* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON :
21. t October, 2013 DECIDED ON :
19. h November, 2013 + CRL.A. 473/2000 ANIL TANEJA & ANR. ..... Appellants Through : Mr.K.B.Andley, Sr.Advocate with Mr.M.L.Yadav, Mr.Lokesh Chandra & Mr.M.Shamikh, Advocates. VERSUS STATE OF DELHI Through : ..... Respondent Mr.Lovkesh Sawhney, APP. CORAM: MR. JUSTICE S.P.GARG S.P.GARG, J.
1. Anil Taneja (A-1) and Madan Lal (A-2) challenge their conviction in case FIR No.256/1998 registered at PS Moti Nagar in Sessions Case No.112/1998. By a judgment dated 17th July, 2000 passed by learned Additional Sessions Judgment, they were held guilty under Sections 304 and 323 IPC respectively. A-1, in addition, was convicted under Section 27 Arms Act. By an order dated 19.07.2000, A-1 was awarded various prison terms with fine while A-2 was released on probation. The prosecution case emerged out of the record is as under:- 2. On 26.06.1998 at about 12.30 a.m. at shop No.26-27, Subzi Market, Moti Nagar, an altercation ensued among the appellants and Munna for allowing Shyam Sunder to gamble at their shop. In the said quarrel, A-2 injured Munna by inflicting a danda blow on his head and on his exhortation, A-1 fired shots from the licenced revolver at Munna with an intention to murder him but the target missed and it hit Guruswamy standing nearby and caused his death. During the course of investigation, A-1 and A-2 were arrested. Post-mortem examination of the body was conducted. The crime weapons i.e. revolver and danda were recovered. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was submitted against both the appellants for committing offences under Section 302/307/34 IPC. By an order dated 18.02.1999 they were charged for committing offences under Section 304/323 IPC. A-1 was also charged under Section 27 Arms. Act. The prosecution relied on the evidence of 20 witnesses. In their 313 statements, the appellants denied their complicity in the crime and claimed that they were victims at the hands of PW-3 (Jagdish Lal), who was running a gambling den in the area and encouraged Shyam Sunder to gamble there. When they objected to him (PW-3 Jagdish Lal) for spoiling laid and assaulted by him and his companions when they were returning after closing their shop. They also attempted to rob their revolver and in the scuffle, firing took place. They were taken to the hospital in injured condition but the police did not lodge their complaint. After considering all these, as well as the submissions of the parties, the Trial Court by the impugned judgment held A-1 perpetrator of the crime under Section 304 Part I IPC and 27 Arms Act whereas A-2 was held guilty only under Section 323 IPC. There is no challenge by the State against A-2’s acquittal under Section 304 IPC.
3. I have heard the learned counsel for the parties and have examined the record. Shri K.B.Andley, learned senior counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell in grave error in convicting the appellants for the offence which was never intended to be committed by them. The appellants had no animosity with Guruswami to cause his death by firing at him. The occurrence was accidental in nature. The injuries sustained by the appellants on their bodies were not explained. It is relevant to note that PW-4 (Munna) did not opt to support the prosecution and completely turned hostile. PW-3 (Jagdish Lal) and PW-5 (Subhash) are unreliable witnesses as they were running the gambling den and had prior animosity with the appellants. He adopted alternative argument to take lenient view and release A-1 for the period already spent by him in custody. The submissions made on behalf of the appellants were strongly resisted on behalf of the State by learned Additional Public Prosecutor who urged that the Trial Court had held that nothing had been elucidated by the defence from the evidence of PW-3 (Jagdish) and PW-5 (Subhash) which could cause the evidence of the said witnesses to be disbelieved. The impugned judgment is based on proper and fair appraisal of the evidence and needs no interference.
