Crl. A. 1336/2011. Case: Tarun Vikram Vs State. High Court of Delhi (India)
| Case Number | Crl. A. 1336/2011 |
| Counsel | For Appellant: K. Singhal and Shashi Mohan, Advocates and For Respondents: M.N. Dudeja, Additional Public Prosecutor |
| Judges | Sunita Gupta, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 154, 155, 156, 157, 161, 190, 193, 196, 197, 197(1), 313, 315, 428; Delhi Police Act, 1978 - Sections 140, 19; Indian Penal Code 1860, (IPC) - Sections 186, 307, 323, 353, 372, 392, 397, 506, 80 |
| Judgement Date | December 02, 2014 |
| Court | High Court of Delhi (India) |
Judgment:
Sunita Gupta, J.
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The challenge in this appeal is to the judgment dated 26.09.2011 and order on sentence 27.09.2011 by which the appellant was convicted under Sections 307 of Indian Penal Code 1860 (IPC) and was sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs. 25,000/- and in default of payment of fine, further six (6) months simple imprisonment. The appellant was also given the benefit of the provisions of Section 428 of Cr.P.C.
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Facts germane to the Prosecution case succinctly stated are as follows:-
On 17.09.2004 at about 12:30 AM, Investigating Officer SI Rajnikant received DD no. 3A Ex. PW 18/A to the effect that someone in a black colour Santro Car no. 1121 has fired upon some person near Acharya Niketan Apartment. SI Rajnikant alongwith Constable Raj Kumar started for the spot but in the meanwhile, they came to know that the injured has been shifted to Kailash Hospital, Noida. They reached Kailash Hospital where injured Subhash was found admitted in the ICU and was declared unfit for statement. SI Rajnikant also came to know that the injured Subhash has been fired upon his chest. Thereafter, he alongwith Constable Raj Kumar reached near Upkar Apartment where the guard of Upkar Apartment namely Raghav Tiwari met them and told them that he had heard the noise of firing from a distance of about 100-150 metres and he also produced the I-Card of Delhi Police, ATM Card and Reliance Nokia phone of the accused/appellant which were seized vide seizure memo Ex. PW7/C. Thereafter, they returned back to Police Station Mayur Vihar. After some time, constable Satender of Police Station Kalyan Puri reached PS Mayur Vihar and produced the accused alongwith one.38 revolver, 4 live cartridges and one used cartridge. Constable Satender also produced MLC of the accused Ex. PW3/A. Sunder Singh (PW2) came to the Police Station and identified the appellant and informed that Santro Car No. 1121 was being driven by the accused himself. During the course of investigation, the Santro Car used in the commission of the offence was seized. After completing the investigation, chargesheet was submitted against the accused for offence u/s. 307 IPC.
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Charge for offence under Section 307 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
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In order to substantiate its case, prosecution examined in all 18 witnesses. All the incriminating evidence was put to the accused while recording his statement under Section 313 Cr.P.C. wherein he denied the case of prosecution and alleged his false implication in this case. He took the plea that one criminal complaint case bearing No. 699/2004 filed by him titled Tarun Vikram v. Subhash & Sunder u/s. 392/397/353/372/186/307/323/506 IPC is pending before Sh. Devender Garg Ld. Metropolitan Magistrate KKD Courts, Delhi. In his defence, he led one defence witness besides examining himself as DW1.
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After analysing the evidence adduced by the prosecution, vide impugned judgment, the learned Additional Sessions Judge convicted the accused for offence under Section 307 IPC and sentenced him as mentioned hereinbefore.
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The finding of the learned Trial Court has been assailed by the learned counsel for the appellant. Broadly, the submissions made by him may be categorized as under:-
i) Prosecution has failed to prove the crime spot itself which is otherwise disputed. No crime team was called at the spot. No photographs of the alleged crime scene were taken. No blood, blood stained earth or sample earth control were lifted from the spot. Apart from failure to discharge his duty to prove the crime scene, further prejudice has been caused to the appellant as the appellant is claiming the place of incident as near the nala side towards main road from the side of Subhash Market, Trilokpuri where the incident of robbery was committed with him whereas the so called injured PW1 and his companion PW2 initially claimed the place of incident as "East End Apartment" as mentioned in MLC Ex. PW11/A of Kailash Hospital whereas in their statements before the police as well as Trial Court, they claimed the place of crime as 'Upkar Apartment'. This is a serious lacunae in the prosecution case. Reliance was placed on Buta Singh v. State of Punjab, AIR 1991 SC 1316.
ii) Injuries on the person of injured has not been proved by the operating doctor. In the absence of examination of operating doctor, injuries, manner of injuries, track of wound, distance of wound were not proved.
