Delhi District Court
Kedar Singh vs State, 1996 (1) Cc Cases 100 And Mohd. on 30 April, 2010
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 1/2010
STATE
versus
1. NOOR ALAM,
S/O MOHD. ANSARI,
VILLAGE/PO CHITINI,
HANMAN NAGAR,
PS BHABHTIYAHI,
DISTT. SUPAUL, BIHAR.
2. NOOR SALAM,
S/O MOHD. HANIF,
VILLAGE/PO CHITINI,
HANMAN NAGAR,
PS BHABHTIYAHI,
DISTT. SUPAUL, BIHAR.
3. MOHD. HAFAZ ALAM (Proclaimed Offender)
S/O ABDUL GAFUR ALAM,
VILLAGE/PO KAMALPUR,
PO SANKRIT NIRMALI,
PS BALIYA BAZAR,
DISTT. SUPAUL, BIHAR.
FIR No. : 326/05
Police Station : Timarpur
Offence Under Section : 307/34 IPC
S. C. No.1/2010 Page 1 of 44 pages
2
Date of committal: 29.09.05
Date of taking up the matter for the first time:02.01.10
Date of conclusion of arguments: 19.04.10
Date of judgment: 28.04.10
Counsel for State: Sh. I U H Siddiqui, Additional Public Prosecutor
Counsel for Accused: Sh. Abdul Aziz, Advocate
JUDGMENT
1. Prosecution case is as follows. On 01.07.05 DD No.78B was recorded at PS Timarpur to the effect that at about 11:10pm, N59 Operator reported over intercom that near Nand Lal Jhuggies, Mukherjee Nagar Police Picket one person had been shot at and taken to Aruna Asaf Ali Hospital by Ct. Girdhari; a copy of DD No.78B was assigned to SI Rajneesh, who proceeded to the spot alongwith Ct. Bijender; and on the information being conveyed, the SHO also proceeded to the spot with his staff. The investigating officer (IO) SI Rajneesh on reaching the spot, namely ganda nullah, Pusta Gandhi Vihar, Timarpur found blood scattered on the spot and was informed by the public persons that the injured had been shifted by PCR van to the Aruna Asaf Ali Hospital. Since no eye witness was present on the spot, the IO after informing the senior officers summoned the crime team and photographer on the spot and S. C. No.1/2010 Page 2 of 44 pages 3 thereafter, leaving Ct. Bijender for protection of the spot, IO proceeded to Aruna Asaf Ali Hospital.
2. At the Aruna Asaf Ali Hospital, the IO obtained MLC of the injured Samir Ul Hassan on which the doctor had endorsed the injured fit for statement. In his statement, the injured stated that he is a resident of Bihar and working as labourer in a shop in Kamla Market and many of his co villagers are engaged in similar petty jobs in Kamla Market area; that one of his such co villagers is Noor Salam with whose family the injured was on inimical terms but after coming to Delhi, Noor Salam used to interact with him well superficially, though often Noor Salam used to reagitate old disputes and express annoyance; that on 01.07.05 when the injured was sitting with Noor Salam in Kamla Market alongwith two friends of Noor Salam namely Noor Alam and Hafaz, Noor Salam came up with an offer to arrange a small get together for all of them at the place of his friend in Gopal Dairy; that all four of them reached Mukherjee Nagar at about 10:45pm on a bus and Noor Salam led them by foot from ganda nullah pusta onwards; that when they reached on an isolated dark place on pusta, suddenly Noor S. C. No.1/2010 Page 3 of 44 pages 4 Salam caught hold of the injured from behind and when the injured tried to rescue himself, Hafaz assaulted him with fists and fell him on ground; that Noor Salam exhorted Noor Alam to shoot and kill the injured so that their dispute is finished forever; that Noor Alam took out a gun and fired on the face of the injured; that when the injured got up and tried to run away, Noor Alam fired another shot, which hit the injured on his back and he fell down; that when the injured screamed for help, crowd gathered and all the three accused persons fled the spot; that police brought the injured to the hospital.
3. After recording the above statement of the injured, IO returned to the spot where crime team was already present. The IO obtained report of scene inspection and photographs and got the FIR registered on the statement of the injured Samir Ul Hassan for offence under Section 307/34 IPC. During investigation, IO recorded statements of witnesses, prepared site plan and arrested the accused persons. After recording statements of the accused persons, IO obtained police remand of accused Noor Salam to recover the weapon of offence but could not be succeed. After sending the exhibits to FSL, Rohini, S. C. No.1/2010 Page 4 of 44 pages 5 awaiting results chargesheet was filed against the accused persons for offence under Section 307/34 IPC.
