SHIVENDER PANDEY @ PANDIT Vs. STATE

JUDGEMENT

(1.) SHIVENDER Pandey @ Pandit (A -1), Virender @ Kalia (A -2), Pushpender @ Praveen (A -3) and Dinesh @ Guddu (A -4) impugn a judgment dated 25.04.2012 in Sessions Case No.41/2011 arising out of FIR No.102/2011 registered at Police Station Ashok Vihar by which they Crl.A.Nos.644/12 & 648/12 Page 1 of 13 were convicted under Section 308/34 IPC. By an order dated 08.05.2012 they were sentenced to undergo RI for three years with fine Rs.2,000/ - each.

(2.) ALLEGATIONS against the appellants, as projected in the charge - sheet, were that on the night intervening 20/21.04.2011 at around 12.15 AM (night), A -1 to A -3 took victim -Rohit to Wazirpur Industrial Area, near Railway Line, in front of Jhuggi No.N -28A -591, Chander Shekhar Azad Colony. The fourth accused (A -4) was already present there with a country -made pistol. It is alleged that A -4 handed over the 'katta' to A -1. A -2 and A -3 caught hold of Rohit and raised his hands in different directions; A -1 fired at him as a result of which Rohit fell down. It is further alleged that, thereafter, A -1 took out Rohit's mobile bearing No.9278857814 and A -4 took out his purse containing identity card and cash Rs.200/ -. Someone made a call to the police at 100. PCR van arrived at the spot; took Rohit to Babu Jagjivan Ram Memorial hospital; and referred to Lok Nayak Jai Prakash Narayan hospital from there. DD No.3A (Ex.PW19/A) was recorded at police station Ashok Vihar at 01.05 A.M. regarding the incident. The investigation was assigned to ASI Om Pal who with Ct. Devendra went to the spot. The victim was 'unfit' to make statement. The Investigating Officer lodged First Information Report by sending rukka (Ex.PW -19/C). During investigation, statements of witnesses conversant with the facts were recorded. The accused persons were arrested and pursuant to their disclosure statements, mobile phone and purse belonging to the victim were recovered. Exhibits were sent to Forensic Science Laboratory. After completion of investigation, a charge -sheet was submitted against the accused persons for committing offences under Section 307/201/34 IPC; they were duly charged; and brought to trial. To substantiate the charges the prosecution examined 20 witnesses in all. In 313 statements, the accused persons pleaded false implication and denied their complicity in the crime. They examined DW -1 (Ram Prakash) in defence. After considering the rival contentions of the parties and appreciating the evidence and documents on record, the trial court by the impugned judgment held all of them guilty under Section 308/34 IPC. It is relevant to note that the State did not challenge the conviction under Section 308/34 IPC instead of Section 307 IPC. Being aggrieved and dissatisfied, the appellants have preferred the appeals.

(3.) PERSONS had fled after firing at him. The victim was treated first at Babu Jagjivan Ram Memorial hospital and MLC (Ex.PW -6/A) records the arrival time of the patient there at 01.30 a.m. brought by ASI Zile Singh of PCR. It further records that the patient was 'unfit' for statement at that time though he was oriented and conscious. There are endorsements dated 21, 22, 23 and 26.04.2011 when the victim was not 'fit' to give statement. On 04.05.2004, the victim was declared 'fit' for statement. The nature of injuries was opined as 'grievous.' The prosecution produced PW -6 (Dr.Lavnish), PW -7 (Dr.Neeraj Chaudhary), PW -10 (Dr.Brahmanand Lal) and PW -15 (Dr.Vikas Singh Tomar), who examined the patient who underwent exploratory laparotomy and was discharged from the hospital on 13.05.2011. Injuries suffered by the victim are not under challenge. Appellants' only plea is that they were not the author of the injuries and have been falsely named by the victim due to previous enmity. 4. So far as A -4 is concerned, it is on record that he was not acquainted with the victim and had no animosity with him. It is pertinent to note that A -1 arrested on 24.04.2011 in the disclosure statement (Ex.PW -14/C) did not attribute any role to A -4 and claimed that only he, A -2 and A -3 had caused injuries to the victim. Subsequently, on 25.04.2011, supplementary disclosure statement (Ex.PW -14/L) was recorded where A -1 implicated A -4 and disclosed that he had handed over a country made pistol to him at the crime spot to fire at Rohit and had removed a purse from Rohit's pocket. Prior to that, the Investigating Officer had no incriminating material to effect A -4's arrest on 25.04.2011 itself on the pointing out of the secret informer. Allegedly, pursuant to his disclosure statement (Ex.PW -14/O), purse (Ex.P -5) containing I -card and 2 -3 visiting cards of the victim were recovered and seized vide seizure memo (Ex.PW -14/Q). Despite attempts made by the prosecution, the crime weapon i.e.pistol could not be recovered. It is relevant to note that the trial court in the impugned judgment did not believe the recovery of mobile phone and purse. Only evidence that emerged against A -4 was the sole testimony of PW -8 (Rohit), who identified him in the court as the assailant who had made available the country -made pistol to A -1 to fire at him and had taken out his purse. PW -8 (Rohit) did not assign any motive to A -4 for assisting or facilitating A -1 to A -3 to inflict injuries to him. He (A -4) had not accompanied them (A -1 to A -3) at the house of the victim when allegedly they had taken him along. PW -16 (Ravi), Rohit's brother and (PW -17) Rohit's father, did not ascribe any role to A -4 in taking away Rohit from the house. There was no earthy reason for A -1 to A -3 to involve A -4 in the conspiracy. Admittedly, after A -4's apprehension, the Investigating Officer did not move any application for holding Test Identification Proceedings. The occurrence had taken place at night time and A -4 was not acquainted with the victim prior to the occurrence. It was expected to get his identity established from the victim whose statement was recorded after a considerable delay on 05.05.2011. A -4's identification for the first time in the court is not enough to prove his involvement in the crime particularly when no crime weapon was recovered at his instance and the recovery of the purse was disbelieved by the trial court. Even in Court statement, Rohit did not identify A -4 by name and merely pointed at him as one of the assailants to whom A -1 to A -3 had met at the crime spot. In the information recorded in PCR Form (Ex.PW -12/A), the victim did not give the exact number of assailants and merely described it three -four. Earlier the information conveyed to the PCR was that an individual has been stabbed by a 'knife'. The complainant who had revealed his name to PW -4 (ASI Zile Singh) did not name A -4 as one of the assailants. Considering all these deficiencies in the evidence, it was not safe to convict A -4 with the aid of Section 34 IPC. A -4 deserves benefit of doubt and is acquitted.