iii) So far as the factum of receiving bullet injury on the chest, the appellant having the possession of revolver and the FSL report, same are not disputed by him. Rather they support the defence of appellant that injured along with his companion robbed the appellant, tried to snatch the revolver and during that scuffle a bullet accidentally fired due to the fault of the injured.
iv) The appellant was working as Constable in Delhi Police. As such, under Section 140 of Delhi Police Act r/w Section 197 of Cr.P.C., sanction was required to be obtained launching his prosecution which as per Section 140 of Delhi Police Act was to be obtained within one year of the date of offence, however, it was obtained belatedly. As such, the sanction is bad in law. Reliance was placed on SI Manoj Pant v. State, 1999 CriLJ 844.
v) PW1 & 2 are false witnesses. Their testimony suffered from various discrepancies. As such, no reliance can be placed on the same.
vi) The appellant examined himself on oath under Section 315 of Cr.P.C. No cross-examination was done qua the allegations levelled by the appellant. Apart from examining himself, he also examined DW2 Jagbir Singh who was an eye-witness to the incident. Defence witnesses are entitled to the same weight as that of prosecution witnesses. Reliance was placed on Atender Yadav v. State, 2013(4) JCC 2962.
vii) The complainant and the Investigating Officer was the same person which is not permissible under law. Prejudice has been caused to the appellant. Reliance was placed on Megha Singh v. State of Haryana, 1996 11 SCC 709.
viii) The appellant sustained injuries which the prosecution has failed to explain.
ix) Alternatively, there was no intention on the part of the appellant as the parties were not known to each other from earlier. There was no previous enmity. Moreover, the appellant is protected under Section 80 IPC.
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On the basis of aforesaid submission, it was submitted that the appellant has come up with a probable, reasonable and truthful version, as such, his conviction is liable to be set aside as the prosecution case itself is full of doubts and based upon inconsistent version.
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Per contra, it was submitted by Mr. M.N. Dudeja, learned Additional Public Prosecutor for the State that the testimony of the injured witness PW1 Subhash stands at a higher pedestal than any other witness and the same is also corroborated by the testimony of PW2 Sunder who is also the eye witness to the incident. Their testimony finds substantial corroboration from the other evidence on record including the medical evidence. This is a case where the appellant being a Police constable and holding a public office has misused his official service revolver and caused grave injury to a person in a fit of anger. As a public servant, the appellant had the duty to protect public persons and be extra cautious with respect to his revolver but instead due to a petty quarrel on the road, he attempted to commit murder of the injured by firing the bullet on his chest. As regards the sanction under Section 197 Cr.P.C. is concerned, it was submitted that even though sanction was obtained for prosecuting the appellant, however, it was no part of his duty to fire upon an innocent person without any rhyme and reason, therefore, even sanction was not required to launch prosecution against him. In any case, no such plea was taken by the appellant before the learned Trial Court and, as such, such a plea taken for the first time before this Court is not tenable. Reliance was placed on State of Orissa through Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew, (2004) 8 SCC 40. Under the circumstances, no fault can be found with the finding of the learned Trial Court and the appeal is liable to be dismissed
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I have given my considerable thoughts to the respective submissions of learned counsel for the parties and have carefully perused the record.
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It is not in dispute that the appellant was posted as a constable in Delhi Police. On the fateful day he was assigned patrolling duty within the jurisdiction of Police Station Kalyanpuri; he was having a service revolver with him which fired and PW1 sustained bullet injury on his chest. After the incident, the appellant himself had surrendered his service revolver, four live cartridges and one fired cartridges to Constable Satender Kumar (PW13) which were seized vide seizure memo Ex. PW7/B. Blood stained baniyan of injured Subhash was also seized vide Ex. PW7/G. During the course of investigation, same were sent to FSL, Rohini and were examined by PW9-Mr. Puneet Puri, Senior Scientific Officer, Ballistic-cum-Chemical Examiner who gave his detailed report Ex. PW9/A, according to which revolver was in working order. Fired empty cartridge was fired from this revolver. The hole on the baniyan was caused by a cupro jacketed bullet discharged from a firearm as the gunshot residue particles were detected around the hole.
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The prosecution case primarily rests on the testimony of the injured PW1 Subhash and his nephew PW2 Sunder who was accompanying the injured when the incident took place and is an eye witness to the incident. Before referring to the testimony of PW1, it will be relevant to note the evidentiary value of an injured witness.
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It is trite law that the evidence of injured witness has greater evidentiary value and unless compelling reasons exist, his statement is not to be discarded lightly. In Akhtar and...
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