Kamal Jeet Singh @ Rana and Another vs The State (NCT Of Delhi)

S.P. Garg, J.—Anil Pedro @ Sonu (A-1) and Kamal Jeet Singh @ Rana (A-2) challenge the legality and correctness of a judgment dated 31.08.2000 of learned Addl. Sessions Judge in Sessions Case No. 128/97 arising out of FIR No. 93/96 PS Sarojini Nagar by which they were held guilty for committing offences punishable under Sections 307 /324 /34 IPC and by an order dated 01.09.2000, were awarded RI for two years with fine Rs. 1,000/- each under Sections 307 /34 IPC and RI for six months with fine Rs. 500/- each u/s 324 IPC. Both the sentences were to operate concurrently. Allegations against the appellants were that on 05.03.1996 at about 12.30 P.M. near House No. 6, Krishna Nagar Park, they in furtherance of common intention with Shashi Shekhar (since acquitted) inflicted injuries to Surender and Virender. Daily Diary (DD) No. 12A (Ex. PW8/A) was recorded at 13.15 P.M. at Police Station, Sarojini Nagar when duty Const. Mahesh informed about admission of injured Virender Singh at Safdarjung Hospital. The investigation was assigned to SI Umesh Sharma who went to the hospital and collected Virender Singh''s MLC. After recording his statement (Ex. PW-2/A), he lodged First Information Report by making endorsement (Ex. PW-8/B) on it. Surender Singh, the other injured taken to Colmet Hospital was unfit to make statement. During investigation, the assailants were arrested. The Investigating Officer examined the witnesses conversant with the facts and after collecting all the evidence submitted a charge-sheet to the competent Court which in turn transmitted the case to the Court of Sessions for trial. The prosecution in order to bring home the charge examined ten witnesses and brought number of documents on record. In their 313 statements, the accused persons pleaded false implication and examined DW-1 (Kamal Gambhir) in defence. After conclusion of the trial, on appreciating the evidence on record, the learned Trial Judge came to hold the appellants guilty of the offences under Sections 307 /324 /34 IPC. It is relevant to note that Shashi Shekhar was acquitted of the charges and the State did not opt to challenge the acquittal. Being aggrieved, the appellants have preferred the appeal.

Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimonies of interested witnesses PW-1 (Surender Singh) and PW-2 (Virender Singh), real brothers, without independent corroboration. It is argued that the material omissions, discrepancies in the evidence of the witnesses create an incurable dent in the case of the prosecution. He contended that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its legs and cannot take advantage of the weakness of the defence. The Court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Ingredients of Section 307 IPC are not attracted as solitary stab blow was inflicted on the body of the victims. A-2 was not named in the First Information Report. The prosecution was unable to establish common intention among the assailants to inflict injuries to the victims. The doctor who medically examined PW-1 (Surender Singh) was not examined to prove the nature of injuries suffered by him. Testimony of PW-10 (Dr. Yogesh Gautam) regarding describing nature of injuries ''dangerous'' cannot be accepted. It was procured from a private hospital to make out a case u/s 307 IPC. The Doctor, who examined PW-2 (Virender Singh) at the first instance, was not produced. Per contra, learned Addl. Public Prosecutor supported the findings of the Trial Court and urged that the appellants were author of the injuries deliberately caused to the victims in furtherance of their common intention. The Trial Court''s findings do not warrant any interference by this Court.

