MUSLIM @ SALIM Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Challenge in these appeals is to a judgment dated 03.08.2011 of learned Addl. Sessions Judge in Sessions Case No. 99/10 arising out of FIR No. 1012/07 PS Sangam Vihar by which Muslim @ Salim (A-1), Kafil Ahmad (A-2) and Amit (A-3) were held perpetrators of the crime under Sections 398/308/34 IPC and awarded RI for seven years with fine Rs. 3,000/-, each under Section 398 IPC; RI for three years with fine Rs. 2,000/-, each under Section 308 IPC by an order dated 17.08.2011. The substantive sentences were to operate concurrently. Allegations against the appellants as detailed in the charge-sheet were that on 23.10.2007 at about 02.45 A.M. in front of house No. 1007, C- Block, Sangam Vihar, they in furtherance of common intention while armed with deadly weapons robbed Laxmi Narain and inflicted injuries to him. The police machinery swung into action on receipt of Daily Diary (DD) No. 59A (Ex.PW-11/A) at PS Sangam Vihar. The investigation was marked to HC Ali Mohammad who with Const. Kamal went to the spot and came to know that the victim had already been taken to AIIMS. The Investigating Officer, after recording statement of Laxmi Narain (Ex.PW-5/A), lodged First Information Report. PW-2 (HC Suresh Tomar) recorded the First Information Report (Ex.PW-2/A). During investigation, statements of the witnesses conversant with the facts were recorded. The accused persons were apprehended and arrested in case FIR Nos. 1059/07, 1060/07 and 1061/07 under Section 25 Arms Act, PS Nihal Vihar. Pursuant to disclosure statements, their involvement in the instant case surfaced. They participated in the Test Identification Proceedings and correctly identified by the complainant. After completion of investigation, a charge-sheet was filed against all of them; they were duly charged and brought to trial. The trial resulted in their conviction.

(2.) The occurrence took place in the night intervening 22/23.10.2007 at around 02.45 A.M. The information to the police was conveyed regarding the incidence at 04.07 A.M. and Daily Diary (DD) No. 59A (Ex.PW-11/A) was recorded. The Investigating Officer recorded statement of the complainant Laxmi Narain (Ex.PW-5/A); made endorsement (Ex.PW-11/A) over it and sent rukka for registration of the FIR at 05.30 A.M. PW-3 (Parmeshwar Yadav), PW-4 (Subhash Tyagi) and PW-6 (Umesh Kant), who lived in the neighbourhood of the victim, arrived at the spot on hearing the noise and found Laxmi Narain in an injured condition. They took him to AIIMS. MLC (Ex.PW-15/A) records the arrival time of the patient at AIIMS at 04.09 A.M. with the alleged history of assault; stab injury. Apparently, there was no delay in lodging the police report. In the statement (Ex.PW-5/A), the complainant gave detailed account of the occurrence as to how and under what circumstances injuries were inflicted to him by four assailants armed with various weapons. In his Court statement, the complainant proved the version given to the police at the earliest available opportunity and identified the appellants as the assailants who had caused injuries to him with various weapons in their possession. In the cross-examination, no ulterior motive was assigned for implicating the appellants with whom he had no prior acquaintance or animosity. The accused persons were unable to extract any material discrepancy to disbelieve his version. Injuries sustained by the victim remained unchallenged in the cross-examination. The witness not only identified these appellants in the Court but also identified them in Test Identification Proceedings conducted at Tihar jail by PW-13 (Mr.Sanjay Bansal), Addl. Chief Metropolitan Magistrate. The Test Identification Proceedings (Ex.PW-13/B, Ex.PW-13/C and Ex.PW- 13/D) reveal that the complainant was able to identify correctly all the assailants. There is no substance in the plea of the appellants' counsel that the complainant was shown the photographs prior to holding of the Test Identification Proceedings. No such plea was taken by the appellants when they readily agreed to join the Test Identification Proceedings. Nothing has come on record as to when and where the complainant had seen the appellants in the police station. The complainant categorically asserted that the photos of the accused persons were shown to him after the Test Identification Proceedings. There is no valid or sound reasons to disbelieve the testimony of the witness who had sustained injuries at odd hours near his residence. The accused persons did not explain the specific reason / purpose for their presence at odd hours near the residence of the complainant. They did not offer plausible explanation to the incriminating circumstances proved against them in 313 statements.

(3.) There is no conflict between the ocular and medical evidence. The prosecution examined PW-15 (Dr.Ram Karan Chaudhary) who proved the MLC (Ex.PW-15/A) prepared by Dr. Avinash Prakash. He identified his handwriting and signatures on the basis of medical record. The nature of injuries given 'simple' caused by sharp object was not questioned in the cross-examination. PW-18 (Dr.B.L.Chaudhary) gave detailed opinion (Ex.PW-18/A) and was of the view that the injuries mentioned in the MLC were possible with the knives shown to him. He also stated that the cut marks on the clothes produced before him were possible with the said weapons. The prosecution was able to prove that the appellants in furtherance of common intention inflicted injuries to the complainant.