Delhi District Court
State vs Shri Kishan on 16 March, 2024
IN THE COURT OF MS. VANDANA JAIN:
ADDL. SESSIONS JUDGE-03/SPECIAL JUDGE
(COMPANIES ACT), DWARKA COURTS, NEW DELHI.
MORE THAN SEVEN YEARS OLD
CNR No. : DLSW01-008320-2016
SC No. : 441451/2016
State Vs. : Shri Kishan & Anr.
FIR No. : 147/2016
U/s. : 307/34 IPC
P.S. : BHD Nagar
1. Date of commission of offence : 05.05.2016
2. Date of institution of the case : 10.08.2016
3. Date of committal to Sessions Court : 28.10.2016
4. Name of the complainant : Kunal Dagar
5. Name of accused, parentage &
address : (1) Shri Kishan
S/o Sh. Tara Chand
R/o RZ-18, Gali No.21,
MD Road, Gopal
Nagar, Najafgarh,
New Delhi.
(2) Vikas @ Sonu
S/o Sh. Bijender Singh
R/o RZ-102, Gali
No.2, Surakhpur Road,
Gopal Nagar,
Najafgarh, New Delhi.
(Proceedings Abated)
6. Plea of the accused : Pleaded not guilty
7. Date on which order was reserved : 06.03.2024
8. Final order : Convicted
SC No.441451/2016 Page No. 1 of 38
State vs. Shri Kishan
FIR No.147/2016, PS BHD Nagar
9. Date of final order : 16.03.2024
JUDGMENT
1. The brief facts of the prosecution case are that an information vide DD No.38A dated 05.05.2016 was received at PS BHD Nagar wherein it was recorded "Samay 8.45 pm par darj hai ki Vikas Hospital Kunal Kumar s/o Surender Kumar age 18 saal r/o Jharoda Village Ph. No.7053545540 firing se injured hokar MLC no.2116 par admit hua hai". The said DD entry was marked to SI Jagmohan. He alongwith Ct. Jasbir went to Vikas Hospital and found injured Kunal Dagar. His statement was recorded. Complainant/injured Kunal stated that on 05.05.2016 in the evening, he alongwith his friend Anuj Dagar were standing near a momos vendor in front of Rana Properties, Netaji Lane, Surakhpur Road. At around 07.00 p.m. four boys including accused 'T' (JCL) came there. Complainant had friendship with sister of accused 'T' (JCL) for the last two years. 'T' (JCL) told him that complainant had abused him on his phone, however, he could not show the number of complainant on his phone. All of them went back. After sometime they came again and two of them came and stood in front of his bike bearing registration no. DL-9S-BB-4267 and rest two, one of whom was 'T' (JCL) stood at the back of his bike. 'T' (JCL) was carrying a weapon like a pistol and he shot him on his back and all of them ran away from there.
2. On the basis of this complaint FIR u/s 307/34 IPC and 25/27 Arms Act was registered. Investigation was carried out SC No.441451/2016 Page No. 2 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar wherein, on the basis of secret information, 'T' (JCL) was apprehended and accused Vikas @ Sonu (proceedings abated) and Shri Kishan were arrested. One countrymade pistol and five live cartridges from its magazine were recovered from the possession of 'T' (JCL). At the instance of aforesaid accused persons and 'T' (JCL), police apprehended 'S' (JCL). Accused persons namely Vikas @ Sonu (proceedings abated) and Shri Kishan refused to participate in TIP proceedings. After completion of investigation, 'T' (JCL) and 'S' (JCL) were sent for trial before the JJB-II, Delhi Gate and qua accused Vikas @ Sonu (proceeding abated) and Shri Kishan (accused herein), the charge-sheet was filed in the Court.
3. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions in terms of Section 209 Cr.P.C. The charge under Section 307/34 IPC was framed against both the accused persons namely Vikas @ Sonu (proceedings abated) and Shri Kishan on 06.12.2016. It is pertinent to mention here that while framing of charge against accused Shri Kishan, his name was inadvertently mentioned as Shri Krishan.
4. Prosecution cited 20 witnesses, out of which 13 witnesses were examined. However, during trial, accused Vikas @ Sonu expired due to accident and proceedings against him were abated.
5. Statement of accused Shri Kishan was recorded u/s 294 Cr.P.C., wherein he admitted his TIP proceedings, the factum of depositing the case property (one countrymade pistol and five SC No.441451/2016 Page No. 3 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar live cartridges) in sealed and intact condition in FSL on 26.05.2016. He also admitted the factum of depositing the clothes of injured, bullet recovered from body of injured, his blood samples sealed with the seal of Vikas Hospital alongwith sample seal of Vikas Hospital to FSL, Rohini on 30.05.2016 in sealed and intact condition. Accused also admitted the FSL Report (Ballistic) and FSL Report (Biology).
6. PWs Ct. Lokender and HC Raj Kumar were also dropped by the prosecution.
7. Thereafter, PE was thereafter closed. Statement of the accused Shri Kishan was recorded under Section 313 Cr.PC wherein all incriminating evidence against him was put to them but accused denied all the allegations levelled against him and also submitted that he had been falsely implicated in the present case. He also stated that he was called at the police station to enquire about the present case and thereafter, he was arrested. He led defence evidence by examining DW-1 Sh. Om.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
9. PW-1 Dr. Prasant Prasad : He has deposed that on 05.05.2016, at about 7.40 pm, injured Kunal S/o Suresh, aged SC No.441451/2016 Page No. 4 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar about 18 years, was brought in the hospital by PCR with alleged history of fire-arm on back with bleeding near Surakhpur Road, Netaji Kalan. He has further deposed that there was single bullet injury on the back side of the patient. He also deposed that he prepared the MLC No. 317/16 Ex. PW1/1 and as per his observation, the nature of injury was grievous. He further deposed that after examination, the patient was referred to ICU.