The occurrence took place on 05.03.1996 at about 12.30 P.M. MLC mark ''A'' (of Virender Singh) reveals that he was taken to Safdarjung Hospital and on the basis of information given by duty Const. Mahesh, Daily Diary (DD) No. 12A (Ex. PW-8/A) was recorded at PS Sarojini Nagar at 13.15 P.M. The Investigating Officer recorded Virender Singh''s statement (Ex. PW-2/A) and lodged First Information Report without any delay at 02.10 P.M. In the version narrated to the police at the first instance, Virender Singh implicated A-1 and his two associates for inflicting injuries to him and his brother Surender Singh by a knife. Non-mentioning A-2''s name in the FIR is of no consequence as it has come in evidence that he (A-2) was not known to the complainant prior to the occurrence. In the FIR, Virender Singh claimed to recognise and identify the assailants. During investigation, the Investigating Officer moved an application for holding Test Identification Proceedings conducted by PW-6 (V.K. Goel, MM) on 16.04.1996 (Ex. PW-6/B). A-2 declined to participate without cogent and valid reasons. In their Court statements, both PW-1 and PW-2 identified A-2 without hesitation. An adverse inference is to be drawn against A-2 for refusing participation in TIP. Moreover, substantive evidence is identification of the assailant in the Court.

Settled legal preposition is that the First Information Report is not an encyclopedia of the entire case and need not contain all the details. A-2''s involvement was revealed by another witness Dinesh who could not be examined despite efforts made to procure his presence due to non-availability of his address. PW-1 and PW-2 attributed and assigned specific role to A-2 in the crime and the role has been established by cogent and reliable evidence. Non-mentioning of A-2''s name, thus, would not be fatal to the prosecution case. PW-1, Surender Singh in Court statement deposed that on 05.03.1996 at about 12.30 P.M., A-1 with his associates, A-2 and Neeraj arrived at the spot. A-1 caught hold of his brother''s hands and exhorted his associates, ''Maro Sale Ko''. On that A-2 gave a knife blow on the left side, below left shoulder of his brother. When he intervened to save his brother, A-1 caught hold of his hands and A-2 gave a knife blow on his right and the left side below shoulder. When he tried to catch his hands, he sustained knife injuries on his thumb of left hand. Thereafter, he became unconscious and was taken to Colmet Hospital. In the cross-examination, he fairly admitted that A-2 was not acquainted with him previously. He talked about Dinesh''s presence at the spot and denied Gopal to be present there. He was fair enough to admit that A-1 did not inflict any knife blow either to him or to his brother. He denied that Virender Singh had consumed liquor or that he and his companion Gopal attempted to apply colour to A-1 or that A-1 was implicated due to ill-will. In the cross-examination by A-2, he disclosed that A-1 and the other accused persons had come together. He denied that Virender had sustained injuries in a scuffle with 15-20 people playing Holi. PW-2 (Virender Singh) is another crucial witness who suffered injuries in the occurrence. As observed above, the present case was registered on his statement (Ex. PW-2/A) made without any delay soon after the occurrence. In his Court statement, he proved the version given to the police at the first instance without major variations and implicated both A-1 and A-2 for inflicting injuries to him and his brother Surender. He attributed specific role to A-1 when he caught hold of his hands and exhorted A-2 ''maro sale ko''. A-2 thereafter, inflicted knife injuries on his back and armpit. When his brother Surender intervened, he was caught hold of by A-1 and stabbed by A-2. In the cross-examination, he denied that he sustained injuries in a quarrel in which A-1 intervened and was falsely implicated on that account. He further denied that on the festival of Holi that day he wanted to apply colour on A-1''s face when he came to his shop for purchasing goods. The accused persons were unable to extract any material inconsistency or discrepancy and to shatter his testimony in the cross-examination. Both PW-1 and PW-2 being victims/injured were not expected to let the real culprits go scot free and to falsely implicate A-1 and A-2 with whom they had no prior animosity. A-2 was even not known to the victims before the incident and was not named in the FIR. Both have corroborated each other on all material facts and have assigned and attributed specific and definite role to the each accused in causing injuries by a knife. It was fairly admitted by them that A-1 did not cause any injury by a knife. Relationship between the two brothers is not a factor to affect their credibility. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Their ocular testimony has been corroborated by medical evidence and there is no inconsistency between the two. PW-2 (Virender Singh) was taken to hospital and the MLC mark ''A'' records that he sustained simple injuries by sharp weapon. PW-10 (Dr. Yogesh Gautam) medically examined PW-1 (Surender Singh) on 05.03.1996 at about 01.30 P.M. when he was brought at Colmet Hospital with the alleged history of being stabbed on right side abdomen. On examination, PW-10 (Dr. Yogesh Gautam) found one lacerated wound on the left thumb. There was 2 inch x 1/2 wound in the right lumber region approximately 2 inch above the right tibia bone. The injury was opined ''dangerous'' to life and inflicted with a sharp object. The report is Ex. PW-10/A. In the cross-examination, the witness volunteered to add that the patient was examined by him before operation which was conducted by him on 05.03.1996. There are no sound reasons to disbelieve the opinion given by the expert witness. He had no extraneous consideration to give a false report. The accused persons did not examine any other expert in defence to challenge the report of Dr. Yogesh Gautam. Simply because PW-10 (Dr. Yogesh Gautam) was attached to a private hospital, no ulterior motive to fabricate the report can be inferred.

