 12 SCC 173.){kind=link}
The Delhi High Court has dismissed an appeal filed by a man against his conviction for the offence under Section 308 IPC (Attempt to commit culpable homicide) read with Section 34 IPC while stating that the prosecution has proved the guilt beyond reasonable doubt and no reason to disbelieve the prosecution witnesses.
The appellant was sentenced by the trial cCourt to undergo rigorous imprisonment for three years and six months and to pay a fine of Rs 3,000 and in default in the payment of fine the appellant was to undergo a further period of three months simple imprisonment.
While hearing this matter, Justice Subramonium Prased observed, “The fact that no independent witnesses joined or examined does not take away the credibility of the prosecution. It is well known that people shy away from becoming witnesses in court cases and the fact that nobody was prepared to come in the evidence would not lead to a conclusion that the prosecution has not proved his case.”
The Court has placed its reliance on the judgement and order passed by the Supreme Court in Ashok Kumar Chaudhary v. State of Bihar, (2008) 12 SCC 173 that has observed as under:-
“ it cannot be said that non-examination of public witness makes the case of the prosecution untrustworthy or that the courts below have committed any legal infirmity in relying upon the testimony of the injured witnesses. It is the quality and not the quantity of evidence which matters.”
The story of the prosecution is that the present appellant along with 2 other persons came to the victim’s home and fired 2 gunshots at him. One gunshot got missed and the 2nd hit victim on his back. At the sound of the gunshot, people gathered and the assailants ran away.
An FIR was being lodged and an investigation launched. After the investigation, all the three accused were arrested. The case was committed to the court of learned Sessions Judge. The charge under Section 307 and 34 IPC was framed against all the accused. The appellant pleaded that they are not guilty and claimed trial.
The trial court held that the prosecution has proved its case against the appellant herein for having intent and knowledge of attempting to commit culpable homicide not amounting to murder along with Dinesh Giri (since deceased) with the aid of Section 34 IPC.
Mohammad Shamikh, learned counsel for the appellant, contended that the complainant has a number of cases registered against him and also is a police informer. He said that it has come in evidence that about 10-12 persons were present at the time of incident and no effort has been made by the police to join any one of them as a witness. The victim’s brother brought him to hospital. After 10-12 days of treatment, the victim was discharged from the hospital.
He further contended that the MLC shows that there is a bullet injury and there is charring around the wound but no bullet has been found from the body of the victim or recovered even from the site. He also stated that the weapon has not been recovered and no blood has been found from the site.
It is argued that injury was self-inflicted only to implicate the appellant and the appellant is being implicated due to the enmity between PW-1 and the accused.
The counsel for the state, opposing the petitioner, contended that there is a bullet injury on the back of the PW-1 which can be seen in the MLC that an entrance wound of 1cm on the back in the lumbar region and tattooing of the skin around the wound red coloured. She further stated that there is also a small injury on the shoulder that supports the theory that two shots were fired, one shot would have scrapped the shoulder of PW-1 and second shot hit PW-1 on his back. She stated that the fact that the weapon was not recovered and that no bullet has been recovered either from the spot or from the body of the accused cannot lead to a conclusion that the wound was self-inflicted.
After going through all the facts presented and arguments mane by the parties, the Court was of the opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt and there is no reason to disbelieve PW-1, PW-3 and PW-11. There is no reason for the complainant to implicate the appellant rather the appellant had a reason to assault the complainant.
The Court has not found any interference in the impugned judgment. Accordingly, the appeal is dismissed and bail bonds of the appellant are cancelled and the appellant is directed to surrender within four weeks from today.
PRAMOD-GIRI-vs-state-of-nct