* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No.255/1999
% Reserved on: 27th October, 2009
Date of Decision: 20th November, 2009
# NARESH KUMAR ..... Appellant
! Through: Ms. D.K. Mathur, Adv.
versus
$ THE STATE ..... Respondent
^ Through: Mr. R.N. Vats, APP
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: V.K. JAIN, J.
1. These is an appeal against the judgment dated 5 th May, 1999 and the Order on Sentence dated 6th May, 1999, whereby the appellant Naresh was convicted under Sections 186/332/353 IPC read with Section 34 thereof as well as Crl.A.No.255/1999 Page 1 of 8 under Section 333 of IPC. The appellant was sentenced to undergo RI for four years and a fine of Rs. 2,000/- or to undergo SI for two months, in default under Section 333 IPC. He was sentenced to undergo RI for two years and to pay a fine of Rs. 1,000/- or to undergo SI for one month, in default under Section 332 IPC. He was further sentenced to undergo RI for one year and to pay a fine of Rs.500/- or to undergo SI for 15 days, in default under Section 353 IPC. He was also sentenced to pay a fine of Rs.500/- or to undergo SI for 15 days, in default under Section 186 IPC.
2. The case of the prosecution as set out in the FIR lodged by SI Jeewan Kumar is that on 17th June, 1992 when the complainant accompanied by Constable Digvijay Nath, Constable Ramesh Chand and Constable Nawab Singh, reached the house of Raj Kumar in village Himayun Pur, the appellant Naresh met them. On enquiry, the appellant told him that Raj Kumar was not at home. In the meantime, Raj Kumar was seen by the police officials inside the house. When the complainant called him, Raj Kumar started abusing the police officials and instigated others to beat them. Thereupon, Raj Kumar, Naresh, Anil and Azad Crl.A.No.255/1999 Page 2 of 8 attacked the police party and threw bricks and stones on them. Naresh brought a danda from inside the house and started attacking the police party with that danda. Other police officials reached there and arrested Anil, Naresh and Azad whereas Raj Kumar managed to escape.
3. The complainant, SI Jeewan Kumar, came in the witness box as PW-3 and stated that when they reached house No. 2 in village Himayun Pur and made enquiry about Raju, he was told that Raju was not present in the house. He, however, saw him in the house and loudly called him. Thereupon, Raju came out abusing them and asked Anil, Azad and his mother to beat them. Naresh brought a danda from inside the house, whereas all other persons were having stones in their hands which they started pelting on them. In the meantime, the police officials reached there and apprehended all the accused except Raju. According to him, injuries were sustained by him, Constable Nawab Singh, Constable Ramesh Chand as well as Constable Digvijay Nath.
4. PW-2 Constable Nawab Singh and PW-4 Constable Ramesh Chand have corroborated the deposition of the complainant and have stated that Naresh gave danda blows Crl.A.No.255/1999 Page 3 of 8 to them whereas other accused pelted stones and bricks at the police party.
5. PW-8 Constable Digvijay Nath has, stated that all the accused pelted stones at the police party. According to him, he sustained injuries on his right hand and his tooth. PW-10 SI Rajbir Singh has stated that on 17 th June, 1992, he alongwith some other police officials went to Himayun Pur to attend the call received vide DD No. 20 and found the accused persons pelting stones on SI Jeewan Kumar, Constable Digvijay Nath, Constable Nawab Singh and Constable Ramesh Chand. He saw Naresh armed with a danda. All the accused except Raj Kumar were apprehended and the broken pieces of stones and bricks were seized by him.
6. PW-1 Mahinder Singh has stated that on 17 th June, 1992 when he was passing from in front of the house of the accused persons, he saw three police officials being beaten by Anil, Azad and Naresh. He informed Police Station Vinay Nagar, whereupon the police reached there and arrested Anil, Azad and Naresh.
Crl.A.No.255/1999 Page 4 of 8
7. In his statement under Section 313 Cr.P.C., the appellant denied the allegations against him and stated that on 17th June, 1992, four police officials came to his house and enquired about Raju who was not at home. When they told the police officials that Raju was not at home, they started abusing them. There was minor altercation whereupon they were beaten by the police officials.
8. Admittedly, only one police official, namely, Constable Digvijay Nath suffered grievous hurt in this incident. He suffered fracture of his right wrist. Constable Digvijay Nath, when he came in the witness box as PW-8, did not say a word about use of danda by the appellant. According to him, when Raju was called by SI Jeewan Kumar, all the accused pelted stones at the police party which escaped towards Krishna Nagar to rescue himself from the accused persons. When the injured himself does not say a word even about use of danda, it is difficult to accept that the fracture on his right wrist was caused by none other than the appellant. If all the accused were pelting stones, as stated by PW-8, injury on his right hand as well as on his teeth could have been caused by the brick or stone used by any of them. Crl.A.No.255/1999 Page 5 of 8 No witness has said that the appellant Naresh gave a danda blow on the right wrist of Constable Digvijay Nath. No danda was seized by the police from the spot though the appellant Naresh was apprehended there and then and, therefore, had no opportunity to throw away the danda. The IO claims to have seen a danda with the appellant. It that was so, the danda would have been seized by him, as he does not say that the danda was thrown away by the appellant, on seeing them. In any case, there is no evidence that the appellant Naresh had thrown away the danda which he was carrying with him. In fact, the testimony of PW-8 Constable Digvijay Nath finds corroboration from the deposition of PW-1 Mahinder Singh who also did not allege use of danda by any of the accused persons. This witness was cross-examined by the learned APP, but no suggestion was given to him that the appellant Naresh was carrying a danda in his hand or that he had assaulted the police officials with a danda. Constable Digvijay Nath was also not cross-examined by the learned APP though he did not depose about use of danda or even carrying of danda by the appellant Naresh. In fact, neither Constable Nawab Singh nor SI Jeewan Kumar has stated that Crl.A.No.255/1999 Page 6 of 8 Naresh has given danda blow on the right wrist or on teeth of Constable Digvijay Nath. No one saw the appellant Naresh giving a danda blow on the right side wrist or on the teeth of Digvijay Nath.
9. In these circumstances, I am of the considered view that the prosecution has failed to prove that grievous hurt to Constable Digvijay Nath was caused by the appellant Naresh. Consequently, the offence under Section 333 of the Indian Penal Code does not stand proved against them.
10. As regards conviction of the appellant under Section 186/353/332 of IPC, the same was not assailed before me on merits and the only request made by the learned counsel for the appellant was that benefit of probation may be extended to the appellant.
11. Since the incident took place more than 17 years ago and this appeal itself pending for more than 10 years, this is an appropriate case for extending the benefit of probation to the appellant. Hence, while setting aside conviction of the appellant u/s 333 of IPC, but, maintaining his conviction under Section 186/353/332 of IPC read with Section 34 IPC thereof, it is directed the appellant be released Crl.A.No.255/1999 Page 7 of 8 on furnishing a bond for peace and good conduct in the sum of Rs.10,000/- with one surety of he like amount, for a period of two years, to the satisfaction of the Trial Court. The bond shall be furnished within a week from today. In default of furnishing the bond, the appellant shall undergo the sentence awarded to him by the Trial Court under Section 186/353/332 of IPC read with Section 34 IPC thereof.
(V.K.JAIN) JUDGE NOVEMBER 20, 2009 bg Crl.A.No.255/1999 Page 8 of 8