10. PW-2 SI Rakesh Kumar : He has deposed that on 05.05.2016, he was posted as Incharge Crime Team and he alongwith his team, on receipt of information had reached at Surakhpur road, near Rana Builders, Najafgarh. He further deposed that he inspected the spot and prepared the detailed report Ex.PW2/1.
11. PW-3 Sh. Kunal Dagar : He has deposed that on 05.05.2016, he alongwith his friend namely Anuj Dagar were present in front of Rana property, near Momos wala and at around 7:00 p.m., 4 persons came, out of whom, one was Tinku and asked him regarding abusive language "gali ke bare mein puch raha tha", upon which he refused for the same and thereafter they left. He further deposed that after sometime he again came back. Two boys stood in front of his bike and two were behind him. 'T' was one of the boys who were behind me and 'T' had fired a shot on him at his back. He further deposed that he tried to run, however, the accused persons tried to chase him by saying "aaj isko zinda nahi chodna". He further deposed that he alongwith his friend had gone to his another friend SC No.441451/2016 Page No. 5 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar namely Amit Lambora and thereafter, he was removed to Vikas Hospital. He proved his complaint as Ex.PW3/1. He also identified both the accused persons (Shri Kishan and Vikas @ Sonu) in the Court as the ones put of four boys when 'T' (JCL) had fired on him and accused persons were accompanying him at the time when he was shot by 'T'. He correctly identified the accused persons on 31.05.2016 when he had gone to PS BHD Nagar alongwith his father. He was duly cross examined by ld. Counsel for accused.
12. PW-4 Sh. Anuj Dagar : He has deposed that on 05.05.2016 at about 7.00 - 7.15 am, he alongwith his friend Kunal had gone to petrol pump, Najafgarh. Thereafter, they proceeded on motorcycle to meet Kunal's friend and at Surakhpur road, where a rehriwala was selling momos, they stopped their motorcycle. He further deposed that four persons including 'T' came there and asked Kunal as to why he had abused him, on which Kunal told that he did not abuse him. 'T' also showed his mobile phone to Kunal, on which Kunal told him that his number is not in the said mobile phone and then they left the spot. He further deposed that after sometime, they again came at the spot and 2 persons stood in front of their motorcycle and 'T' and one of his friend stood behind their motorcycle and 'T' fired on Kunal, which hit on his back. They then started running from the spot and Kunal went towards his friends house. He further deposed that he was caught by those 4 persons and 'T' also tried to fire at him (PW-4) but he gave a leg blow on the pistol and the pistol could not be fired. All of them were also abusing him SC No.441451/2016 Page No. 6 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar (PW-4). Thereafter, public persons gathered there and all the assailants ran from there. Kunal was then admitted in the Vikas Hospital by his friend Amit. The motorcycle was taken by the police in the PS. He correctly identified both the accused (Shri Kishan and Vikas @ Sonu) and deposed that they had come alongwith 'T'. He was duly cross examined by ld. Counsel for accused.
13. PW-5 Sh. Amit Lambora : He has deposed that on 05.05.2016, at about 7:30 p.m., he was present at his home and his friend Kunal came to his house and told him that he had suffered injury. He further deposed that he checked him and found that he was bleeding from the backside. He further deposed that he took Kunal to the hospital and while on the way Kunal told him that he had suffered a gun shot injury. He also deposed that he alongwith Kunal reached at Vikas hospital where he was treated by the doctors.
14. Since PW-5 Sh. Amit Lambora did not disclose the facts truly, he was cross examined by learned Addl. PP for the State. During his cross examination by learned Addl. PP for the State, he has denied the suggestion that Kunal came with his friend Anuj at his home and from there they took him to Vikas hospital. He was cross examined by ld. Counsel for accused.
15. PW-6 HC Praveen Kumar : He has deposed that on 09.05.2016, at about 6:00 am, he alongwith HC Randhir, Ct. Lokender and IO/SI Rajesh had left the PS in private Honda City SC No.441451/2016 Page No. 7 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar car for apprehension of the accused persons and reached at Bus Terminal, Najafgarh. He further deposed that one secret informer met them and told IO/ SI Rajesh Kumar that accused persons wanted in this case are present with 2-3 friends at chowk near Akhada at Surakhpur road and they might be having weapons with them and if raided could be caught red handed. IO/SI Rajesh Kumar requested few passersby to join the investigation but all of them went away without disclosing their names and addresses and then they went towards Akhada at Surakhpur road and at about 200-250 yds away from it, the secret informer signalled towards chowk near Akhada and left the Honda City car. He further deposed that they reached near Akhada and when the car stopped, three persons upon seeing them started running away but were apprehended by them. The name of those persons were found as 'T', Vikas @ Sonu and Shri Kishan. He further deposed that on personal search of accused 'T' (JCL), one countrymade pistol was found from his left pocket and 5 live rounds were found in its magazine. The IO prepared its sketch and put the same in plastic container and sealed it with the seal of 'RK' and seized it. FSL form was prepared and seal was handed over to Ct. Lokender. He proved the sketch of said countrymade pistol as Mark 6/A and its seizure memo as Mark 6/B. He further deposed that the other accused persons were also personally searched but no incriminating article was found with them and all of them were arrested by the IO. He proved the arrest memo and personal search memo of accused Shri Kishan and Vikas @ Sonu (proceedings abated). He further deposed that the accused persons led them to the house of 'S' (JCL) who was apprehended SC No.441451/2016 Page No. 8 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar by the IO. He was duly cross examined by ld. Counsel for accused.