4. Upon committal of case, my learned predecessor framed charge against the accused persons for offence under Section 307/34 IPC to which they pleaded not guilty. During pendency of trial, accused Hafaz Alam jumped bail and was subsequently declared proclaimed offender by my learned predecessor vide order dated 01.11.06. Till this stage, accused Hafaz Alam could not be arrested, as such the present accused are only accused Noor Alam and accused Noor Salam. In support of their case, prosecution examined 16 witnesses, whereafter the entire evidence was put to the accused persons in their statements under Section 313 CrPC; accused Noor Salam opted to personally step into the box as solitary defence witness. I have heard Sh. IUH Siddiqui, Additional Public Prosecutor for State, who was assisted by Sh. SP Singh, counsel for complainant defacto and Sh. Abdul Aziz counsel for accused persons and perused the entire record.
5. Briefly stated, prosecution evidence is as follows.
6. PW1 is the injured Sameer Ur Hasan, who stepped S. C. No.1/2010 Page 5 of 44 pages 6 into the box to depose on oath the factum of assault on him as described above and proved his statement Ex. PW1/A on which the FIR was registered. PW1 narrated the entire incident as described above including the role played by each of the accused persons in the assault. PW1 deposed that he remained hospitalised for 10-15 days after the incident and his treatment was continuing. A court observation was recorded by my learned predecessor during the testimony of PW1 that PW1 had been brought to the court on a cot. Learned defence counsel specifically stated before my learned predecessor that he did not want to cross examine this witness. Thereafter, PW1 was alive and remained under treatment for more than an year before he died, no application was moved by any of the accused persons seeking to recall PW1 for further cross examination. As reflected from order dated 04.12.09 of my learned predecessor, the injured ultimately died on 28.01.07. Hence, testimony of the injured PW1 remains unchallenged.
7. PW2 is Sh. Ravi Kumar, a TSR driver who deposed that on 01.07.05 when he alongwith his friend Amar was returning home via Mukherji Nagar ganda nullah pusta at about S. C. No.1/2010 Page 6 of 44 pages 7 10:30pm to 10:45pm, they heard sound of firing twice from the side of kuccha pusta and saw the injured lying on ground with blooding oozing out and screaming for help; that he and Amar went and informed Munna Pradhan of the jhuggies about the incident; that he first informed police picket of Mukherji Nagar and then reached the spot where the injured Sameer told that he had been injured by Noor Salam, Noor Alam and Hafaz Alam on account of old enmity after they brought him to the spot on the pretext of a get together. In his cross examination, PW2 was confronted with his previous statement Ex. PW2/DA in which it was not recorded that Amar was his friend; that the timing was 10:30pm; that they met Munna Pradhan of jhuggies; that he informed the police picket; and that friends of the injured had caused the injuries.
8. PW3 is HC Yashpal , who was posted as MHC(m) in PS Timar Pur on 02.07.05. PW3 deposed about deposit eight pullandas vide three separate seizure memos in the malkhana and about sending of three sealed parcels to FSL Rohini on 29.07.05 and one sealed parcel containing bullet to CFSL Chandigarh on 29.12.05 followed by receipt of results on S. C. No.1/2010 Page 7 of 44 pages 8 22.03.06 and 26.02.06. PW3 proved the relevant entries of malkhana results as Ex. PW3/A.
9. PW4 HC Jagdish Chander who was posted as duty officer at the relevant time proved FIR registered in this case as Ex. PW4/A.
10. PW5 Smt. Geeta Kant, who was running an STD-PCO booth in Nand Lal Jhuggi area at the relevant time deposed that on 01.07.05 at about 10:50pm one Ravi called up PCR from her booth informing that near ganda nullah Mukherjee Nagar some persons had fired upon and injured someone. In her cross examination PW5 stated that she did not give any bill to the caller namely Ravi since no such bill is printed for local STD MTNL booth.
11. PW6 is Sh. Amar Singh, a TSR driver and friend of PW Ravi. PW6 deposed that on 01.07.05 after parking his TSR at Indira Vikas Colony when he was going home alongwith Ravi and reached between nullah and kachcha pushta they heard sound of two fires from firearm; when they rushed towards the sound of fire, they found the bleeding injured Samir-ul-Hasan crying for help; that the injured told them that he was inimical S. C. No.1/2010 Page 8 of 44 pages 9 to one Noor Salam, who brought the injured under the pretext of dawat alongwith Hafaz Alam and Noor Alam and thereafter they fired upon him to kill him; that Ravi went to inform the police from a nearby STD booth whereafter PCR van came and took the injured to the hospital. PW6 was cross examined by learned counsel for both the accused persons mainly on the recording of his statement; as regards the events narrated by PW6 in chief examination, only suggestions were extended in cross examination, which were denied by the witness. However, in cross examination PW6 admitted that injured did not tell him anything but explained that the facts were told by the injured to the police officials.
