ankur Sharma.
Accused Virender Thakur stated that he does not know how his name has cropped up in this case and he had himself surrendered before the court as the police was harassing his family. He further stated that on the day of the incident he was at the house of his uncle (Chacha) for the whole night. He did not cause any injury to any body. He further stated that he is doing his personal work at present and at that time of incident, he was working under one Advocate.
In their defence, accused persons examined four witnesses.
DW-1 Suraj Chauhan stated that Gopal Gautam is his friend and residing in his neighbourhood. On 20.12.2006 he went to house of Gopal Gautam and remained there from 6.00 p.m to 10.30 p.m and during that period, Gopal Gautam was inside the house along with his parents and other family Sessions Case No.28/09 Page12 /28 13 members.
DW-2 Gopi Chand stated that Gopal is his son and on 20.12.2006 when he returned back to his house at 6.00 p.m, Gopal was also present at the house along with his friend. He further stated that friend of his son remained at their house till 10.00 p.m and thereafter Gopal went to sleep and did not go outside from the house in the night of 20.12.2006 after 6.00 p.m. DW-3 Uma Shanker stated that on 20.12.2006 accused Virender Thakur @ Dabbu was present at his house on the occasion of birth of his daughter Shivani. He further stated that celebration of birthday continued till 10/11.30 p.m and thereafter, Virender Thakur slept at his house. He further stated that police had harassed Virender Thakur.
DW-4 Vinod Kumar stated that Nitin Jain is his son and on day of the incident he was present at the house with him and other children and wife. He further stated that his wife was not well on that day and he had returned from his work at about 6.00 p.m. He further stated that accused Nitin Jain remained with him for whole night.
I have heard Sh.Ashok Kumar Addl.PP for the State. I have also heard Sh.A.K.Singhal Ld.Counsel for accused Gopal Gautam, Sh.S.K.S.Bahduaraia Ld.Counsel for accused Sessions Case No.28/09 Page13 /28 14 Virender Thakur and Sh.C.S.Tyagi Ld.Counsel for accused Nitin. I have also gone through the case file and the authorities cited by Ld.Counsel for the accused persons.
It was contended by Addl.PP for the State that the prosecution witnesses have fully established the case of the prosecution that it were the accused persons who had caused injuries on the person of injured Ankur Sharma with an intention to kill him.
It was submitted by the Ld.Counsel for accused persons that the accused persons were never involved in the commission of the offence as alleged by the prosecution. It was submitted by Ld.Counsels that accused persons were not present at the spot at the time of incident. It was submitted by Ld.counsel for accused Gopal Gautam and Nitin Jain that they were present at their house at the time of alleged incident. It was submitted by Ld.Counsel for accused Virender Thakur that accused Virender Thakur was at the house of one Sh.Uma Shankar on the occasion of birthday of daughter of Uma Shanker and stayed there till 10/11.30 p.m. All the accused persons have taken the plea of alibi. The Hon'ble Supreme Court in a case reported as ''Binay Kumar Singh Vs. State of Bihar (1997)1 SCC-283' has observed that the burden of proving an alibi is entirely on Sessions Case No.28/09 Page14 /28 15 the accused and strict proof is required for establishing an alibi. The word alibi means 'elsewhere', and that word is used for convenience when an accused takes recourse to a defence that when the occurrence took place he was so far away from the place of occurrence that is extremely improbable that he would have participated in the crime.
The accused examined defence witnesses in their defence to prove their plea of alibi. DW-1 Suraj Chauhan and DW-2 Gopi Chand stated that Gopal Gautam was present at his house along with his friend and remained at the house till 10.00 p.m. DW-3 Sh.Uma Shanker stated that on 20.12.2006 accused Virender Thakur @ Daboo was present at his house till 10/11.30 p.m on the occasion of birthday of his daughter Shivani.
DW-4 Vinod Kumar Jain, who is father of Nitin Jain stated that Nitin was at his house with his family at the time of incident at the time of the incident.
All the defence witnesses were cross-examined by the Ld.Addl.PP. They admitted in their cross-examination that they did not make any complaint anywhere regarding the false implication of accused. If it was so, that the accused persons were falsely implicated in this case, then their family members Sessions Case No.28/09 Page15 /28 16 would have filed complaint somewhere in protest of the false implication. But, no such complaint has been filed.
