LALA @ SHAMIM Vs. THE STATE (NCT OF DELHI)

JUDGEMENT

(1.) LALA @ Shamim (A -1) and Furkhan @ Raju (A -2) impugn judgment dated 28.04.2012 and order on sentence dated 04.05.2012 in Sessions Case No. 128/2010 arising out of FIR No. 529/2008 registered at Police Station Sarita Vihar by which they were held guilty for committing offence punishable under Sections 307 /34 IPC and sentenced to undergo RI for six years with fine Rs. 1,000/ - each. Daily Diary (DD) No. 35A (Ex. PW -5/A) was recorded on 16.10.2008 at around 22.45 hours at Police Station Sarita Vihar on getting information from Constable Neeraj Kumar (PW -2) that two boys who arrived on motorcycle fled the spot after firing at Saleem s/o Yasin at village Jasola. The investigation was assigned to SI Padam Singh Rana who went to Apollo hospital. Injured Mustakin @ Saleem was fit to make statement and the investigating officer recorded his statement. He disclosed that on 16.10.2008 at about 09.30 P.M. when he was sitting outside his shop A -1 and A -2 came and demanded Rs. 5,000 -7,000/ - from him. When he told that he was not having money, A -2 exhorted A -1 to fire at him (maar saale ko goli). A -1 took out a katta and fired on his neck. He fell down. After hearing his cries, Constable Neeraj arrived and admitted him at Apollo hospital. He further disclosed that earlier also A -1 and A -2 had demanded money from him and had extended threats for which he had lodged report with the police. SI P.S. Rana lodged First Information Report with the police. Necessary proceedings were conducted at the spot. Efforts were made to find out the assailants but in vain. During the course of investigation, the accused were arrested. The crime weapon was recovered by the police of P.S. Pisawa, Aligarh, U.P. from A -1 in case FIR No. 182/2009. Statements of witnesses conversant with the facts were recorded. On completion of investigation, charge -sheet was submitted against the accused. They were duly charged and brought to trial. The prosecution examined 17 witnesses. In their 313 statement, the accused pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, held both the accused guilty under Section 307 /34 IPC and sentenced them. Being aggrieved, the appellants have preferred the appeals.

(2.) LEARNED counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective. No independent public witness was associated at any stage. Adverse inference is to be drawn against prosecution for not examining Latori who arrived the spot. The police did not examine any neighbor to ascertain if fire shot was heard by any of them. The doctor who opined the nature of injuries as 'dangerous' was not examined despite his availability in Apollo hospital. The prosecution could not establish that the crime weapon was recovered at A -1's instance. The victim has given inconsistent version and made vital improvements in his deposition. A -1 was not known to the victim and he had no motive to inflict injury on his neck. He was arrested after one year of the incident. Section 307 IPC is not made out or proved as the injuries suffered by the victim were not sufficient to cause death in the ordinary course of nature. Forensic Science Laboratory Report does not establish appellants' involvement. Learned Additional Public Prosecutor urged that the victim had no ulterior motive to falsely implicate the accused. There is no conflict between the ocular and medical evidence.

(3.) ON scrutinizing the testimony of the victim, it transpires that no material discrepancies have emerged to disbelieve him. Injuries suffered by him on neck were not challenged. The accused did not deny their presence at the spot. Material facts deposed by the victim remained uncontroverted in the cross -examination. No ulterior motive was proved to force the victim to falsely rope in the accused. His testimony is consistent with the medical evidence. PW -4 (Dr. Ambuj Kumar Singh, CMO, Apollo Hospital) proved MLC (Ex. PW -4/A). He had medically examined the injured. On local examination, lacerated wound around 1 cm over left side of the neck (mid neck) was found. He further deposed that the bullet was taken out by Dr. Harsh Bhargav from the neck of the injured during operation. The accused did not opt to cross -examine him. Nature of injuries was given as 'dangerous' on MLC (Ex. PW -4/A) by Dr. Harsh Bhargav.