16. PW-7 HC Suraj Bhan : He deposed that on 05.05.2016, he alongwith the crime team officials reached at the spot i.e. Netaji Lane, Surakh Pur Road, Najafgarh, New Delhi and clicked photographs of the spot i.e. Ex.PW7/1 (colly) at the request of IO and after developing the photographs, he handed over the same to the IO. He proved negatives of the photographs as Ex.PW7/2. He was duly cross examined by ld. Counsel for accused.
17. PW-8 Const. Jasbir Singh : He has deposed that on 05.05.2016, on receipt of DD no.38A at about 8:45 pm, he alongwith SI Jagmohan reached at Vikas hospital, Najafgarh where Kunal was found admitted and IO recorded his statement. He further deposed that IO prepared the rukka and handed over to him and he then went to the PS BHD Nagar and got the FIR of the present case registered. He further deposed that the investigation was then marked to SI Rajesh and he handed over the original rukka and copy of FIR to SI Rakesh. He also deposed that then they came to Vikas hospital and SI Jagmohan met them there. He further deposed that IO recorded the statement of Anuj Dagar and Amit and then with Anuj Dagar, they reached at the spot i.e. Netaji Lane, Surakh Pur Road, Najafgarh and there, at the instance of Anuj Dagar, site-plan was prepared. He further deposed that the motorcycle bearing no. DL-9SBB-4267, found at the spot, was seized by IO vide memo Ex.PW8/1 and then he brought the motorcycle to the PS. He was duly cross examined SC No.441451/2016 Page No. 9 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar by ld. Counsel for accused persons.
18. PW-9 W/ASI Kaushalya : She was the duty officer on 05.05.2016. She deposed that on that day, at about 08.45 PM, she received a PCR Call informing that one Kunal Kumar S/o Sh. Surender Kumar, aged 18 years, R/o Jharoda was admitted in Vikas Hospital with gun shot injury vide MLC No. 2/2016. She recorded the said call vide DD No.38A Ex.PW9/A. She further proved the FIR and her endorsement on the rukka. She deposed that she handed over the copy of FIR to SI Rajesh along with original rukka for further investigation. She also proved the certificate u/s 65-B of I.E. Act as Ex.PW9/D.
19. PW-10 Sh. Suresh Kumar : He is the father of injured as well as registered owner of motorcycle bearing no. DL-9S-BB- 4267 Hero Motorcop Model Splendor, who got it released on superdari. He was cross examined by ld. Counsel for accused persons.
20. PW-11 Insp. Jagmohan : He deposed that on 05.05.2016, he was posted at PS BHD Nagar as Sub-Inspector and was on night emergency duty. At about 8:50-9:00 pm, he received information vide DD No. 38A regarding admission of one injured at Vikas Hospital, Najafgarh. Thereafter, he alongwith Const. Jasvir reached the hospital where injured Kunal was found admitted vide MLC No. 317/2016. He recorded statement Ex.PW3/1 of the injured Kunal and prepared the rukka Ex.PW11/A. Thereafter, Const. Jasvir was sent to the PS along SC No.441451/2016 Page No. 10 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar with rukka for registration of the FIR and after some time, Const. Jasvir came back to the hospital and handed over to him original rukka and copy of FIR. He further deposed that SI Rajesh also reached the hospital and further investigation of the present case was marked to him. Thereafter, he left the hospital. He further deposed that on 09.05.2016, he produced accused Shri Kishan and Vikas @ Sonu (proceedings abated) before concerned Magistrate and also moved application for conducting their TIP, however, the accused persons refused to join TIP proceedings. He correctly identified the accused Shri Kishan during his deposition. He was duly cross examined by ld. counsel for accused.
21. PW-12 SI Rajesh Kumar : He has deposed that on 05.05.2016, the investigation of the present case was marked to him by the SHO. The copy of FIR and the original tehrir were handed over to him. He further deposed that he along with Const. Jasvir went to Vikas hospital and found one injured Kunal admitted in the hospital. SI Jagmohan was also present at the hospital. He further deposed that he along with Const. Jasvir went to the spot i.e. Netaji Lane, Surakhpur Road, Delhi. Crime team was already present at the spot. The spot was inspected by the Crime team and report was handed over to him. The injured told him that he was taken to the hospital by Amit. The statement of injured was recorded. Friend of complainant i.e. Anuj Dagar also reached the spot and his statement was also recorded and site plan was prepared at his instance. He further deposed he seized the motorcycle found at the spot. He again went to the hospital SC No.441451/2016 Page No. 11 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar where the clothes of the injured, one bullet, blood sample of complainant Kunal and two sample seals were handed over to him by the concerned doctor which were seized by him. Case property was deposited in the malkhana. With respect to arrest of accused persons and recovery from 'T' (JCL), he deposed on the same lines as that of PW6. He further deposed that accused Shri Kishan and Vikas @ Sonu (proeedings abated) both refused to join TIP proceedings. He further deposed that the complainant came to the PS and correctly identified both the accused persons. He recorded statement of one Panna Lal, who happened to be a witness of the incident. The exhibits were sent to the FSL. He further deposed that he recorded statement of the witnesses and prepared the charge-sheet. He correctly identified accused Shri Kishan in the court. The identity of the case property was not disputed by accused. He was duly cross examined by ld. Counsel for accused.
22. PW-13 Sh. Jai Prakash Bhardwaj : He is Assistant Ahlmad at JJB-II. He has brought the summoned record i.e. complete judicial file of FIR No. 147/2016 and deposed that the said trial has been conducted in the JJB and has been decided. He further deposed that the seizure memos of the pistol and five live cartridges and sketch of the pistol are placed in the said judicial file. He proved the said seizure memo as Ex.PW13/A (OSR) and Ex.PW13/B (OSR).
23. I have heard Sh. Vijender Singh Kharb, ld. Addl. PP for the State and Sh. Veerpal Chaudhary, ld. counsel for the accused.