The Hon'ble Supreme Court in a case reported as State of Haryana Vs. Sher Singh 1981 Cr.L.J. 230 (SC) has observed that if an accused takes the plea of alibi, he must establish it.
The Hon'ble Supreme Court in a case reported as ''Duth Nath Pandey Vs. State of Uttar Pradesh AIR 1981 SC- 911'' has observed that plea of alibi can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
In the present case, I am of the view that the defence witnesses examined by the accused persons have failed to prove that the accused persons were not present at the spot at the time of the incident. They have also failed to prove that the accused persons were so far away, at the relevant time that their presence at the place of incident was not possible as held in 'Duth Nath Pandey Vs. State of Uttar Pradesh AIR 1981 SC-911''(Supra) and ''Binay Kumar Singh Vs. State of Bihar (1997)1 SCC-283 Supra.
So, the plea of alibi taken by accused persons cannot be believed.
Sessions Case No.28/09 Page16 /28 17It was submitted that identity of the accused persons has not been established. It was submitted that the complainant in his statement Ex.PW1/A has stated the names of the assailants as Gopal Gautam, Amit Jain and Vicky. It was submitted that the persons who are facing trial are Gopal Gutam @ Vicky, Nitin Jain and Virender Thakur @ Daboo. In this regard, it is important to mention here that the complainant made a supplementary statement wherein he stated that name of Amit Jain which he had given in first statement is in fact Nitin Jain. The name Vicky which was given in the first statement is the nick name of Gopal Gutam. The name of third boy who caught hold of him at the instance of Gopal Gautam is Virender Thakur @ Dabbu who lives at A-70, Ashok Nagar.
This contention of the Ld.Counsel cannot be sustained as making of supplementary statement by the complainant was not challenged in the cross-examination of the IO. Moreover, it has come in the testimony of the complainant that the accused persons were known to him. He also stated that as he has received serious injuries, therefore he could not give correct names of the assailants and later on when he was discharged from the hospital, he gave correct names of the accused persons to the police. The fact that accused persons Sessions Case No.28/09 Page17 /28 18 namely Gopal Gautam and Nitin Jain were known to the complainant Ankur Sharma also remained un-controverted.
It was further the contention of the Ld.Counsel that both the accused i.e Gopal Gautam and Nitin Jain were not subjected to TIP and as such the identity of the accused persons cannot be said to have been established. In this regard it is clear from the evidence of PW-1 Ankur Sharma that both the said accused were arrested from the compound of Gagan Cinema at the instance of the complainant PW-1 Ankur Sharma. It has also come in the statement of Ankur Sharma that they were previously known to him. So, when the accused persons were known to the complainant and were arrested at his instance, then there was no question of putting said to accused to TIP. Hence, this contention of Ld.Counsel does not drive any merit.
It was contended by Ld.Counsel for accused Gopal Gautam and Nitin Jain that both the accused have been falsely implicated in this case. It was further the submission of the Ld.Counsels no public witness was joined at the time of arrest of these accused. It is well known fact that the public persons hesitate to join the investigation with police and they rarely join the police in investigation or other proceedings. This is not a ground to discard the statement of prosecution witnesses if Sessions Case No.28/09 Page18 /28 19 they are otherwise trustworthy and reliable.
It was further the contention of the Ld.Counsel for both the accused that statement of Ankur Sharma is the sole testimony and as per Ld.Counsel it was not safe to rely on the un-corroborated testimony of this witness.
It was submitted by Ld.Counsel for accused Virender Thakur that identity Virender has not been established. It was submitted that the accused Virender Thakur was not known to complainant Ankur Sharma prior to the incident nor accused Virender Thakur was arrested on the identification of complainant Ankur Sharma nor the TIP of accused Virender Thakur was conducted.
On the other hand it was submtited by Addl.PP that the complainant/injured Ankur Sharma has identified the accused Virender Thakur in the court. It was further the submission of the Ld.Addl.PP one other witness PW-4 HC Mohd. Yunus Khan who came at the spot after hearing the cries of Ankur Sharma has also identified the accused Virender Thakur in the court.
