ARVIND KUMAR Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) ARVIND Kumar (the appellant) is aggrieved by a judgment dated 18.01.2011 in Sessions Case No. 66/09 arising out of FIR No. 958/04 PS Uttam Nagar by which he was convicted for committing offence punishable under Section 307 IPC and by an order on sentence dated 19.01.2011, was awarded RI for seven years with fine Rs.10,000/ -.

(2.) ALLEGATIONS as described in the charge -sheet were that on 05.11.2004 at about 06.30 A.M., Old Palam Road, in front of Prince Electrical, Kakrola, Uttam Nagar, Delhi, the appellant - Arvind Kumar inflicted injuries to Shadab by firing at him with a country -made pistol. The Investigating Officer, after recording Shoaib Zameer 's statement (Ex.PW -7/A), lodged First Information Report. On 06.11.2004, the accused was apprehended and pursuant to his disclosure statement, country -made pistol with cartridges was recovered from his residence. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was filed against the accused; he was duly charged and brought to trial. In 313 statement, he denied complicity in the crime and alleged false implication as he had intervened in an altercation between the victim and his neighbourer Shambhu. He did not prefer to examine any witness in defence. The trial resulted in his conviction as aforesaid.

(3.) IN statement (Ex.PW -7/A) which formed the basis of registration of First Information Report victim 's brother - Shoaib Zameer gave detailed account of the occurrence. He described as to how and under what circumstances, the accused Arvind Kumar who was coming from the opposite side on a bicycle signalled his brother - Shadab driving motorcycle bearing No. DL -1SP -1866 on which he was sitting as pillion to stop and fired on his chest and inflicted injuries to him. The occurrence took place at about 06.30 A.M. when the victim and his brother - Shoaib Zameer were going to their duties on the motorcycle. Daily Diary (DD) No. 44 (Ex.PW -5/A) was recorded at 06.40 A.M. on getting information that an individual has been shot. Another Daily Diary (DD) No. 45 (Ex.PW -5/B) was recorded at 07.20 A.M. when Duty Const. Yashpal from DDU hospital informed regarding admission of Shadab due to bullet injury in injured condition by his father. MLC (Ex.PW -8/A) records the arrival time of the patient at DDU hospital at 07.15 A.M. Apparently, there was no delay in putting the police machinery into motion and the First Information Report was lodged in promptitude. In the statement (EX.PW -7/A), the appellant was specifically named for firing the shot. While appearing as PW -1, the victim fully proved the version recorded in Ex.PW -7/A and implicated the appellant for inflicting injuries to him by firing at him with a country -made pistol. In the cross -examination, the complainant admitted that the occurrence took place at a distance of about half kilometre from his house. His brother did not chase the accused or made efforts to catch hold of him. He denied the suggestion that due to his closeness with Sanju 's sister, he had an altercation with him and the accused had intervened at that time. He denied the suggestion that someone else had fired at him and he could not recognise the said assailant. Needless to say, injuries sustained by the victim are not under challenge. The accused lived in the vicinity of the victim and was known to him by face. He identified and recognised him as the assailant who had fired at him. There are no sound reasons to disbelieve the version narrated by the witness who had got injuries 'dangerous ' in nature on his vital organ. He was not expected to spare the real offender and to falsely implicate an innocent one without any cogent reasons. PW -7 (Shoaib Zameer), his brother, has corroborated his testimony on all material facts. He also attributed specific role to the accused when he took out the katta from his dub and fired at his brother stating that he would not spare him. He further deposed that he took his brother to the house and from their house, he and his father took him to DDU hospital where his statement (Ex.PW -7/A) was recorded. He also proved recovery of the country -made pistol and four cartridges at the instance of the accused pursuant to his disclosure statement from his house after his arrest. In the crossexamination, no material discrepancies or contradictions could be elicited to doubt the version of the witness. PW -2 (Zameer Ahmed), victim 's father, was not a witness to the incident. He supported their version to the extent that he had taken the victim to DDU hospital. No ulterior motive was assigned to PW -1 and PW -7 for implicating the accused falsely. In the absence of prior ill -will or enmity, these independent witnesses had no extraneous consideration to fake the incident to falsely rope in the accused. Their testimony is in consonance with medical evidence. PW -8 (Dr.Uday Kumar Singh) medically examined Shadab on