SC No.441451/2016 Page No. 12 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
24. Sh. Vijender Singh Kharb, ld. Addl. PP for the State had argued that PW-3 Kunal Dagar is the injured and PW-4 is an eye witness who happens to be the friend of PW-3 and was present alongwith the injured at the time of incident. He had argued that testimony of both these witnesses is consistent and reliable. He had further argued that two of the accused persons were JCL and their trial has been conducted before the JJB. Accused Shri Kishan alongwith other co-accused Vikas @ Sonu were tried jointly, however, co-accused Vikas @ Sonu expired during the trial and proceedings against Vikas @ Sonu were abated. He has further argued that the testimony of PW-3 and PW-4 clearly shows that accused 'T' (JCL) alongwith co-accused persons including accused herein, in furtherance of their common intention, had inflicted gun shot injury upon the injured PW-3 which stands proved beyond reasonable doubt. He had further argued that medical and forensic evidence also points out towards the commission of offence, therefore, accused be convicted for the offence under Section 307/34 IPC
25. On the other hand, Sh. Veerpal Chaudhary, learned counsel for the accused had argued that there are clear discrepancies in the testimony of both the witnesses i.e. PW-3 and PW-4. He had further argued that the momos vendor was made a witness, however, he was dropped from the list of witnesses for no reason. Ld. Counsel has further argued that in the testimony of PW-3, it is stated that he went to his friend's house which is improbable as injured ought to have either called 100 number or would have SC No.441451/2016 Page No. 13 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar straightaway gone to the hospital for treatment. He had further argued that accused has been illegally arrested and was picked from his house and no public person was joined as witness while arresting him. He had argued that prosecution has not been able to prove any enmity between the injured and the accused Shri Kishan prior to the date of incident. He had further argued that the offence under Section 307/34 IPC is not made out as the prosecution has failed to prove the common intention. Ld. Counsel had argued that the prosecution has not been able to prove its case beyond reasonable doubt against the accused Shri Kishan and therefore, he be acquitted.
26. I have considered the rival contentions and have perused the record carefully.
27. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465.
28. The substantive offence for which accused has been charged with the aid of Section 34 IPC (which is not a substantive offence) is under Section 307 IPC. The trial herein is only against accused Shri Kishan. He has been charged with commission of offence with the aid of Section 34 IPC SC No.441451/2016 Page No. 14 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
29. Therefore, in order to fasten vicarious liability, it should be proved that there was prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former.
30. The case of the prosecution is based on an eye witness account. The injured himself alongwith his friend who was present with him at the time of incident have deposed against the accused in the present case.
31. In Shahaja @ Shahajan Ismail Mohd. Shaikh vs. The State Of Maharashtra 2022 Live Law (SC) 596, the Hon'ble Supreme Court enumerated the principles evolved for appreciation of ocular evidence in criminal case and observed as under:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives SC No.441451/2016 Page No. 15 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss SC No.441451/2016 Page No. 16 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
32. Applying the settled principles of law to the facts of SC No.441451/2016 Page No. 17 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar present case, let's proceed to appreciate the deposition of witnesses. PW-3 is the injured. PW-4 is his friend. Since PW-4 is the friend of PW-3, his testimony comes under the category of interested witness. The evidence of interested witness cannot be discarded for the reason of it being coming from a known person. The only requirement is that Court should consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility, then the Court can disbelieve the same. [Mallanna vs. State of Karnataka reported in (2007) 8 SCC 523].
33. PW-3 in his examination-in-chief has stated as under:
"On 05.05.2016, I alongwith my friend namely Anuj Dagar wre present in front of Rana Property, near Momos wala. It was around 7:00 pm, 4 persons came, out of whom, one was 'T' as his sister was my friend. Thereafter, he asked me regarding abusive language 'gali ke bare mein puch raha that', upon which I refused for the same and thereafter they left."
34. PW-4 also corroborated the aforesaid statement of PW-3 by deposing as under:
"The date of incident is 05.05.2016. On that day, at about 7.00-7.15 am, I alongwith my friend Kunal had gone to petrol pump, Najafgarh. Thereafter, we proceeded on motorcycle to meet Kunal's friend and at Surakhpur Road, where a rehriwala was selling momos, we stopped our motorcycle. Thereafter, 4 persons came there, one of them was 'T' whom I knew prior to the incident. He asked Kunal as to why he had abused him, on which Kunal told that he did not abuse him. Thereafter, 'T' also showed his mobile number to Kunal, on which Kunal told him that his number is not in the said mobile phone. Thereafter, they left the spot."
35. No cross examination of PW-3 or that of PW-4 with respect to the date or time of incident was conducted. No SC No.441451/2016 Page No. 18 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar questions or suggestions were put to these witnesses for their testimony regarding four persons coming to the spot out of whom one was 'T' (JCL).
36. It is a settled law that in case the correctness of a statement is to be disputed, same must be put to the witness so as to afford him opportunity to explain his statement. Reliance in support thereof is placed on the judgment of the House of Lords in Browne Vs. Dunne 2 (1893) 6 R 67 (HL) :
"I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchanged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story tells he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
37. The principle laid down in Browne vs. Dunne (Supra) was subsequently approved by Hon'ble Supreme Court of India in Rajendar Prasad Vs. Darshana Devi (2001) 7 SCC Page 69, wherein it was held :
"There is an age old rule that if you dispute the correctness of the statement of a witness you must give him an opportunity to explain his statement by drawing his attention to that part of it which is objective to as untrue, otherwise you cannot impeach his SC No.441451/2016 Page No. 19 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar credit................."
38. Since no suggestion was put to these witnesses in respect of this testimony, therefore, the correctness of this part of their testimony stands proved. Thus, the prosecution has proved beyond reasonable doubt that four persons including 'T' (JCL) had come to PW-3 Kunal Dagar when he was present alongwith his friend PW-4 near Momos Wala at around 7.00 pm on 05.05.2016.