12. PW7 is Dr. Vijay Khari who was working as CMO in Aruna Asaf Ali Hospital on 01.07.05. PW7 deposed that on 01.07.05 the injure Samir-ul-Hasan was brought to the hospital by PCR and one public person namely Amar. PW7 proved MLC of the injured as Ex. PW7/A. In cross examination PW7 stated that the alleged history recorded on the MLC was given by the patient himself.
13. PW8 is Inspector Sube Singh of mobile crime team, S. C. No.1/2010 Page 9 of 44 pages 10 who deposed having visited the spot of occurrence on 12.07.05 and proved his spot inspection report as Ex. PW8/A.
14. PW9 HC Ramphal who was posted as DD writer in PS Timar Pur at the relevant time proved a copy of DD NO. 78B as Ex. PW9/A.
15. PW10 Ct. Manoj Kumar who was posted as duty constable at Trauma Centre at the relevant time deposed that during treatment of the injured one bullet was recovered from body of the injured which was kept in sealed parcel, seized by the IO vide memo Ex. PW10/A.
16. PW11 is SI Rajneesh Sharma, IO of the case who deposed about his visit to the spot upon receipt of DD NO. 78B, summoning of crime team and photographer, his visit to the hospital and recording of the statement of the injured after obtaining MLC, collection of crime team report by him and sending the statement of injured for registration of FIR after recording endorsement Ex. PW11/A on the same; PW11 also deposed having recorded statements of witnesses, having prepared siteplan Ex. PW11/B, having lifted blood sample, blood stained earth and control earth as well as a chappal from spot S. C. No.1/2010 Page 10 of 44 pages 11 and having converted the same into sealed parcels seized vide memo Ex. PW11/C, having seized the pullanda containing clothes of the injured and one wrist watch delivered to him by duty constable of Aruna Asaf Ali Hospital vide memo Ex. PW11/B and having seized one sealed pullanda containing bullet removed from the body of the injured vide memo Ex. PW10/A. PW11 further deposed that on 02.07.05 he alongwith Ct. Randhir and Ct. Vijender went in search of the accused persons and arrested them from shop no. 29 Kamla Market vide arrest memos Ex. PW11/E-G and took their personal search vide memos Ex. PW11/H-K and recorded their disclosure statement Ex. PW11/L-N, whereafter all the accused persons pointed out the place of occurrence vide memos Ex. PW11/P1-P3. PW11 also deposed having sent the exhibits to CFSL and proved the forensic reports as Ex. PX, PY and PZ, whereafter having completed investigation, he filed the chargesheet in court. In his cross examination, PW11 stated that he met 8-10 public persons on the spot but did not record their statements; that he recorded the statements of the injured at about 12:30am; that during his second visit to the hospital at about 4:00am he met the public S. C. No.1/2010 Page 11 of 44 pages 12 witnesses Amar Singh and Ravi Kumar and recorded their statements but did not seize their clothes; that he recorded statement of Smt. Geeta Kant in her PCO.
17. PW12 Ct. Brijsukumar deposed that on 02.07.05 he was posted as duty constable at Aruna Asaf Ali Hospital and after collecting from doctor a sealed pullanda containing clothes of the injured and one wrist watch, he handed over the same to the IO who seized these articles vide seizure memo Ex. PW11/D.
18. PW13 HC Rajpal of mobile crime team deposed that on 02.07.05 he took photographs of the spot and proved the three print outs of photographs as Ex. PW13/A colly with negatives as Ex. PW13/B colly.
19. PW14 is HC Vijender who was posted in PS Timarpur and joined investigation with the IO SI Rajneesh deposed about the various steps taken during investigation and arrest proceedings of the accused as described above. PW14 identified the blood stained earth collected from the spot as Ex.P1A, blood soaked cotton collected from the spot as Ex.P1B, earth sample collected from the spot as Ex.P1C, bullet collected from trauma centre as Ex.P1D and chappal collected from the spot as Ex.P1E.
S. C. No.1/2010 Page 12 of 44 pages 13 In his cross examination, PW14 stated that he reached the spot for the first time at 11:15pm but he did not remember the vehicle on which he reached the spot; the he left the spot with rukka for registration of FIR at 01:45am; that they remained in trauma centre for about two hours; that few public persons were present when they reached on the spot but he could not tell as to if statement of anyone was recorded by the IO; that pointing out of the spot was done by accused persons at about 10:00pm on the next day and at that time no public person was present; that at the time of recording disclosure statements of accused persons people were passing about but he could not tell if statement of any public persons was recorded; that he went on motorcycle to the police station for getting the FIR registered.
