CRL.A.NO.63-2001 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A.NO.63/2001 Date of Pronouncement 1st July, 2009 # DEVI DAYAL @ RAJU ……. Appellant Through: Mr.K.B. Andley, Sr. Advocate with Mr.Anil Kumar Verma, Ms.Ashu Rani and Mr.Sushil Kumar, Advs. Versus STATE ……. Respondent Through: Mr.O.P. Saxena, APP for State CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes G.S. SISTANI, J: 1. The appellant has been convicted under Section 307 of the Indian Penal Code by a judgment dated 11.01.2001 passed by the learned Additional Sessions Judge in FIR No.329/94, P.S. Greater Kailash, Delhi and sentenced to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs.5,000/-, in default of the payment of fine the appellant was directed to undergo a further Rigorous Imprisonment for a period of six months. 2. The present appeal is directed against the aforesaid judgment dated 11.1.2001 and order on sentence dated 19.1.2001. 3. The facts of this case as noticed by the learned Additional Sessions Judge are that on 25.12.1994 at about 7.15 p.m., Subhash Madan, PW-1, was sitting at his shop. The appellant came at the shop and asked Subhash Madan to come out of the CRL.A.NO.63-2001 Page 2 of 27 shop. The appellant then whipped out a countrymade revolver and fired a shot which hit Subhash Madan in his chest. Thereafter the appellant fled away. Subhash Madan was removed to a hospital by Lala Ram, Bachu Singh, Raju and Rakesh. An intimation about the admission of Subhash Madan in the hospital was given to the police at Police Station, Greater Kailash and DD No.17-A was recorded. PW-9, SI Badruddin Khan and PW-4, Constable Kirpal Singh then went to the AIIMS where Subhash Madan was declared unfit for making a statement. PW- 9, SI Badruddin Khan, recorded the statement (Ex.PW-5/1) of Rakesh Kumar (PW-5) and made an endorsement thereon and sent it to the police station for registration of the case. Subhash Madan remained unfit for making a statement till 02.01.1995. Applications were made from time to time to the Doctor by the I.O. to find out the condition of the injured. Ultimately when Subhash Madan was declared fit, his statement was recorded on 2.1.1995 wherein he stated that he was shot at by Devi Dayal. Although the appellant was arrested and he made a disclosure statement, however, nothing was recovered in pursuance of the disclosure statement. 4. Learned counsel for the appellant submits that the Additional Sessions Judge has failed to appreciate the evidence on record and the judgment and order of conviction is based on surmises and conjectures. It is submitted that the I.O., SI Badruddin Khan has clearly deposed that neither the revolver was recovered nor empty shell of the cartridge of the bullets fired were recovered. The blood stained clothes were also not seized and, thus, no CRL.A.NO.63-2001 Page 3 of 27 reliance can be placed on the story of the prosecution. Learned counsel for the appellant submits that in the case of Harpal Singh Vs. Devinder Singh reported at 1997 Crl. L.J. 3561, it has been held that : “If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would have provided a handle to the defence to attack the prosecution case.” 5. It is further contended that the Sessions Court has failed to appreciate the fact that PW-1, injured, had clearly admitted in his statement that he was conscious and in a shock for about 45 minutes after the incident, whereas his statement was recorded by the police on 02.01.2005. The delay would lead to show that the whole story has been concocted by the prosecution in collusion with the injured to falsely implicate the appellant in a criminal case. It is also submitted that a police post was approximately 100 yards away from the place of alleged incident and in case the injured was conscious for 45 minutes after the alleged incident, there was no reason to record the statement of PW-5 and the statement of PW-1 (victim) should have been recorded to register the FIR. It is submitted that the statement of the injured should have been recorded at the time of his admission in the hospital by the I.O. Further since the injured has categorically deposed that Lala Ram, Bachu Singh, Raju and Rakesh were present at the spot, there was no reason for the I.O. to only record the statement of PW-5, Rakesh Kumar. Counsel for the appellane further submits that even the Doctor, PW-7, deposed that he never opined with respect to the nature of CRL.A.NO.63-2001 Page 4 of 27 injuries, the presence or absence of the bullet in the body of the injured. 