39. In the present case, since it is an eye witness account, the motive is not so important, however, prosecution has attempted to prove motive in this case. PW-3 had deposed that sister of 'T' (JCL) was his friend. PW-3 had further deposed that 'T' (JCL) had come to the injured alongwith three other persons in order to ask him regarding the abusive language. During his cross examination, PW-3 was put a suggestion that he (PW-3) used to tease sister of 'T' (JCL) and was also suggested that mother of 'T' (JCL) had also made a complaint to parents of PW-3 in that regard. He denied both the suggestions but the combined reading of above deposition makes it clear that the accused persons had come for a reason to the spot in order to confront injured PW-3. His ['T'(JCL)] act of not coming alone and bringing three other persons alongwith him indicates that he had not come to have a polite conversation with PW-3. Hence, it stands proved that 'T'(JCL) alongwith his associates had a reason/motive to come to the spot and to commit the crime.
SC No.441451/2016 Page No. 20 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
40. PW-3 had further deposed that all four of them left and after some time, they again came back. PW-3 was cross examined by ld. Counsel for accused on this aspect and during his cross examination, he stated "On the day of incident, accused 'T' first came at the spot at about 7.30 pm and he again came after a gap of about 5 minutes. Vol. 'T' had come with his associates.".
41. PW-4 corroborated the testimony of PW-3 in this regard by deposing that they left the spot and after some time they again came back at the spot.
42. PW-4 was also cross examined by ld. Counsel for accused wherein he stated "The accused persons visited the spot twice with a gap of 5-7 minutes.".
43. No suggestion was put to either of these witnesses (PW-3 or PW-4) regarding accused persons leaving the spot and thereafter, returning to the spot after a gap of 5-7 minutes. The testimony of both these witnesses reproduced as above clearly proves leaving no room for doubt that after talking to PW-3 Kunal Dagar, 'T' (JCL) alongwith his other three associates, left the spot and within 5-7 minutes, he again came back to the spot with all his three associates.
44. PW-3 in his testimony has further deposed:
"Two boys stood in front of my bike and two were behind me. 'T' was one of the boys who were behind me and 'T' had fired a shot on me at my back."SC No.441451/2016 Page No. 21 of 38
State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
45. PW-3 further deposed:
"I identify both the accused persons present in Court today out of those four boys when 'T' had fired on me and the accused persons (Accused Shri Kishan and Vikas @ Sonu) were accompanying him at the time when I was shot by 'T'."
46. During his cross examination, PW-3 stated:
"During incident in question, I was not caught hold by accused Vikas @ Sonu and Shri Kishan. The accused 'T' had caused gun shot injuries upon me from the distance of about 3-4 meters, when I was sitting on bike and my friend Anuj was standing beside me near a momos shop at the spot.".
47. The said testimony of PW-3 was endorsed/corroborated by PW-4 which is mentioned as under:
"After sometime, they again came at the spot and 2 persons stood in front of our motorcycle and 'T' and one of his friend stood behind our motorcycle. Thereafter, 'T' fired on Kunal, which hit on his back.".
48. PW-4 further deposed:
["At this stage, the witness points out towards two accused persons, who are present in the Court today, and mentioned that both had come alongwith 'T'. (Accused persons Vikas @ Sonu and Shri Kishan are correctly identified)].
49. During his cross examination, PW-4 stated:
"When 'T' fired towards Kunal, I was standing with Kunal and I saw 'T' firing towards Kunal.".
50. On reading the aforesaid testimony of these witnesses, it is found that both the witnesses have constantly maintained a stand that 'T' (JCL) fired towards PW-3. Only 'T' (JCL) had fired towards the injured PW-3 whereas two other accused persons stood in front of his bike and the third one stood behind him alongwith 'T' (JCL). This part of the testimony of both these SC No.441451/2016 Page No. 22 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar witnesses could not be shaken during cross examination. Nothing could be elicited by cross examining these witnesses, making their testimony in this regard free from any fallacy. It is also noticed from the abovesaid testimony that no suggestion was put either to PW-3 or to PW-4 that accused Shri Kishan was not standing either in front of the bike of the injured or that he was not the one who stood behind the injured alongwith 'T' (JCL).
51. The accused Shri Kishan was correctly identified to be the one of the accused who accompanied 'T' (JCL) on the date of incident by both the witnesses. He was present when 'T' (JCL) fired upon PW-3. A suggestion was put to PW-3 to the effect that accused Shri Kishan alongwith co-accused Vikas @ Sonu (proceedings abated) were not present at the spot on the said date and time of the incident. The said suggestion was denied by the PW-3. It is worthwhile to note here that no such suggestion was given to PW-4 who was also present alongwith PW-3 at the spot at the time of incident. On careful scrutiny of testimony of PW-3 and PW-4, as discussed till now, it is found that the statements of PW-3 and PW-4 are reliable, trustworthy and deserves credence. They do not seem to be based on any falsehood.
52. Hence, prosecution has successfully proved beyond any shadow of doubt that 'T' (JCL) had fired upon injured PW-3 from behind on his (PW-3) back and accused Shri Kishan was one of the three persons alongwith 'T' (JCL) who had come to the spot on the date and time of incident and had gone back at the first instance and then had again accompanied 'T' (JCL) after a SC No.441451/2016 Page No. 23 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar gap of 5-7 minutes, when 'T" (JCL) fired upon the injured i.e. PW-3.
53. There is a slight variation which is noticed in the testimony of PW-3. At the very outset, it is noted that dehors this variation, the testimony of PW-3 is found to be completely reliable and worth credence. What is to be seen here is whether the version presented in Court by PW-3 was substantially similar to what was said during investigation. On this point, it is noticed that PW-3 in his statement Ex.PW3/1 given before IO had stated that after inflicting gun shot injury, all accused persons ran away from the spot but in his (PW-3) testimony, he stated as under:
"Then I tried to run, however, the accused persons tried to chase me and they were also saying 'aaj isko zinda nahi chodna' and the said words were used by the accused persons accompanying 'T'."