20. PW15 is Ct. Randhir Singh of PS Timarpur, who had joined investigation with the IO after the IO reached trauma centre. PW15 described various steps taken during the investigation and arrest proceedings as described above. In his cross examination, PW15 stated that he reached the trauma centre at about 05:00pm on 02.07.05 and they reached Kamla Market at about 06:30pm to arrest the accused, who were sitting S. C. No.1/2010 Page 13 of 44 pages 14 in front of the closed shop and at that stage no public person was present there.
21. PW16 is a record clerk of trauma centre, who proved before my learned predecessor the admission and discharge record of the injured at trauma centre as Ex.PW16/A1 to A3, opinion as regards nature of injuries described on the MLC as Ex.PW16/A4 and X-ray report of the injured as Ex.PW16/A5. As reflected from records, initially in order to prove the above described medical documents, the concerned doctors namely Dr. Nishant and Dr. Pankaj Jain were summoned but the reports came that they had left the hospital, so Medical Superintendent of Trauma Centre was directed to send some doctor who could identify the signatures and handwritings of the said two doctors; thereafter one doctor Ashish Chaudary appeared from Trauma Centre to state that no such doctor was available who could identify signatures and handwritings of the said two doctors as even the head of department during the tenure of those two doctors had left the hospital; it is under these circumstances, that my learned predecessor summoned the record clerk from trauma centre to prove this medical record.
S. C. No.1/2010 Page 14 of 44 pages 15
22. No other evidence was brought by prosecution.
23. The entire evidence was put to both the accused persons in their statements recorded under Section 313 CrPC. Both the accused persons denied correctness of the prosecution evidence and stated that they have been falsely implicated in this case by their co-villager on account of old enmity and litigation pertaining to land.
24. Accused Mohd. Noor Salam stepped into the box as solitary defence witness and deposed that the complainant party are his co-villagers, who are involved in four criminal cases including case FIR No.51/07 Ex.DW1/1; that he had no enmity with the complainant but has been falsely implicated; that once the injured requested him for loan and on being declined, the injured threatened him with consequences; that after sometime the incident occurred and brother of the injured took his name in this case; that the day when the injured was examined in the court, the injured did not want to name him in this case but brother of the injured compelled the injured to do so as a pre condition for medical treatment; that he has been implicated in this case due to previous enmity. In his cross examination, DW1 S. C. No.1/2010 Page 15 of 44 pages 16 admitted having not told in his statement under Section 313 CrPC that the injured had been compelled by brother of injured to name him in this case; that no cross examination was done of the injured on these lines; that he did not point out before any presiding officer that his counsel had not properly cross examined the injured.
25. During final arguments, learned Additional Public Prosecutor took me through entire evidence on record and argued that prosecution has successfully proved their case beyond reasonable doubt. It was argued that unchallenged testimony of injured PW1 in itself is sufficient of bring conviction on the accused persons. It was further argued that although there was no postmortem, death of the injured took place during continuance of medical treatment and hence the same was on account of gun shot injury caused to him by accused persons. It was further argued that all the public witnesses fully supported case of prosecution and despite cross examination, their testimony remains unshaken.
26. Per contra, learned defence counsel argued that accused persons have been falsely implicated in this case on S. C. No.1/2010 Page 16 of 44 pages 17 account of old enmity. It was also argued that in view of inmical relations between the injured and the accused, it is not believable that they would plan a get together as alleged by the injured. It was further argued that it is not plausible that accused would remain in the same area during a period of 24 hours after having fired gun shots on the injured. It was argued that only one bullet has been recovered and weapon has not been recovered. Learned defence counsel placed reliance on the judgments of Hon'ble Delhi High Court in the case of KEDAR SINGH vs STATE, 1996 (1) CC CASES 100 and MOHD. AARIF vs STATE, 1996 (1) CC CASES 297 in support of his argument that on account of enmity the accused persons have been falsely implicated in this case; it was observed in these cases by the Hon'ble High Court that enmity between the families of the deceased and the accused could give rise to a motive for murder as well as for false implication and mere motive is not sufficient to base conviction.
27. The following portion in the case of P.V. NARASIMHA RAO vs STATE through CBI, 2002 (2) CC CASES 162 illuminates path of the trial courts in especially a case of the present kind as S. C. No.1/2010 Page 17 of 44 pages 18 regards appreciation of evidence:
"73. Efforts should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of facts and circumstances as spelled out through the evidence, depending on the facts of each case. {JT 1999(1) SC 149 Mohan Singh and Another vs State of MP} "Falsus in uno, Falsus in omnibus" does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, Chand Khan and Another vs State of UP (1995) 5 SCC 448. The maxim Falsus in uno, Falsus in omnibus is not a sound rule to be applied in India (AIR 1973 SC 1409 Ranbir Singh and Others vs State of Punjab)
74. 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. (AIR 1981 SC 1237 S. C. No.1/2010 Page 18 of 44 pages 19 Krishna Pillai Sree Kumar vs State of Kerala). Exaggeration and falsehood in prosecution evidence on points which do not touch the core of the prosecution story are not to be given undue importance, Dharamdas and Others vs State of UP 1973 SCC (Crl) 765." (bold emphasis is mine)
28. To recapitulate, the prosecution case is based on the unchallenged testimony of the injured, corroborated by testimony of two public persons who saw the injured immediately after the assault and medical evidence reflecting gun shot injuries on the injured. Argument of defence is untruthfulness of the injured, false implication due to enmity between the parties and non recovery of the weapon of offence.
