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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
In the Matter of: Pramod Giri – Appellant
Versus
State of Delhi – Respondent
Crl. Appeal No. 286 of 2009
Decided On : 25-06-2021
Indian Penal Code, 1860 - Sections 308 r/w 34, 307 and 506 - Arms Act - Section 25 - Assault - Appeal against Conviction - Gunshot injury - Complainant said that appellant exhorted his brother to shoot him because he had taken away motorcycle of accused which had been financed by some agency - On being exhorted his brother took out a gun and fired a shot which missed (PW-1) - Complainant stated that when he started running, his brother fired for a second shot which hit PW-1 on his back. When PW-1 shouted, people started gathering and assailants ran away towards Chowk.
Finding of the Court:
Nothing has been brought on record to show that PW-1 would go to the extent of inflicting an injury on himself only to implicate accused. The appellant had the motive to cause harm to the victim and his family but it cannot be said that the injured PW-1 had any motive to somehow implicate the accused - PW-8/A- Dr. who had deposed that apart from entrance wound in back of PW-1, there was tattooing on the back of the right shoulder which supports case of prosecution that two shots were fired, one bruised to the shoulder of PW-1 and other hitting him on the back - plea of alibi must generally be supported by some corroborative evidence. The MLC report of the victim Ex. PW-8/A shows a bullet injury. There is a wound on back and charring around the skin of the wound - there is no reason to disbelieve PW-1, PW-3 and PW-11. There is no reason for complainant to implicate the appellant rather the appellant had a reason to assault the complainant - prosecution has proved the guilt of the accused beyond reasonable doubt.
Result: Appeal dismissed.
JUDGMENT :
SUBRAMONIUM PRASAD, J.
1. This appeal is directed against the judgment dated 08.04.2009 convicting the appellant of offence under Section 308 read with Section 34 IPC and order dated 13.04.2009 sentencing the appellant 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 for the offence punishable under Section 308 and 34 IPC.
2. The facts in brief leading to the present case are as follows:-
(b) SI Bhushan Azad (PW-12) along with Ct. Joginder (PW-10) and HC Amar Singh (PW-4) reached the spot. On reaching the spot, they were informed that one person has been injured who has been shifted to GTB hospital.
(c) PW-12, the I.O. along with Ct. Joginder (PW-10) went to the hospital. The MLC of the injured Manoj (PW-1) S/o Chander Kiran(PW-13) was collected. As per the MLC, Manoj (PW-1) received a gunshot injury. After being found fit for giving a statement, the statement of Manoj (PW-1) was recorded. PW-1 stated that on 21.09.2003 at 8:15 p.m. he was going with his uncle Surender (PW-11) on the 100 ft. road. His brother Rahul came there. He asked his brother Rahul to get some eatables and gave him Rs. 5/-. Rahul got them the eatables and left. PW-1 stated that when he and his uncle Surender were having the eatables, at that time one motorcycle stopped near them. There were three persons in the motorcycle namely, Pramod Giri, the appellant herein, Dinesh Giri (brother of the appellant) and one person who according to the complainant could be identified. The complainant said that Pramod Giri, the appellant herein exhorted his brother Dinesh Giri to shoot him because he had taken away the motorcycle of the accused which had been financed by some agency. On being exhorted Dinesh Giri took out a gun and fired a shot which missed Manoj (PW-1). The complainant stated that when he started running, Dinesh Giri fired for a second shot which hit PW-1 on his back. When PW-1 shouted, people started gathering and the assailants ran away towards Pari Chowk. It is stated that Rajinder (PW-3) brother of PW-1 brought him to the hospital. On the statement of PW-1, FIR No. 300/2003 was registered for offence under Section 307 read with Section 34 IPC. Investigation was conducted. During the investigation, it was stated by PW-13, Chander Kiran, father of PW-1 that accused Dinesh Giri (who passed away during the pendency of the trial) was threatening his son and had asked him to withdraw the case. On the basis of that statement offence under Section 506 IPC was added to the present case.
(d) The appellant was arrested on 26.09.2003. Dinesh Giri (since deceased) was arrested on 15.10.2003. Jitender who was identified as the third person on the motorcycle was absconding during the course of investigation. He was declared as proclaimed offender and later on arrested on 16.09.2006.
(e) Since Dinesh Giri passed away during the course of the trial the proceedings against Dinesh Giri were abated by order dated 21.07.2006. The case was committed to the Court of learned Sessions Judge. Charge under Section 307 and 34 IPC was framed against all the accused. The appellant pleaded that they are not guilty and claimed trial.
(f) To prove their case, prosecution examined 16 witnesses. Two witnesses were examined by the defence:
(i) PW-1, Manoj is the victim. He deposed that on 21.09.2003 he along with his maternal uncle Surender Kumar were present at 100 ft. road near Nathu Colony Fatak. PW-1 states that the accused persons came on a motorcycle, stopped the motocycle near them and started to abusing him. Accused Pramod Giri then exhorted his elder brother Dinesh Giri to shoot at him. Dinesh Giri then fired at PW-1 which misse
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