The perusal of the cross-examination PW-1 Ankur Sharma reveals that he had stated in his cross-examination that he knows Virender Thakur since the case is going on and he had no friendship with Virender Thakur. He also admitted that Sessions Case No.28/09 Page19 /28 20 he had identified accused Virender Thakur for the second time in the court. He stated that he identified the accused earlier in the court of Sh.S.C.Malik Ld.ASJ. Thus, from the cross- examination of PW-1 Ankur Sharma it is revealed that Virender Thakur was not known to Ankur Sharma and he has identified the accused for the first time in the court of Sh.S.C.Malik Ld.ASJ when the statement of Ankur Sharma was recorded. So far as the testimony of PW-4 HC Yunus is concerned, it is revealed from his statement that he arrived at the spot after hearing the alarm raised by injured Ankur Sharma and then he took the injured to the hospital. He has also stated that he had seen the assailants while they were fleeing from the spot. He even could not see the number of the motorcycle on which they fled. It was also dark and under these circumstances, in my view it was not possible for HC Yunus to see the assailants. Further more, the accused Virender Thakur has not been arrested at the instance of HC Yunus nor the accused Virender Thakur was got identified by HC Yunus in TIP.
It is revealed from the testimony of PW-1 Ankur Sharma and PW-4 HC Yunus that they have seen the accused Virender Thakur first time in the court.
It was held in case reported as Mohan Lal Gangaram Gehani Vs. State of Maharastra 1982 Supreme Sessions Case No.28/09 Page20 /28 21 Court Cases (Cri) 334 that testimony of a witness who identified the accused for the first time in the court without knowing him before, in absence of any T.I parade, would be valueless and unreliable.
Therefore in view of above discussed facts and the Judgment Mohan Lal Gangaram Gehani Vs. State of Maharastra 1982 Supreme Court Cases (Cri) 334, (Supra) the identity of accused Virender Thakur has not been established beyond reasonable doubt.
It was further the submission of the Ld.Counsels that it was not safe to rely upon the sole and un-corroborated testimony of PW-1.
It has been held time and again by Hon'ble Supreme Court that it is the quality of evidence which matters it and not the number of the witnesses. This contention of Ld.Defence Counsel is to be ignored in view of the judgment of Hon'ble Supreme Court of India which is reported as Lallu Manjhi and another Vs. State of Jharkhand,'' 2003 1 AD (SC)-597'' wherein it has been held that Conviction of accused can be based even on the testimony of a solitary witness when his evidence is found to be wholly reliable.
The perusal of testimony of PW-1 Ankur Sharma reveals that he is consistent and trustworthy witness. He was Sessions Case No.28/09 Page21 /28 22 cross-examined at length on behalf of all the accused persons but nothing could surface on record, which could shake this witness from his stand. Hence, this contention of the Ld.Counsel does not hold much ground.
The next contention of the Ld.Counsel for accused Gopal Gautam and Nitin Jain was that both the accused were arrested in the presence of PW Ankur Sharma and on his pointing out but their arrest and personal search memos do not bear the signatures of PW-1 Ankur Sharma. Perusal of arrest memos and personal search memos of said two accused shows that the same bear the signatures of complainant Ankur Sharma. So this contention of the Ld.Counsel for the accused does not hold any ground and is liable to be ignored.
As far as the signatures of the complainant Ankur Sharma on the disclosure statement of accused Gopal Gautam and Nitin Jain are concerned, it is correct that disclosure statements of said two accused do not bear the signatures of Ankur Sharma. In this regard, the IO has given the explanation that it was late night and the complainant (PW-1) was in a hurry to go to his home. This explanation given by the IO is not challenged in his cross-examination. Even otherwise, this cannot be made ground for discarding the statement of witnesses if they are otherwise reliable.