4. Homicidal death of Guruswami who succumbed to the injuries caused to him at the spot and was declared brought dead on arrival at the hospital is not under challenge. PW-11 (Dr.K.K.Kumra) proved MLC (Ex.PW-11/B) prepared by Dr. Ravinder Kumar on 26.06.1998. PW-19 (Dr.Komal Singh), autopsy surgeon, proved the postmortem examination report (Ex.PW-19/A) where the cause of death was given as hemorrhagic shock due to penetration of bullet on both lungs. The injury was sufficient in the ordinary course of nature to cause death. On external examination following injuries were found on the body:(i) One wound of 1.5 cm X05cm present on the right side of the arm near axilla. (ii) One wound of 0.7 c.m. x 0.7 c.m. circular in shape black ring present around it. It was 10.1 c.m. from the left nipple above and lateral. PW-4 (Munna) admitted in the cross-examination by learned Additional Public Prosecutor that Guruswami died as a result of fire shot. PW-3 (Jagdish Lal) and PW-5 (Subhash), eye witnesses, have proved his homicidal death.
5. It is true that the appellants had no grudge or grievance against Guruswami to cause injuries to him. The prosecution case is that A-1 fired at Munna by his revolver and when the target missed, it hit Guruswami who was working nearby and caused his instant death. Apparently, ingredients of Section 301 IPC are attracted in this case. In Rajbir Singh Vs. State of U.P. and Anr. AIR2006SC1963scope of Section 301 IPC as examined and explained in Shankarlal Kachaabhai and Ors. Vs. The State of Gujrat 1965 Cri LJ266was reiterated by Supreme Court :
“……It embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive. Under the section if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under Section 301 is deemed to have hit C with the intention to kill him. What is to be noticed is that to invoke Section 301 of the Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C………” In the instant case, the fact that there was no intention to cause injury to Guruswami and he was accidently hit can make no difference as according to the prosecution version, A-1 intended to cause injuries by fire arm to PW-4 (Munna) in an attempt to kill him but as he (PW-4 Munna) ducked, it hit Guruswami. Though initially malice was focused on PW-4 (Munna), however, due to missing of the target, it caused Guruswami’s death and thus was a case of transfer of malice. The appellants, thus, cannot escape liability for causing Guruswami’s death simply because it was never intended.
6. Crucial testimony to infer the guilt of the appellants is that of PW-3 (Jagdish Lal) who in his deposition before the court, attributed and assigned specific role to them in the incident and implicated A-1 to have fired thrice by the fire-arm in his possession at Munna on the exhortation of his father (A-2). Munna escaped the fire shot by sheer chance and Guruswami who worked at a dosa shop was hit on the chest and died. A-2 had caused injuries to Munna on head by a danda. examination, the witness admitted his involvement in criminal cases but denied that he was responsible for allowing Shyam Sunder, A-2’s younger brother to gamble at his shop. He explained that gambling was going on the pavement in front of Delar’s shop. He denied the suggestion that they were running a gambling den or that family members of Shyam Sunder had complained to them. He further denied that when the accused were returning from the shop, they were assaulted and injured with blunt and sharp edged weapons. Perusal of the statement of this witness reveals that his presence at the spot has not been denied. The appellants did not offer any explanation as to how and under what circumstances, the licenced revolver in A-1’s possession came into motion and three shots were fired through it. The appellants did not claim that they had fired shots in the exercise of their legal right of private defence. They did not lodge any complaint against any assailants for the alleged injuries caused to them. It is also unclear as to at whom the fire shots were aimed at or that the assailants were armed with any weapon. Negativing this plea, Trial Court observed in para 33 “Now coming to the plea of self defence, having gone through the MLCs of each of the two accused, this court finds their version of having been assaulted to be a figment of their wild imagination. There has been no attempt on the part of the police at glossing over injuries of either of the two accused. The injuries sustained by them are such, as were quite natural in the circumstances, created by the accused themselves and have to be regarded as trivial in the given circumstances. The accused do not say specifically which particular person assaulted either of them and by what mode. The plea of firing in self defence has to be negatived. Firstly, there does not appear to be any plausibility matchless proof in their contentions that they were the victim of assault. Instead both of them are proved to be the aggressors. The self professed misconceived right of private defence does not arise at all in the given circumstance. Such a right did not enure in the first place against Munna or PW-3 or any other unnamed and unidentified person and the question of such non-existing right extending to the deceased Guru-Swamy just does not arise. The contention of the learned counsel appears humorously pathetic, to say the least. The evidential parameters before the court do not admit of even a remote possibility much less a reasonable apprehension of the enormity of being hurt justifying an exercise of right of private defence. In the absence of proof of such an apprehension the question of looking into the question whether the right was exceeded to or not would not arise. Of course, in pure legalistic terms if a right would have enured against Munna or Pw-3 or Pw-5, the same would have been available even qua any innocent person like the poor Guruswamy, deceased.