6. It is further contended that PW-5, Rakesh Kumar, at whose instance the FIR was registered has become hostile whereas he is the only alleged eye-witness to the incident. PW-5 has deposed in Court that he was never present at the spot and had gone to the market to purchase spare parts and that the occurrence did not take place in his presence. PW-5 has also denied having made any statement to the police and rather stated that the police had obtained his signatures on some blank papers in the hospital. Thus it is argued that the prosecution has been unable to prove its case. It is further contended that the statement of PW-3, Devender Grover, who is the brother-in-law of the deceased is unreliable and cannot be trusted being an interested witness and further his conduct is questionable and would show that instead of accompanying the injured to the hospital, he left the spot to make a telephone call to the wife of the injured. 7. It is also argued that there was no provocation, motive or intention to commit the offence and the story of the prosecution cannot be relied upon as there is nothing on record to show that there was prior enmity or motive to commit the offence. 8. Learned counsel for the appellant has relied upon the case of State of Punjab Vs. Bhajan Singh, reported at 1975 Crl.L.J. 282 in support of his plea that in criminal prosecution mere suspicion by itself cannot take the place of proof to warrant a finding of guilt of the appellant. CRL.A.NO.63-2001 Page 5 of 27 9. It is contended that there were material contradictions in the evidence of the prosecution and, thus, the same cannot be relied upon. Learned counsel has labored strenuously to buttress his argument that the learned Sessions Court had failed to consider his arguments as to why the statement of the injured was not recorded when he was conscious. 10. Mr. O.P. Saxena, learned counsel for the State, per contra, submits that the State has been able to establish their case beyond any shadow of doubt and which stands corroborated by the statement of the eye-witness, PW-3, Devender Grower; the statement of the injured PW-1; and the medical evidence. Thus the appeal is liable to be dismissed as such. 11. In this case, prosecution has examined nine witnesses, however, no evidence was led by the defence. The victim, Subhash Madan, PW-1 in his evidence has stated that he is running an automobile workshop and has a civil dispute pending with his landlady – Smt.Rattan Devi and several civil cases are also pending between them at Tis Hazari Courts. He further deposed that on 25.12.1994 at about 7:15 p.m. he was sitting at his shop when appellant, Devi Dayal @ Raju, the grandson of the landlady came and asked him to come outside. He thereafter whipped out a country made revolver from his shirt and fired a shot at his chest and thereafter he ran away from the spot. The servant of Subhash Madan i.e. Lala Ram and others Bachu Singh and Raju, were present at the shop. Subhash Madan was taken to the hospital by his neighbour‟s servant Mahender and his servant, Bachhu Singh. This witness also deposed that the father CRL.A.NO.63-2001 Page 6 of 27 of the appellant was notorious and a bad character in the area, who had since died, and had also threatened him to vacate the shop. During cross-examination, this witness has stated that he became unconscious after 45 minutes at his shop and therefore he could not tell as to who took him to the hospital. He further stated that there was a police post infront of Blue Bells School near Jamrudpur, which is about 100 yards from his shop and Police did not come to his shop till he was conscious. He also stated that he regained consciousness in the hospital on 1.1.1995. S.I. Badrudin came to the hospital on 2.1.1995 and recorded his statement. He further deposed that bullet was seized by the doctor in the hospital. His wearing apparels were also taken by the doctor, but sweater with the hole was kept by him and which is still in his possession. 