29. As described above, the injured Samir-Ul-Hasan appeared in the box as PW1 and specifically deposed that he knew all the accused persons, that in the evening of 01.07.05 accused Noor Salam invited him to a friend's place in Gopalganj for a get together dinner; that at about 09:30pm alongwith accused persons he boarded a bus from Kamla Market and got S. C. No.1/2010 Page 19 of 44 pages 20 down at Mukherjee Nagar, whereafter they started going on foot; that when they reached an isolated place on ganda nullah at about 10:45pm, accused Noor Salam caught hold of him from back and when he tried to free himself, accused Hafaz hit fist blows and fell him on the ground, whereafter accused Noor Salam exhorted Noor Alam to shoot and kill him whereafter Noor Alam took out a countrymade pistol and fired a bullet that hit right side of his face and when he tried to run away, accused Noor Alam fired another shot that hit his back and he fell down screaming for help; that when people collected, accused persons ran away. This testimony of injured PW1 remains unchallenged. As described above, despite opportunity, learned defence counsel opted not to challenge testimony of PW1 by way of cross examination. It was not a case of the usual expressions in the cross examination "Nil. Opportunity given"; the expressions used by my learned predecessor were "defence counsel states that he does not want to cross examine the witness. Nil. Opportunity given".
30. It is nobody's case that the defence counsel by mistake opted not to challenge the testimony of PW1 by cross S. C. No.1/2010 Page 20 of 44 pages 21 examination. In his defence evidence deposing as DW1 also accused Noor Salam did not allege that it was a mistake on the part of defence counsel not to challenge the testimony of PW1. Rather, even during final arguments no such stand was taken by the learned defence counsel.
31. Further, as per record injured PW1 was examined on 13.12.05 and as per order dated 11.11.09 of my learned predecessor, the injured died on 28.01.07. Although injured remained alive for more than one year after his testimony, his recall for cross examination was not sought.
32. Hence, there is unchallenged testimony of injured implicating the accused persons for murderous assault on him.
33. The abovesaid unchallenged testimony of injured PW1 is corroborated by medical evidence in the form of MLC Ex.PW7/A. The MLC describes gun shot wound on right side of face and gun shot entry wound on back over thoracic spine. Surgery notes recorded on MLC Ex.PW7/A also reflect gun shot injuries of the injured PW1 and describe the injured as paraplegic with loss of sensation in both lower limbs.
34. Duty constable Manoj of Trauma Centre deposed S. C. No.1/2010 Page 21 of 44 pages 22 having handed over the bullet recovered from body of the injured to the IO which was seized by the IO vide memo Ex.PW10/A.
35. Unchallenged testimony of injured PW1 is further corroborated by testimony of PW2 Ravi Kumar and PW6 Amar Singh, the two TSR drivers who heard the noise of gun shots and reached the spot to find the injured lying bleeding on the ground screaming for help and the injured told them immediately after the incident names of the culprits. Presence of PW6 Amar Singh on the spot is also confirmed by PW7 Dr. Vijay Khari, as per whom the injured was brought to the hospital by PCR van and public person Amar. Rather, as reflected from cross examination of PW7, Dr. Khari the alleged history on the MLC was given by the injured PW1 himself. Despite substantial cross examination, testimony of PW2 Ravi and PW6 Amar Singh remains unshaken.
36. The only argument advanced by learned defence counsel to challenge truthfulness of testimony of PW1 is that since the parties were on inimical terms, it is not believable that they would make a programme for a get together. But this S. C. No.1/2010 Page 22 of 44 pages 23 argument does not appear to be sound in view of specific statement of the injured that he had inimical terms with the family of accused Noor Salam in their village but after coming to Delhi, Noor Salam used to superficially behave with him in a proper manner though often he would dig old graves. Under such circumstances, I do not find it unbelievable that the injured would fall in trap laid by the accused persons and accompany them for the get together. Even the FIR Ex. DW1/1 and the other 2-3 FIRs, genuineness whereof was admitted by the prosecution were not involving the direct issues between the injured Samir-ul-Hasan and the accused Noor Salam.