Taking into consideration the ocular testimony of the injured witnesses coupled with medical evidence, the prosecution was able to establish that the accused persons were authors of the injuries. Both of them had arrived at the crime scene together and had participated in the crime. A-1 had caught hold of the victims and A-2 caused injuries to them by a knife. Earlier, an altercation had taken place with A-1 over applying of colour on Holi. It annoyed him (A-1) and he brought his associate A-2 to settle score. A-2 had no previous animosity with the victims. Only at the instance and exhortation of A-1, who admitted his presence at the spot, he caused injuries to them. Apparently, both the appellants shared common intention to inflict injuries to the victims. There is substance in the appellants'' contention that they had no intention to attempt to murder any of the victims. It has come in evidence that there was no history of hostile relations between the victims and the accused persons. A-2 was a stranger and unknown to the injured persons prior to the occurrence. Incident of quarrel had taken place with A-1 in the morning who was residing since 1983 in the neighbourhood of the victim. The accused persons did not anticipate arrival of the victims at the place of occurrence. No fatal injuries were inflicted to PW-2 (Virender Singh) with whom A-1 nurtured ill-will/annoyance. Again, repeated stab blows were not caused on vital organs to PW-1 (Surender Singh). The occurrence was outcome of a sudden quarrel and the injury inflicted was not with the avowed object or intention to cause death. u/s 307 IPC, the determinative question is intention or knowledge, as the case may be, and not nature of injuries. In the instant case, both intention and knowledge in terms of Section 307 IPC could not be attributed to the accused persons. Since grievous/dangerous hurt was caused voluntarily to PW-1 (Surender Singh), both the accused persons can be held liable/responsible for committing offence under Sections 326 /34 IPC. Accordingly, the conviction is altered to Sections 326 /324 /34 IPC.

The appellants were sentenced to undergo RI for two years with total fine Rs. 1,500/-, each. The incident pertains to the year 1996. A-2''s nominal roll reveals that he remained in custody for seventeen days and was not involved in any other criminal case; his overall jail conduct was satisfactory. A-1 is also stated to have remained in custody for three or four months and had no criminal antecedents. Considering the mitigating circumstances, the sentence order is modified and the substantive sentence awarded to A-1 and A-2 is reduced from two years to one year under Sections 326 /324 /34 IPC. Other terms and conditions of the sentence order are left undisturbed. The appellants shall, however, pay the unpaid fine (if any) and deposit Rs. 40,000/-, each as compensation within fifteen days in the Trial Court. The compensation Rs. 80,000/- shall be released to the victims ( Rs. 50,000/- to the Surender Singh and Rs. 30,000/- to the Virender Singh) after service of due notice. The appeal stands disposed of in the above terms. The appellants are directed to surrender before the Trial Court on 3rd January, 2014 to serve out the remaining period of sentence. Trial Court record be sent back immediately with the copy of the order. Pending application also stands disposed of.