JOGINDER SINGH @ MOR Vs. STATE OF DELHI

JUDGEMENT

(1.) Joginder Singh @ Mor (A-1), Kuldip Kumar @ Raju Langda (A-2) & Sunil @ Ganja (A-3) impugn a judgment dated 01.04.2003 of learned Addl. Sessions Judge in Sessions Case No. 38/98 arising out of FIR No. 339/95 PS Janak Puri by which they were convicted under Sections 307/34 IPC and 25/27 Arms Act. By an order dated 02.04.2003, they were sentenced to undergo RI for five years with fine Rs. 10,000/- each under Sections 307/34 IPC; RI for one year with fine Rs. 1,000/- each under Sections 25/27 Arms Act. The sentences were directed to operate concurrently.

(2.) Allegations against the appellants were that on 08.06.1995 at about 09.30 P.M. at Mangal Bazar Road, Uttam Nagar, Delhi near Sharma Hotel, they in furtherance of common intention attempted to murder Jai Bhagwan by firing at him. The first shot aimed at Jai Bhagwan missed and hit Nagendu who sustained injuries. They fired again and the shot hit the complainant Jai Bhagwan on his chest. The police machinery came into motion after Daily Diary (DD) No. 36 (Ex.PW-15/A) was recorded at 10.00 P.M. on 08.06.1995 at Police Post, East Uttam Nagar on information from PCR that 'firing' was going on behind Arya Samaj Road Temple. The investigation was assigned to SI R.D.Yadav who with Const.Ram Kumar and other police officials went to the spot. The injured had already been taken to DDU Hospital. SI R.D.Yadav collected MLCs of the victims Jai Bhagwan and Nagendu and lodged First Information Report after recording Jai Bhagwan's statement (Ex.PW-6/A). Scooter No. DL-4 SC 9623 found at the spot was seized. During the course of investigation, statements of the witnesses conversant with the facts were recorded. A-1 to A-3 were arrested and pursuant to their disclosure statements, A-2 and A-3 recovered country-made pistols. Exhibits were sent to Forensic Science Laboratory (FSL). Ashwani and Sanjiv Sethi charge-sheeted along with A-1 to A-3 were discharged vide order dated 15.01.1999 and the State did not challenge the discharge order. A-1 to A-3 were duly charged and brought to Trial. To bring home their guilt, the prosecution examined twenty-two witnesses. In their 313 statements, the appellants pleaded false implication and denied their complicity in the crime. After hearing the contentions of the parties and appreciating the evidence on record, the Trial Court, by the impugned judgment, convicted A-1 to A-3 for the offences mentioned previously. Being aggrieved, they have preferred the appeals.

(3.) Appellants' counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective. PW-7 (Lekh Raj) and PW-19 (Ramesh Mehta) were falsely introduced as eye witnesses though they were not present at the spot. The Trial Court fell in grave error to place reliance on their tainted version. They lacked credibility being interested witnesses and having criminal antecedents. Complainant Jai Bhagwan himself was involved in number of criminal cases and was Bad Character (BC) of the area. The recoveries are doubtful. The country made pistol recovered was not connected / linked with the crime. The concerned doctor who medically examined Jai Bhagwan was not produced to prove the nature of injuries suffered by him. The investigation is tainted and unfair. Adverse interference is to be drawn against prosecution for withholding Nagendu, the other injured. The counsel adopted alternative argument to release the appellants for the sentence already undergone by them in case they were found guilty. Learned Addl. Public Prosecutor supporting the judgment urged that it is based upon fair appraisal of evidence and warrants no interference. Despite all efforts to procure Nagendu's presence, he could not be traced and examined.