12. PW-2, Smt. Laxmi Madan, wife of the victim in her statement has reiterated that her husband is running an automobile workshop and Smt.Rattan Devi is the owner / landlady of the shop, civil litigation is pending between Smt.Rattan Devi and her husband regarding the shop. She has further deposed that Smt.Rattan Devi used to collect the rent and subsequently she had refused to accept the rent and her husband started depositing the rent in Court. On 25.12.1994 at about 7:15 or 7:30 p.m. one servant came to her house and informed that her husband has been injured by Raju, who is the grandson of the landlady, Rattan Devi. During cross-examination, she stated the name of the servant who informed her, as Rakesh. When she reached the shop, her husband had been taken to the hospital. CRL.A.NO.63-2001 Page 7 of 27 13. The statement of PW-3, Davender Grover, is reproduced below “In the year 1994, I used to reside in house No.628/D, Govind Puri. On 25/12/1994, at about 6 p.m. I went to the shop of my Sandu – Subhash Madan at Jamrudpur. He runs an automobile shop under the name and style of Madan Automobiles. Subhash was sitting in a chair inside the shop. Five/ six boys were working in the shop. At about 7 or 7:15 p.m. the accused present in the court today came to the shop of accused Subhash Madan. (The witness has pointed out towards accused Devi Dayal alias Raju present in the Court). I heard the voice of a gun-shot. The accused was having a country made revolver in his hand. He ran away from the shop. At that time, I was standing out of the shop. I went inside the shop and found that Subhash Madan had sustained gun injury in his chest. Some mechanics removed him to the hospital.” 14. In his statement PW-4, Constable Kirpal Singh has deposed that on 25.12.1994 he was posted as a constable at the Police Station Greater Kailash. He had gone to AIIMS Hospital and found one Madan was admitted at the hospital after sustaining a bullet injury. He was declared unfit for statement by the doctor on duty. 15. PW-5, Rakesh Kumar, is the person at whose instance the FIR was registered. In his statement before the Court he has denied that the occurrence took place in his presence. He has also denied that his statement was recorded by the police. Since he had resiled from his statement made under section 161 Cr.P.C. CRL.A.NO.63-2001 Page 8 of 27 he was allowed to be cross-examined by the learned Public Prosecutor. In his cross-examination he deposed that he knows the appellant, who was present in the Court. He also correctly called the name of the appellant, as Raju (the grandson of the landlady of Subhash Madan). On being shown his statement Ex.PW-5/1, he identified his signatures at point „A‟, however, he denied that the statement was recorded by the police at his instance or that he signed it after knowing its contents. He further deposed that he did not state to the Police that on 25.12.1994 at about 7:15 p.m. Subhash Madan, Raju alias Manjum Ali, Lala Ram and he were sitting in the shop and in the meanwhile landlord‟s son, Raju, who was known to him came there. He was then confronted with the portion of the statement Ex.PW-5/1, where it was so recorded. He denied the suggestion that Raju fired a shot in the chest of Subhash Madan with the weapon and that thereafter Raju ran away. This witness was confronted with the portion of his statement where it had been so recorded. 16. PW-7, Dr. Sujoy Pal, has deposed that on 25.12.1994, he had examined Subhash Madan, who was brought to the hospital by one Rajinder Kumar with the alleged history of gun-shot injury on his chest. Subhash Madan was complaining of severe chest pain and having difficulty in breathing. On examination, he found Subhash Madan conscious but he had no recordable blood pressure and had a very feeble pulse. He further deposed that ante-wound of the gun shot was on the left side of the chest in the third inter-coastal space in the para-sternal region and no CRL.A.NO.63-2001 Page 9 of 27 exit wound could be identified. On auscultation, no heart sounds could be appreciated. The injury caused was a gun shot injury and this witness labelled it as dangerous. He has further deposed that in this connection the M.L.C. is Ex.P.W-7/1 which is in his handwriting and bears his signatures at point –A and the same is correct. On 25.12.1994 at 8:30 p.m., the patient was declared by him as unfit for statement. Endorsement in this regard is Ex.P.W. 7/2 which is in his handwriting and bears his signatures at point-A. In his cross-examination, PW-7, did not deny the suggestion that in the MLC he had not opined whether the injury was dangerous / simple/ grievous. He further stated that this was because he referred the patient for further opinion to senior resident of Cardio-thorasic and vascular surgery department. 