7. PW-5 (Subhash) another eye-witness corroborated PW-3’s version in its entirety without any major variation. He also named A-1 to have fired at Munna who escaped but Guruswami became target and died. In the cross-examination, no material contradictions could be elicited to disbelieve his presence at the spot. Both PWs 3 and 5 had no prior animosity to falsely implicate the appellants in the incident. Merely because PW-3 had criminal antecedents and was involved in some criminal cases, it does not discredit the version given by him before the court, in the absence of any material discrepancies or contradictions. In fact, in their 313 statements, the appellants have admitted the firing incident but were unable to offer reasonable justification for the use of licenced fire-arm thrice. No specific plea of right of private defence was taken during trial and they were even unable to prove if they were justified to fire with the licenced revolver on unarmed individual(s) or that the exercise of right for private defence was reasonable and permissible in law. Initial confrontation had taken place with PW-4 (Munna) over allowing Shyam Sunder to gamble at PW-3’s shop. In the said quarrel, A1 fired at Munna. Apparently, A-1’s intention was to eliminate Munna by repeatedly firing at him by the fire-arm in his possession. Post-mortem examination report reveals that Guruswami sustained two fatal wounds on his vital organs. One shot was fired in the air. It was good luck of Munna that he escaped but Guruswami became the victim. It is true that PW-4 (Munna) turned hostile and did not for some reasons opted to support the prosecution. He took complete somersault; denied appellants’ involvement in the incident and introduced a new story of sustaining injuries in an altercation with a rickshawala without naming him. He admitted his signatures on Ex.PW-4/A which became the basis of First Information Report. Apparently PW-4 resiled from the previous statement made to the police implicating the appellants for extraneous reasons. Exclusion of his evidence won’t affect the cogent and reliable testimonies of PWs-3 and 5 coupled with CFSL report. There is no legal hurdle in convicting a person on the sole testimony of a single evidence if his version is clear and reliable, for the principle is that the evidence has to be weighed and not counted. PW-4 cannot be permitted to sabotage the prosecution case. All the relevant contentions of the appellants were considered and dealt with in the impugned judgment with valid reasons. The judgment is based upon fair and proper appraisal of evidence and requires no interference. The findings of the Trial Court on conviction are affirmed. Undisputedly, Rigorous Imprisonment for ten years awarded to A-1 is excessive and needs modification. A-1’s nominal roll reveals that he remained in custody for three years, two months and two days besides earning remission for three months and 14 days as on 07.10.2002. He was not involved in any criminal case and had clean antecedents. His overall jail conduct was satisfactory. The incident pertains to the year 1998. After his enlargement on bail vide order dated 09.01.2002, his involvement in any such criminal case did not surface. He was granted interim bail to take BA (BDP) examination at Indira Gandhi National Open University vide order dated 27.11.2001. The firing incident occurred when he and his father had gone to challenge PW-3 (Jagdish Lal) and his employee (PW-4 Munna) for encouraging Shayam Sunder, their close relative to gamble at their place. The compensation amount of `3 lacs awarded by the Trial Court has since been deposited. Considering all these mitigating circumstances, the sentence order is modified and the substantive sentence of A-1 is reduced from ten years to six years under Section 304 Part I IPC. Other terms and conditions of the sentence order are left undisturbed.
8. The appeal stands disposed of in the above terms. A-1 is directed to surrender before the Trial Court on 26.11.2013 to serve the remaining period of sentence. The Registry shall transmit the Trial Court records forthwith. (S.P.GARG) JUDGE November 19, 2013 sa