37. Rather it is unbelievable that injured PW1 who suffered such serious injuries that rendered him bedridden for so long would shield the actual culprit and name the accused persons merely on account of enmity between the two families.
38. In the case of HIRA SINGH vs STATE, 2008 CrLJ 2133 a division bench of Hon'ble Uttranchal High Court citing certain judicial precedents laid down by the Hon'ble Supreme Court observed thus:
"13.......the injured witness stands on a higher pedestal than ordinary eye witness. It is also well S. C. No.1/2010 Page 23 of 44 pages 24 settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured witness cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy .......
14......... By now it is well settled principle of law that animosity is a double edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault........."
39. In the case of SONELAL vs STATE OF MP 2009 I AD (Cr) (SC) 263, Hon'ble Supreme Court held as under:
"6. Merely because the eye-witnesses are family members their evidence cannot per se be discarded.
When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the S. C. No.1/2010 Page 24 of 44 pages 25 witnesses for furthering prosecution version.
Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.......
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses.
Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such S. C. No.1/2010 Page 25 of 44 pages 26 an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
...........
13. The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event S. C. No.1/2010 Page 26 of 44 pages 27 connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also. [See: State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)]." (underlining emphasis is mine)
40. In the case of INDRA PAL SINGH (supra) cited by the prosecution, it was held as under:
"14. It is well-settled that if the eye witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would honestly be interested in S. C. No.1/2010 Page 27 of 44 pages 28 ensuring that real culprits are punished. We do no find any merit in any of the submissions of the appellants; therefore, we confirm the convictions."
41. In contrast with the case law cited above, which dealt with witnesses of crime who were related to the victim, the case in hand is of the victim himself who specifically described role of each of the accused persons in the murderous assault on himself. As described above, nobody disputes that the injured PW1 suffered gunshot injuries on right side of his face as well as his back bone and in any case these injuries are proved with the medical evidence. It is not possible to accept that victim of such injuries would name someone else and shield the actual culprit.
42. Then comes the argument of non recovery of weapon of offence. No doubt, the investigating officer should have recovered the countrymade revolver with which bullets were fired on the injured and the same was not done. Although, disclosure statement Ex. PW11/M of accused Noor Salam cannot be read since the same did not lead to any recovery, a perusal thereof for limited purpose would show that after the S. C. No.1/2010 Page 28 of 44 pages 29 incident he returned the weapon to one Pappu. There is nothing on record to show any serious efforts made by the investigating officer to recover the weapon from Pappu. The question is as to whether for this failure on the part of investigating officer which could be anything between utter incompetence to negligence to even tacit support of the investigator, the accused persons would be entitled to be acquitted? The answer is in negative.
43. In the case of AMAR SINGH vs BALVINDER SINGH, 2003 (2) SCC 518, Hon'ble Supreme Court held that failure of the investigating officer in sending the firearms and the empties for comparison to the forensic lab cannot throw out the prosecution case when the same is established from the testimony of the eye witnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the accident.
44. In the case of KARNEL SINGH vs STATE OF MP, (1995) 5 SCC 518, Hon'ble Supreme Court held that in case of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting S. C. No.1/2010 Page 29 of 44 pages 30 an accused person solely on the ground of defective investigation as that would amount to playing in the hands of investigating officer where the defective investigation is intentional on his part.
45. In the case of PARAS YADAV vs STATE OF BIHAR, (1999) 2 SCC 126 and in the case of RAMBIHARI YADAV vs STATE OF BIHAR, (1998) 4 SCC 517 Hon'ble Supreme Court observed in such cases, story of prosecution has to be examined de hors such omissions and contaminated conduct of investigating officials, otherwise the mischief would perpetuated and justice would be denied to the complainant party, which would shake the confidence of the people in not merely the law enforcing agency but even administration of justice.
46. In the case of ANWAR-UL-HAQ vs STATE OF UP, 2005 (10) SCC 581, Hon'ble Supreme Court held that merely because the weapon of offence was not recovered during investigation, testimony of eye witnesses corroborated by the medical evidence cannot be discarded.
47. In the case of ALAGARSAMY vs STATE, 2009 V AD (Cr) S. C. No.1/2010 Page 30 of 44 pages 31 (SC) 345, Hon'ble Supreme Court cited the judgment of the apex court in the case of STATE OF KARNATAKA vs K. YARAPPA REDDY, 1999 (8) SCC 715, in which it was held that if other evidence on scrutiny is found credible and acceptable, the court should not be influenced by the mechinations demonstrated by the investigating officer in conduct of investigation since investigation is not the solitary area for judicial scrutiny in a criminal trial and criminal justice should not be made a casualty for wrongs committed by the investigating officer if the court is convinced that testimony of a witness is true.