17. PW-8, ASI Lal Chand has deposed that on 23.1.1995 he was posted as ASI in the Police Station Greater Kailash-I. S.I. Badrudin was earlier investigating into the case and on 23.1.1995 the investigation of the case was handed over to him. PW-8, deposed that he had formally arrested the appellant in this case as he was already in custody in another case and he got production warrants issued from the court. On interrogation the appellant made a disclosure statement that he can get the Katta recovered from the riverbed of Jamuna near Okhla where he had thrown the Katta. The appellant had taken him to the alleged place, but nothing was recovered as a lot of junk was lying there. 18. PW-9, S.I. Badrudin Khan has deposed that on 25.12.1994 he was posted at Greater Kailash Police Station as a S.I.. On receipt CRL.A.NO.63-2001 Page 10 of 27 of D.D. No.17-A he went to AIIMS along with constable Kirpal Singh, where he found Subhash Madan admitted in the hospital. He moved an application Ex.PW-9/2 for obtaining opinion of the Doctor regarding fitness of Subhash Madan for making the statement. The Doctor declared him unfit vide his endorsement Ex.PW-7/2. He recorded the statement of Rakesh Kumar Ex.PW- 5/1 and made an endorsement thereon Ex.PW-9/3 and sent it to the police station for registration of the case. The FIR Ex.PW-9/4 was registered in the police station and he further came to the place of occurrence at village Jamrudpur along with Rakesh. He further deposed that the rough site plan Ex.PW-9/5 was prepared on the pointing out of Rakesh. This witness further deposed that he made an application dated 26.12.1994 Ex.PW-9/6 for recording of statement of the victim, who was declared to be unfit by the doctor from time to time and the endorsement were made at points „A‟ and „B‟ on Ex.PW-9/6. On 28.12.1994 he again moved an application Ex.PW-9/7 to find out the condition of the victim, Subhash Madan, however, the doctor opined vide endorsement at point „A‟ of Ex.PW-9/7 that patient was unfit for making any statement. This witness further deposed that on 30.12.1994 he again moved an application Ex.PW-9/8 to the doctor, the opinion made by the doctor is at point „A‟ on Ex.PW- 9/8. However, ultimately victim, Subhash Madan, was declared fit for making statement on 2.1.1995 and the endorsement to this effect was made by the doctor at point „A‟ on Ex.PW-9/9. Therefore, the statement of the victim was recorded. CRL.A.NO.63-2001 Page 11 of 27 19. The statement of the appellant was recorded under section 313 Cr.P.C.. In his statement the appellant stated that he had been falsely implicated in the matter. 20. The arguments of learned counsel for the appellant can be summarized as under: (i) The appellant has been falsely implicated in this case and the statement of the victim is unreliable. (ii) As per the statement of the victim, he was conscious for about 45 minutes after the incident, and his statement was neither recorded by the IO nor the doctor and statement was only recorded on 2.1.1995. Thus there is unexplained delay in recording the statement of the victim. (iii) The conduct of PW-3, Devender Grover is questionable in asmuch as, after the incident, instead of taking his brother-in-law to the hospital, he ran away from the spot to call the wife of the injured. The statement of PW-3 cannot be relied upon. Moreover, PW-3 is unreliable as he is an interested witness. (iv) The only eye witness i.e. Rakesh Kumar, is a hostile witness and no other eye witness was examined by the prosecution. (v) There was no motive for the commission of the crime. (vi) Neither the weapon of offence nor empty cartridges were recovered. Further the blood stained clothes of the victim were also not seized by the prosecution. CRL.A.NO.63-2001 Page 12 of 27 21. I have heard learned counsel for both the parties, analysed the material on record and given my thoughtful consideration to the matter. 22. The incident in the present case pertains to 25.12.1994. PW-1 (victim) has deposed that on 25.12.1994, at about 7:15 p.m., he was sitting at his shop when appellant Devi Dayal alias Raju (grandson of his landlady Rattan Devi) came there and dared him to come out of his shop. The appellant then whipped out a country made revolver from his shirt and fired a shot in the chest of the victim and the appellant ran away from the spot. Thereafter the victim was taken to the hospital by Mahender, servant of his neighbour and his own servant, Bachhu Singh. 23. It has been strenuously argued before me by the learned counsel for the appellant that the case of the prosecution is false and that no reliance should be placed on the version of the victim. It has been pointed out before me that as per the version of the victim, he was conscious for about 45 minutes after having received a gun-shot injury. It is further submitted that there was no reason for the investigating authority to wait till 2.1.1995 to record the statement of the victim and that there is unexplained delay in recording the statement of the victim. The statement of the victim was not also recorded by the Doctor. 