Sessions Case No.28/09 Page22 /28 23It was further the contention of Ld.Counsel that the prosecution has failed to prove that that assailant had the intention to kill the complainant PW-1 Ankur Sharma. It was submitted that the opinion regarding nature of injures on the person of injured Ankur Sharma as grievous in nature has not been proved. It was further the contention of the Ld.Counsel that nature of injuries was given on the basis of surgical records which was not produced in the court. As such, the injures sustained by injured Ankur Sharma should be taken as simple in nature. In support of his contention, Ld.Counsel relied upon cases titled Narinder Kumar Vs. State of Delhi 1981 C.L.R. 180, Bishnu Vs. State 1996 (2) C.C.Cases 373 (HC), Mamu Lal Vs. State 1995 JCC 63, 2008 (2) 834 and 1994 JCC 522.
In a case under section 307 IPC, the court is to see the circumstances, in which the injury has been caused. The intention which brings the case within section 307 IPC, must be inferred from the totality of all the facts and circumstance of the case. The intention, because of not capable of being proved by direct evidence as a fact, can only be deduced or inferred from the other facts which are proved. The various relevant circumstances from which the intention can be gathered may be stated as under:
Sessions Case No.28/09 Page23 /28 24(i) nature of weapon used
(ii) the place where the injuries were caused
(iii) The nature of the injuries caused, and
(iv) the opportunity available to the accused.
In the instant case it has come in the testimony of PW-5 Dr.Prabhakar Yadav the wound was present over the chest on left side and over left thigh. Dr.Padeep Saini PW-8 opined the nature of injuries on the person of injured Ankur Sharma to be grievous in nature on the basis of surgical records. Perusal of testimony of PW-1 Ankur Sharma shows that he was given knife injury with knife on the left side of his Chest. The place where the injury was caused to the complainant was a isolated place and it was night time when no one was present around. As far as nature of injuries opined to be grievous are concerned, the injures were caused on the chest of the injured which is a vital part of the body and could have resulted in death of the injured. All the accused persons ran away from there after they saw Ct.Yunus coming to the spot on hearing the alarm raised by Ankur Sharma. Thus, it can be said that the accused persons had attacked on PW-1 Ankur Sharma with an intention to kill him and had caused injuries on vital part of his body i.e Chest which could have Sessions Case No.28/09 Page24 /28 25 resulted in his death.
The other contention of the Ld.Counsel for accused Gopal Gautam and Nitin Jain are that it is the story of the prosecution that the complainant was on his motorcycle with the accused persons and accused persons ran away from the spot on their motorcycle after causing injuries to complainant Ankur Sharma. It is was contended by Ld.Counsels that the motorcycle of the complainant which was lying at the spot was not seized by the police and there is no explanation on record as to what happened to the motorcycle of the complainant.
This contention of the Ld.Counsel that what happened to the motorcycle of complainant does not affect the prosecution case, so this contention of the Ld.Counsel cannot be considered.
The other contention of the Ld.Counsel for accused Nitin Jain was the recovery of knife at the instance of accused Nitin has been shown. It is further the contention of the Ld.Counsel that there was no mention in the disclosure statement of Nitin Jain that he could get the knife recovered, so the recovery of knife at the instance of accused Nitin is not admissible in evidence.
It is correct that there is no mention of this fact in the disclosure statement of accused Nitin Jain. But it has come Sessions Case No.28/09 Page25 /28 26 in the statement of police witness that the knife Ex.P-1 was recovered at the instance of accused Nitin Jain. Even if for the sake of arguments, we consider the contention of the Ld.Counsel, at the most we can say that no knife was recovered, Even otherwise if weapon of offence is not recovered, this is not fatal to the prosecution case. In my view, this is not a ground to discard the statements of prosecution witnesses if they are otherwise reliable and trustworthy. In this regard I am supported by the following judgments:
The Hon'ble Supreme Court of India in a case titled as Lakhan Sau Vs. State of Bihar reported as 2000 Cr.L.J.-2959 (SC) has observed that non-recovery of weapon does not detract from the case of the prosecution, where the direct evidence is acceptable.
The Hon'ble Supreme Court of India in a case titled as Krishna Mochi Vs. State of Bihar reported as (2002)6 S.C.C-81 has observed that recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate the accused from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found to be unimpeachable.
The contradictions in the statement of PWs pointed Sessions Case No.28/09 Page26 /28 27 out by Ld. Defence Counsel regarding time of incident are minor contradiction and which are bound to occur in their statement and the same does not affect the prosecution case. Such types of contradiction are to be ignored in the light of the following judgment.