54. This part of testimony of PW-3 does not find mention in his statement Ex.PW3/1 recorded by IO. It is to be assessed now whether this exaggeration/variance/variation fundamentally alters the nature of the case. First of all, there is no cross examination of PW-3 on this part of testimony. Further, it is noticed that this part of his testimony is corroborated by PW-4 who had deposed:
"Thereafter, we started running from the spot. Thereafter, Kunal went towards his friends house and I was caught by those 4 persons and thereafter, 'T' also tried to fire at me, but I gave him a leg blow on the pistol, however, the pistol could not be fired. All of them were also abusing me."
55. This part of testimony of PW-4 is exactly in tune with his earlier statement recorded under Section 161 CrPC by the IO during investigation. The reading of the testimony of PW-3 and SC No.441451/2016 Page No. 24 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar PW-4 together would show that they are consistent in deposing that even after firing by 'T' (JCL) upon injured, they did not run away. They chased PW-3 and PW-4. PW-3 and PW-4 have simply described the manner in which they escaped and saved themselves.
56. This part of the testimony of PW-3 does not have any bearing on the earlier testimony of PW-3 wherein the description and manner of commission of offence by accused persons has been given, which is already found to be credible and trustworthy. This is a variation which is not leading to any serious consequence.
57. It has to be seen under what circumstances the witness had given his statement to the police. In this case, the statement of PW-3 was recorded just few hours after he received the gun shot injury. One cannot imagine the pain and agony he would be undergoing at the time his statement was being recorded. In this context, it is important to note that every witness behaves in a different manner in a different situation, one may be able to remember and express all what he wants to say, though the other may only remember the major incident and might not be able to give each and every detail. Just because he did not narrate these facts in his statement recorded by the IO, it does not shroud his testimony with suspicion.
58. It is settled principle of law that every variation or improvement cannot be treated as an attempt to falsely implicate SC No.441451/2016 Page No. 25 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar the accused by the witness. The approach of the Court has to be reasonable and practicable. [Reference can be made to Ashok Kumar vs. State of Haryana (2010) 12 SCC 350].
59. In State of U.P. vs. Anil Singh AIR 1988 SC 1998, the Hon'ble Supreme Court has observed as under:
"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other Both are public duties which the Judge has to perform."
60. Therefore, this variation does not impact the testimony of PW-3 which is otherwise found to be true, reliable and free from any falsehood in the preceding paras in respect of the commission of offence and the manner in which it was committed.
61. This fact of firing upon injured is further endorsed by deposition of PW-1 Dr. Prasant Prasad who had deposed that injured Kunal had come with history of firearm on back with bleeding and there was single bullet injury on the back side of patient. He proved the MLC of PW-3 and also proved that opinion on MLC was given as 'grievous'. He was not cross examined by ld. counsel for accused.
SC No.441451/2016 Page No. 26 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
62. The bullet recovered from the body of PW-3, his clothes stained with blood, blood sample of injured and sample seal were handed over to IO which were duly seized by him vide seizure memo Ex.PW12/B. The said exhibits were sent to FSL. Ld. Counsel for accused has not disputed the factum of sending these exhibits to the FSL in intact condition and the statement of accused under Section 294 CrPC to that effect was recorded. Prosecution has further proved the arrest of accused persons and recovery of pistol and five live cartridges from the possession of 'T' (JCL) by examining PW-6 HC Parveen and PW-12 IO/SI Rajesh Kumar. PW-6 HC Parveen Kumar has deposed:
"Thereafter, we reached near Akhada and when the car stopped, 3 persons upon seeing us started running away who were apprehended by us. The name of those persons were found 'T', Vikas @ Sonu and Sri Kishan. On personal search of accused 'T'(JCL) one countrymade pistol was found from his left pocket. 5 live rounds were found in its magazine. The IO prepared its sketch and sealed the put the same in plastic container and sealed it with the seal of 'RK' and seized it. FSL form was prepared and seal was handed over to Ct. Lokender. The sketch of said countrymade pistol is Mark 6/A and it was seized vide memo Mark 6/B, bearing my signature at point-A."
63. A suggestion was put to the witness that the accused persons were lifted from their houses and the personal search memo, sketch and seizure memos were prepared in the PS by the IO, however, the said suggestion was denied by the witness. Nothing came in cross examination which shook the credibility of PW HC Parveen Kumar in this regard. The testimony of PW-12 IO/SI Rajesh Kumar is also consistent and in tune with SC No.441451/2016 Page No. 27 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar testimony of PW-6 in respect of arrest of accused persons and recovery of weapon from 'T' (JCL). Hence, prosecution has successfully proved that there is no reason to disbelieve their testimony that 'T' (JCL), accused Shri Kishan and accused Vikas @ Sonu (proceedings abated) were apprehended together and on personal search of 'T' (JCL), one countrymade pistol alongwith five live rounds in its magazine were recovered from the left pocket of 'T' (JCL). There is no dispute to the factum of sending countrymade pistol and five live cartridges to the FSL in duly sealed and intact condition.
64. FSL results were filed by the IO in the trial of 'T' (JCL) before the JJB. The said file has been tagged during the course of trial alongwith the present file. The FSL reports are admissible under Section 293 CrPC. Since the accused herein did not wish to cross examine the FSL Experts, therefore, he admitted the FSL reports under Section 294 CrPC and they are exhibited as Ex.A4 and A7 respectively.