24. PW-7, Dr.Sujoy Pal, Dept. of Surgery, AIIMS New Delhi, has deposed as to the nature of the injury suffered by the victim. The same is reproduced as under: “On 25.12.1994, I examined Subhash Madan s/o Madan Lal, r/o shop no. B-134/1, Jamrudpur, New Delhi, who was brought to the hospital by one Rajinder Kumar with the alleged history of CRL.A.NO.63-2001 Page 13 of 27 gun-shot injury on his chest and was complaining of severe chest pain with difficulty in breathing. On examination I found that he was conscious but had no recordable blood pressure and very feeble pulse. The ante- wound of the gun shot was on the left sideof the chest in the third inter-coastal space in the para-sternal region. No exit wound could be identified. On ascultation, no heart sounds could be appreciated. The injury caused was a gun shot injury and I labelled it as dangerous.” 25. Having regard to the testimony of PW-7, Dr. Sujoy Pal, AIIMS, In my considered opinion, the argument of the counsel for the appellant that there is unexplained delay in recording the statement of the victim lacks merit. Merely because a patient is conscious, it does not automatically imply that the patient is in a fit condition to give his statement. It is pertinent to note that the doctor has given a categoric finding that although PW-1, victim was conscious but the victim had no recordable blood pressure, had a feeble pulse, and on ascultation, no heart sounds could be appreciated. PW-7 has further deposed that at about 8:30 p.m., the patient was declared to be unfit to give any statement and an endorsement to this effect was made as Ex. PW 7/2. In view of the opinion given by the doctor, PW-7 as to the seriousness of the injury received by the victim, it can be safely said that PW-1, victim was not in a fit condition to have given a statement on 25.12.1994. Evidence of PW-9, S.I. Badrudin Khan, shows that he made repeated applications to the doctor seeking permission to record the statement of the victim, however, the same were turned down and time and again the victim was declared to be unfit to make any statement. As per the evidence of PW-9, he moved the first application Ex.PW-9/2 on 25.12.1994, however, CRL.A.NO.63-2001 Page 14 of 27 the doctor declared the victim, Subhash Madan to be unfit to make a statement. The endorsement of the doctor is Ex.PW-7/2. Another application Ex.PW-9/6, was made to the doctor on 26.12.1994, on which date also the doctor declared the victim, Subhash Madan unfit for making statement. Similar endorsements were made by the doctor at points „A‟ and „B‟ on Ex.PW-9/6. Another application Ex.PW-9/7 was made by S.I. Badrudin Khan on 28.12.1994, however, vide endorsement at point „A‟ on Ex.PW-9/7, doctor declared the patient to be unfit for statement. Same remained the position on 30.12.1994 when S.I. Badrudin Khan moved another application Ex.PW-9/8. The evidence of PW-9, S.I. Badrudin Khan and the endorsements made by the doctor would show that the victim, Subhash Madan was unfit to make any statement from 25.12.1994 up to 1.1.1995. It was only on 2.1.1995 when his statement could be recorded. Thus to also say that the police post was approximately 100 yards away from the place of alleged incident, and the statement of the victim should have been recorded at the time of the incident or soon thereafter bears no weight as the victim was unfit to make a statement. Even otherwise also, no police personnel came at the spot of the incident before the victim was removed to the hospital. In the light of the above discussion, I find no force in the submission of learned counsel for the appellant that there is any unexplained delay in recording of the statement of the victim, Subhash Madan. 26. It would be relevant to note that the victim has not only identified the appellant in his examination-in-chief but has also CRL.A.NO.63-2001 Page 15 of 27 withstood the incisive cross-examination. To say that the victim had fired on himself so as to falsely implicate the appellant also has no force. It is hard to believe that the victim would fire upon himself, that too on the chest area and endanger his own life, simply to falsely implicate the appellant. I find the statement of the victim to be trustworthy and reliable and the same finds corroboration from the statement of PW-3, Devender