48. As described above, testimony of the injured PW1 is clear and cogent and not even challenged by way of cross examination despite opportunity. Despite opportunity for more than one year no request was made to recall PW1 for cross examination and rather as reflected from testimony of accused Noor Salam deposing as DW1, it was never alleged that decision of defence counsel not to cross examine PW1 was in any manner beyond instructions of the accused persons. It is not a case where accused were deprived of legal assistance in the trial; it is their own counsel who opted not to cross examine PW1 and not S. C. No.1/2010 Page 31 of 44 pages 32 to recall PW1 ever during his life time. Further, as described above testimony of injured PW1 is corroborated by medical evidence as well as testimony of two public persons who reached the spot immediately after the occurrence. As such, failure on the part of investigating officer to take steps for recovery of the weapon of offence and the second bullet cannot invite acquittal for accused.
49. Therefore, the evidence on record proves beyond reasonable doubt that on 01.07.05 the accused persons assaulted the injured PW1 in a manner that accused Noor Salam caught hold of the injured from behind and when the injured tried to save himself, accused Hafaz Alam assaulted the injured with fists and fell him on the ground, whereafter accused Noor Salam exhorted accused Noor Alam to shoot the injured dead and thereafter accused Noor Alam fired a shot that hit on right side of face of the injured and when the injured tried to run away, accused Noor Alam fired the second shot that hit the injured in his back.
50. In the cases of VASANT VITHU JADHAV vs STATE OF MAHARASHTRA, 2004 (9) SCC 31 and STATE OF MP vs KASHI S. C. No.1/2010 Page 32 of 44 pages 33 RAM, 2009 (4) SCC 26, Hon'ble Supreme Court held that to justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted; although nature of injury actually caused may often give considerable assistance in coming to a finding as to intention of the accused, such intention may also be deduced from other circumstances. It was held that it is sufficient to justify a conviction under Section 307 IPC if there is presence of an intent coupled with some overt act in execution thereof. Whether there was intention to kill or knowledge that death will be caused is a question of fact. In the case of VASANT VITHU (supra) the accused fired gun from a very closed range aiming at the victim, which was held to reflect both intention as well as knowledge attributable to the accused to convict him under Section 307 IPC.
51. In the present case, as described above, all the three accused persons laid a trap and took the injured PW1 to a deserted place, where accused Noor Salam caught hold of the injured from behind, accused Hafaz Alam assaulted the injured with fists and fell him on ground, accused Noor Salam exhorted S. C. No.1/2010 Page 33 of 44 pages 34 accused Noor Alam to shoot and kill the injured whereafter accused Noor Alam took out his countrymade pistol and fired a shot that hit right side of face of the injured and when the injured tried to run away, accused Noor Alam fired another shot that hit on back of the injured and when the injured fell down screaming for help, all the accused persons fled the spot. There was not just intention to kill the injured with a dangerous firearm but also overt acts done by all the three accused persons in furtherance of their common intention to kill the injured.
52. In view of above discussion, it is held that prosecution has successfully proved their case beyond reasonable doubt. Accordingly, accused Noor Alam and accused Noor Salam are held guilty of charge framed against them and are convicted for offence under Section 307 IPC read with Section 34 IPC.
53. Bail bond of accused Noor Salam is canceled and surety is discharged. Accused Noor Salam be immediately taken in custody. Accused Noor Alam is already in custody.
ANNOUNCED IN THE OPEN
COURT ON 28th APRIL 2010 (GIRISH KATHPALIA)
ADDL. SESSIONS JUDGE
SPECIAL JUDGE, NDPS(NORTH)DELHI
S. C. No.1/2010 Page 34 of 44 pages
35
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS) DISTRICT NORTH, DELHI SC NO. 1/2010 STATE versus
1. NOOR ALAM, S/O MOHD. ANSARI, VILLAGE/PO CHITINI, HANMAN NAGAR, PS BHABHTIYAHI, DISTT. SUPAUL, BIHAR.
2. NOOR SALAM, S/O MOHD. HANIF, VILLAGE/PO CHITINI, HANMAN NAGAR, PS BHABHTIYAHI, DISTT. SUPAUL, BIHAR.
FIR No. : 326/05 Police Station : Timarpur Offence Under Section : 307/34 IPC Convicted on: 28.04.10 Arguments on sentence concluded on: 30.04.10 Order pronounced on : 30.04.10 S. C. No.1/2010 Page 35 of 44 pages 36 ORDER ON SENTENCE
1. The choice between the convict's cry 'I want to live' and prosecutor's demand 'he deserves to die' (borrowing the expression of the apex court in ALLAUDDIN MIAN vs STATE OF BIHAR, AIR 1989 SC 1456) is indeed a tough one, requiring high degree of sensitivity.