The Hon'ble Supreme Court in a case reported as Krishna Pillai Sree Kumar vs. State of Kerala AIR 1981- 1237 has held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.
Thus, in view of the facts discussed above, I am of the considered opinion that prosecution has been successful in proving that the accused Gopal Gautam and Nitin Jain in furtherance of their common intention caused knife injuries on the person of PW-1 Ankur Sharma with an intention to kill him. So, both the accused are held guilty for the offence Sessions Case No.28/09 Page27 /28 28 punishable under section 307/34 IPC and convicted there under.
So far as accused Virender Thakur is concerned, the prosecution has not been successful in proving beyond reasonable doubt that the third person with accused Gopal Gautam and Nitin Jain was accused Virender Thakur who participated in the crime in which injuries were caused on the person of Ankur Sharma. So, accused Virender Thakur is acquitted of charge against him by giving him the benefit of doubt. His bail bond stands cancelled. Surety discharged.
Accused Gopal Gautam and Nitin Jain be heard separately on the point of sentence. Announced in open Court on 16th April 2010 (Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No.28/09 Page28 /28 29 IN THE COURT OF SURINDER KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - NORTH EAST KARKARDOOMA COURTS:DELHI State Vs.
1. Gopal Gautam @ Vicky S/o Gopi Chand R/o H.No. 143, Gali No.1 Chander Lok Shahdara, Delhi.
2. Nitin Jain @ Amit Jain S/o Vinod Kumar R/o H.No. 479, Gali NO.3 Chanderlok Shahdara, Delhi FIR No. 1071/06 P.S. : Nand Nagri U/s : 307/34 IPC ORDER ON THE POINT OF SENTECE 23.4.2010 Present: Sh.Ashok Kumar Addl.PP for the State.
Convict Gopal Gautam with Sh.AShok Singhal Advocate Convict Nitin Jain with Sh.B.D.Sharma Advocate. Arguments heard on the point of sentence.
It is submitted by Ld.Addl.PP for the State that the maximum punishment should be awarded to the convicts. It was submitted by Ld.Addl.PP that the convicts gave stab injury to the Sessions Case No.28/09 Page29 /28 30 complainant Ankur Sharma with an intention to kill him and they do no deserve any leniency.
It is submitted by Sh.Ashok Singhal Ld.Counsel for convict Gopal Gautam @ Vicky that he should be released on probation. It was submitted that he is not a previous convict and he is doing some computer course. It was further submitted that he has roots in society and he is not a professional criminal. Ld. Counsel relied upon authority reported as Khem Chand Vs. State of Hon'ble Delhi High Court 1987 (2) 753 Crimes (Volume-VIII).
Sh.B.D.Sharma Ld.Counsel for convict Nitin Jain that convict Nitin Jain was a juvenile at the time of incident and his date of birth is 4.10.89. It was further submitted that he is not a previous convict and that he is doing some private job. It was further prayed that convict Nitin Jain be released on probation.
I have considered the rival contentions.
In the present case, the convicts have caused stab injuries on the chest of complainant Ankur Sharma with an intention to kill him and in such a case, convicts can be sentenced for life. In view of the facts of the case, I do not think it proper or in the interest of justice to release the convicts on probation.
The plea taken by Sh.B.D.Sharma Ld.Counsel for convict Nitin Jain that he was juvenile at the time of incident, has been raised for first time that too at the time of arguments on sentence. Therefore, I do not see any force in the said plea of Sessions Case No.28/09 Page30 /28 31 Ld.Counsel.
Taking into consideration the over all facts and circumstance of the case and also the young age of the convicts, both the convicts are hereby sentenced to undergo Rigorous Imprisonment for two and half years each, with fine of Rs.15,000/- each, for offence punishable under section 307/34 IPC. In default of payment of fine, the defaulter shall further undergo Simple imprisonment for six months.
The convicts shall be given benefit under section 428 Cr.P.C.
Copy of judgment and order on sentence be given to the convicts free of cost today itself.
File be consigned to Record Room.
Announced in open Court on 23rd April 2010 (Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No.28/09 Page31 /28