TINKU Vs. THE STATE (NCT OF DELHI)

JUDGEMENT

(1.) CHALLENGE in this appeal is to a judgment dated 17.04.2012 of learned Addl. Sessions Judge in Sessions Case No. 404/09 arising out of FIR No. 160/2009 PS Narela by which the appellants -Tinku @ Sandeep (A -1), Bintoo (A -2) and Sumit @ Dhoni (A -3) were convicted under Sections 307/34 IPC. By an order dated 20.04.2012, A -1 and A -2 were awarded RI for three and a half years with fine Rs. 10,000/ - each and A -3 was sentenced to undergo RI for five and a half years with fine Rs. 10,000/ -.

(2.) BRIEFLY stated, the prosecution case as reflected in the charge -sheet was that on the night intervening 03/04.06.2009 at about 12.30 (night) in Gali No. 17B, Swatantra Nagar, Narela, the appellants sharing common intention inflicted injuries to Surender Singh @ Kaku in an attempt to murder him. The information about the incident was conveyed and Daily Diary (DD) No. 6A (Ex. PW -4/A) came into existence at 12.57 (night) at PS Narela. SI Suresh Chand to whom the investigation was entrusted lodged First Information Report after recording complainant -Sonu's statement (Ex. PW -1/A). During investigation, statements of the witnesses conversant with the facts were recorded. The accused persons were arrested and after completion of investigation, a charge -sheet was submitted against them; they were duly charged and brought to trial. The prosecution examined ten witnesses to prove their guilt. In 313 statements, the accused persons pleaded false implication and denied their complicity in the crime. They examined nine witnesses in defence. The trial resulted in their conviction as aforesaid. Being aggrieved, they have preferred the appeal.

(3.) THE complainant in his statement (Ex. PW -1/A) given to the police, soon after the occurrence, gave detailed account of the incident in which injuries were caused to Surender Singh @ Kaku. He attributed specific role to each of the appellants and also disclosed the nature of weapons in their possession. While appearing as PW -1 (Sonu), in Court statement recorded on 19.04.2010, supported the prosecution in its entirety and proved the version given to the police in his statement (Ex. PW -1/A) without any deviations or variation. He implicated the appellants for inflicting injuries to Surender Singh @ Kaku. He deposed that A -1 and A -2 gave beatings to Surender Singh @ Kaku with iron pipe and danda in their hands and A -3 stabbed him on his chest as a result of which, Surender Singh @ Kaku fell down on the ground. The knife remained embedded in the chest and the assailants fled the spot. Surender Singh @ Kaku was taken to Satyavadi Raja Harish Chander Hospital, Narela, by them, where his statement (Ex. PW -1/A) was recorded. Witness could not be cross -examined that day as appellants' counsel requested for an adjournment as he was engaged on that day only. PW -1 (Sonu) appeared for cross -examination on 22.09.2010 after a gap of about five months. This time, he was in judicial custody as an accused in a case under Section 302 IPC. It appears that A -3 who was also in jail prevailed upon him to resile from the statement given before the Court on the previous date of hearing. On 22.09.2010, PW -1 (Sonu) took somersault and claimed that due to darkness, he was unable to see the assailants. He further stated that he had not witnessed anything except blood of the injured on the spot. Apparently, PW -1 (Sonu) was won over and he opted to resile from the statement given on oath before the Court on the previous date of hearing. The complainant was known to the appellants since long. PW -1 (Sonu) had no reasons to wrongly identify him at the time of recording of statement on 19.04.2010 in which he gave vivid description of the entire incident and spoke about the presence of Rajeev @ Raju Rawat and Kaptan. Undoubtedly, he has not presented true facts in the cross -examination to favour the appellants. PW -1 (Sonu) cannot be permitted to sabotage the case of the prosecution and his testimony given before the Court on 19.04.2010 cannot be ignored or excluded.