65. Ex.A4 pertains to Ballistic Division wherein the countrymade pistol recovered from 'T'(JCL) alongwith five live cartridges were compared with bullet which was recovered from the body of the injured PW-3. The description of parcel and the result of the examination is as under:
"1. DESCRIPTION OF PARCEL (S):
Sealed cloth parcel: 02(Two) Sealed plastic container: 01(One) Total: 03(Three) Three sealed parcels; seals were intact and tallied with the SC No.441451/2016 Page No. 28 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar specimen seals as per forwarding letter (FSL FORM).
2. DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S)/EXHIBIT (S):
Parcel no. No. & Seal Description of
Impression Exhibit(s)
contained in
parcel(s)
1 02 Vikas Hospital One bullet marked
NO1205 Pvt.Ltd. exhibit 'EB1'
2 03 RK One improvised
pistol 7.65mm bore
marked exhibit
'F1'.
3 03 RK Five 7.65mm
cartridges marked
exhibits 'A1' to
'A5'.
3. RESULTS OF EXAMINATION/OPINION:
(1) The Improvised pistol 7.65mm bore marked exhibit 'F1' is designed to fire a standard 7.65mm cartridge. It is in working order in its present condition. Test fire condücted successfully.
(2) The 7.65mm cartridges marked exhibits 'A1' to 'AS' are live ones and can be fired through 7.65mm bore firearm.
(3) The bullet marked exhibit 'EB1' corresponds to the bullet of 7.65mm cartridge.
(4) The 7.65mm cartridges marked exhibits 'A1' & 'A2' were test fired through the improvised pistol 7.65mm bore marked exhibit 'F1' above, the test fired cartridge cases were marked as 'TC1', 'TC2' and the two recovered test fired bullets were marked as 781' & 'TB2'.
(5) The individual characteristics of striations present on evidence bullet marked exhibit 'EB1' and on test fired bullets marked as 'TB1' & 'TB2' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence, the evidence bullet marked exhibit 'EB1' has been discharged through the improvised pistol 7.65mm bore marked exhibit 'F1' above.
SC No.441451/2016 Page No. 29 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar (6) The exhibits 'F1', / 'A1' to 'A5', 'EB1' are firearm/ ammunition as defined in the Arms Act, 1959."
66. Similarly the clothes of the injured having blood stains were also sent to FSL alongwith blood sample of the injured. The description of parcel sent and the result, as stated in FSL report is as under:
"DESCRIPTION OF PARCELS & CONDITION OF SEALS SEAL INTACT AS PER F.A.'s LETTER Sealed cloth parcel : 02 TOTAL : 02 (two) DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "
VIKAS HOSPITAL PVT. LTD.NO.1205" containing exhibits 'la', '1b', 'lc' & 'Id' described to be of injured.
Exhibit 'la' : One cut/torn shirt having a few brown stains. Exhibit '1b' One cut torn banian having brown stains. Exhibit 'Ic' : One jeans pants having a few small brown stains.
Exhibit 'Id' : One underwear.
Parcel '2' : One sealed cloth parcel sealed with the seal of "VIKAS HOSPITAL PVT. LTD 1205" containing exhibit '2'. Exhibit '2' : Dark brown liquid kept in two tubes described as blood sample of injured RESULTS OF ANALYSIS
1. Blood was detected on exhibits 'la', 'lb', 'le','ld' & '2'.
2. Report of serological analysis in original is attached here with."
67. The said report proved the presence of blood of injured PW-3 on his clothes, which he was wearing at the time he was shot.
SC No.441451/2016 Page No. 30 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
68. It is proved beyond any doubt that pistol recovered from the possession of 'T' (JCL) was used by him for committing the offence and inflicting gun shot injury upon PW-3. Therefore, the testimony of PW-3 and PW-4 coupled with the medical and forensic evidence clearly proves beyond reasonable doubt that 'T' (JCL) had fired a gun shot injury on the back of PW-3 on 05.05.2016. The injury inflicted upon PW-3 is on a vital organ and has been opined to be 'grievous'. At this junction, it is imperative to discuss provisions of law under Section 307 IPC.
69. Section 307 IPC is reproduced hereinunder:-
"307. Attempt to murder.--
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by SC No.441451/2016 Page No. 31 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping;
A has not yet committed the offence defined in this section. A places the food on Z's table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section."
70. In the case Vasant Vithu Jadhav v. State of Maharashtra (2004) 9 SCC 31, the Apex Court observed as under:
"9. .................
To justify a conviction under this section (S.307), it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
71. Applying the principles laid down above, it is noted that ingredients of Section 307 IPC are duly proved in the present case. The act of firing upon PW-3 by 'T' (JCL) from behind on his back which is a vital organ clearly proves his intention to commit the offence.
SC No.441451/2016 Page No. 32 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
72. It is worthwhile to note here that PIR against 'T' (JCL) was filed before JJB. 'T' (JCL) was found to be involved in the offence punishable under Section 307/34 IPC and Section 25/27 Arms Act.
73. Now coming to the role of the accused Shri Kishan. PW-3 and PW-4 had clearly stated that accused Shri Kishan had not inflicted any injury upon PW-3. Accused Shri Kishan has been charged for the offence under Section 307 IPC with the aid of Section 34 IPC.