2. I have heard learned defence counsel as well as learned substitute Additional Public Prosecutor assisted by learned counsel for complainant defacto on quantum of sentence. Learned defence counsel decided not to lead any evidence and submitted that keeping the sword of sentence hanging over the convicts would cause unnecessary torture.
3. On behalf of State it was argued that the convicts shot at and severely injured Samir-Ul-Hasan in a pre planned and gruesome manner; had Samir-Ul-Hasan died immediately, the convicts would have been liable to face death sentence, but Samir-Ul-Hasan survived for about two S. C. No.1/2010 Page 36 of 44 pages 37 years after the assault in a miserable condition. It was further argued that this is a fit case to impose maximum punishment provided in the statute. It was pointed out by learned counsel for complainant defacto that at the time of assault, child of the injured Samir-Ul-Hasan was hardly six months old and was deprived of paternal care and affection due to act of the convicts.
4. On behalf of convicts, learned counsel only submitted their family circumstances and pleaded for lenient view. It was submitted that convict Noor Salam has eight children, of whom the eldest child is an 18 year old married daughter and the youngest child as on date is hardly 6 months old; Noor Salam is also looking after his 65 year old mother; Noor Salam remained in undertrial incarceration for about one month. As regards convict Noor Alam, it was argued that he has three children, the eldest child being his 8 year old daughter; Noor Alam spent 7 months in jail initially and thereafter he was declared proclaimed offender and after arrest he is in jail for past two S. C. No.1/2010 Page 37 of 44 pages 38 and a half years.
5. Both the convicts were held guilty of charge for offence under Section 307/34 IPC. Punishment prescribed for offence under Section 307 IPC is imprisonment of either description for a term which may extend to 10 years and fine; where hurt is caused to the victim of the offence, the offender is liable to imprisonment for life or to such imprisonment as described herein before.
6. In the case of STATE OF MP vs KASHI RAM, 2009 (4) SCC 26, dealing with a case for offence under Section 307 IPC, Hon'ble Supreme Court observed thus:
"13. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence S. C. No.1/2010 Page 38 of 44 pages 39 having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this court in Sevaka Perumal etc. vs State of Tamilnadu, 1991 (2) RCR (CRIMINAL) 427 : AIR 1991 SC 1463.
14. After giving due consideration to the facts and circumstances of each case for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle S. C. No.1/2010 Page 39 of 44 pages 40 MCGDautha vs State of California, 402 US 183 : 28 LD 2d 711 that no formula of fool proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any fool proof formula which may provide any basis for reasonable criteria to correctly asses various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguish.
15. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by S. C. No.1/2010 Page 40 of 44 pages 41 imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.....
17. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public S. C. No.1/2010 Page 41 of 44 pages 42 abhorrence and it should respond to the society's cry for justice against the criminal."
7. In the present case, no doubt circumstances of both the convicts are mitigating factors as there was no fault on the part of so many children of theirs, who would be now deprived of paternal care. At the same time, there was also no fault of the six months old child of the injured who subsequently lost his father to the act of convicts.
8. As described in the conviction judgment and reflected from records, the victim Samir-Ul-Hasan was shot at in a well planned manner after gaining his confidence by the convicts. The manner of assault was so gruesome that when after the first gun shot injury the victim tried to run away, he was again fired at and the bullet that hit his spine rendered him paraplegic throughout rest of his about two years of life. Even the day when the victim appeared for his testimony after a span of about five months of the occurrence, he was brought to the court on a cot. As S. C. No.1/2010 Page 42 of 44 pages 43 described in the conviction judgment, it is convicts' own case that there exists animosity between the families of the convicts and victim. These strongly aggravating circumstances cannot be ignored. In view of legal position discussed above, punishment to be awarded must be such that every member of these rival families is deterred from continuing further this horrible game of blood.
9. Keeping in mind their respective roles in the light of above discussion, convict Noor Alam is awarded sentence of rigorous imprisonment for a term of 10 years and fine of Rs.20,000/-, in default whereof he shall undergo simple imprisonment for six months and convict Noor Salam is awarded sentence of rigorous imprisonment for a term of 8 years and fine of Rs.20,000/- in default whereof he shall undergo simple imprisonment for six months, with benefit of Section 428 CrPC to both the convicts. Out of the fine so deposited by each convict, a sum of Rs.15,000/- shall be paid to the widow of injured Samir-Ul-Hasan.
S. C. No.1/2010 Page 43 of 44 pages 44
10. Fine not deposited. File be consigned to records. ANNOUNCED IN THE OPEN COURT ON 30th APRIL 2010 (GIRISH KATHPALIA) SPECIAL JUDGE, NDPS(NORTH) DELHI S. C. No.1/2010 Page 44 of 44 pages