74. Section 34 IPC is not a substantive offence. Section 34 IPC is reproduced hereinunder for the sake of convenience:-
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
75. In Girija Shankar v. State of UP (2004)3 SCC 793, the Apex Court observed as under:
"9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to SC No.441451/2016 Page No. 33 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab33 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
76. Hence, the deposition of witnesses have to be read carefully in order to see whether there was any prior meeting of minds for their common intention to commit offence or it developed on the spur of moment before the firing upon injured by 'T' (JCL). There cannot be any direct or straight evidence of the offence under Section 34 IPC. Direct evidence on common intention is seldom available. The existence of the common intention depends upon the facts and circumstances of each case. The intention of principal offender ['T' (JCL)] and his companions (including accused Shri Kishan) to deal with injured must be apparent from the conduct of the persons (co-associates including accused Shri Kishan) accompanying the principal culprit. The careful perusal of the testimony of both the witnesses would show that accused Shri Kishan was one of the boys who had accompanied 'T' (JCL) when they came to confront PW-3 and left the spot. It has further come in the testimony of PW-3 as well as PW-4 that all the four boys again came to the spot within a gap of 5-7 minutes. The act of 'T' (JCL) coming alongwith his associates including the accused SC No.441451/2016 Page No. 34 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar herein and confronting PW-3 regarding the abusive language, then all of them leaving the spot together, their further action of again coming back to the spot with 'T' (JCL), two boys standing in front of the bike of PW-3 and two standing behind him out of which one was 'T' (JCL) who immediately fired upon PW-3 clearly reveals the intention of the accused persons including the accused Shri Kishan. Their aforesaid actions indicate that they knew as to for what purpose they were again going to the spot. Their common intention is further reflected from the fact that without discussing anything or having any deliberations on the spot or without being instructed by anyone of them, two of them immediately stood in front of the bike/injured who was sitting on the bike and two stood behind the injured, one of whom was 'T' (JCL) who fired upon PW-3. It demonstrates that there was pre- arranged plan to stand in the said manner in order to facilitate 'T' (JCL) to fire upon injured without leaving any scope for injured (PW-3) to sense the danger or to save himself. The gun shot injury having been inflicted upon the back of PW-3 which is the vital part of the body itself indicates that the intention was to commit murder. Had the intention been only to harm PW-3 or to threaten him, 'T' (JCL) would have inflicted gun shot injury on some non-vital organ but that is not so in the present case.
77. Prosecution has successfully proved beyond reasonable doubt that accused Shri Kishan alongwith other co-accused persons (two of whom were JCL) had common intention to inflict gun shot injury upon PW-3.
SC No.441451/2016 Page No. 35 of 38State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar
78. Accused Shri Kishan in his defence has set up a plea of alibi. He has examined one Shri Om as DW-1.
79. Before appreciating the testimony of DW-1, it is necessary to discuss the law laid down in respect of this plea (alibi).
80. In the case Munshi Prasad v. State of Bihar (2002) 1 SCC 351 the Hon'ble Supreme Court has observed as under:
"2. ......... The word ― alibi, a Latin expression means and implies in common acceptation ― elsewhere: it is a defence based on the physical impossibility of participation in a crime by an accused in placing the latter in a location other than the scene of crime at the relevant time, shortly put, the presence of the accused elsewhere when an offence was committed."
81. Further in the case Dudh Nath Pandey v. State of U.P 1981 (2) SCC 166 the Hon'ble Supreme Court has observed as under:
"The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore 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...... Distance thus would be a material factor in the matter of acceptability of the plea of alibi."
82. In the light of abovesaid principles, the testimony of DW-1 is appreciated hereinunder.
83. DW-1 has deposed that on the day of incident, accused Shri Kishan was with him as he was working as a labourer @ Rs.8000/- pm and his duty hours were from 8.00 am to 6.00 pm. SC No.441451/2016 Page No. 36 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar DW-1 was thoroughly cross examined by Sh. Vijender Singh Kharb, ld. Addl. PP for the State. During his cross examination, DW-1 stated that he had not maintained any register with regard to salary paid to his labourers. He further stated that on 05.05.2016, he was working at a site in Najafgarh at Gali no.21, Gopal Nagar. The site belonged to uncle (Chacha) of accused Shri Kishan. The testimony of DW-1 is not substantiated by any document which could show that accused was on the rolls of DW-1 or that he was working with him. The defence witness was working at the site of uncle of accused which explains as to how the witness has come in the witness box to depose in favour of accused. Further, the site was at Najafgarh, the incident also occurred at Surakh Pur Road, Najafgarh. DW-1 in his cross examination stated that on 05.05.2016 (day of incident) accused came to him at 8.00 am and was with him till 6.00 pm. He admitted that he did not know about the whereabouts of accused after 6.00 pm on 05.05.2016. Even if it is presumed that accused was with DW-1 on 05.05.2016 from 8.00 am to 6.00 pm, there is no dispute that accused left the company of DW-1 after 6.00 pm. From the deposition of PW-3 and PW-4, it is clear that 'T' (JCL) alongwith his associates including accused herein had gone to PW-3 at Momos Wala at around 7.00 pm on 05.05.2016. The site where accused Shri Kishan was allegedly working till 6.00 pm and the spot where offence was committed, both are in Najafgarh. Therefore, even if the testimony of DW-1 is considered as gospel truth, then also accused cannot be said to be at such an impossible distance that he could not be present at the spot at the time of incident. The testimony of DW-1 does not SC No.441451/2016 Page No. 37 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar indicate at all that accused Shri Kishan was with him at the time of incident on 05.05.2016. Hence, his testimony is not reliable and plea of alibi set up by accused does not stand proved.
84. After analysing the entire prosecution evidence and the defence evidence, this Court is of the considered view that accused Shri Kishan is guilty of the offence under Section 307/34 IPC.
85. Hence, accused Shri Kishan is convicted for the charges for the offence under Section 307/34 IPC in FIR No.147/2016 PS BHD Nagar.
86. A copy of this judgment be given dasti to the convict Shri Kishan free of cost.
Digitally signed by
Announced in open court VANDANA VANDANA JAIN
on 16.03.2024 JAIN Date: 2024.03.16
14:31:06 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/16.03.2024 Note: This judgment contains thirty-eight (38) pages and having my signature on each page.
(Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/16.03.2024 SC No.441451/2016 Page No. 38 of 38 State vs. Shri Kishan FIR No.147/2016, PS BHD Nagar