Tajuddin @ Nanhe vs N.C.T. Of Delhi
2009 Latest Caselaw 5330 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment Reserved on: 16thDecember, 2009
%                   Judgment Delivered on: 21stDecember, 2009

+                        CRL.A.8/2008

       TAJUDDIN @ NANHE                             ..... Appellant
                    Through:         Mr.Rajesh Mahajan, Advocate/
                                     Amicus Curiae.

                   Versus


       N.C.T. OF DELHI                         .... Respondent
                         Through:    Mr.Manoj Ohri, APP for State.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the     Yes
        Digest?

INDERMEET KAUR, J.

1. Appellant along with three other co-accused persons had

been convicted on 21.11.2007 for an offence under Section 324/34

of the Indian Penal Code (IPC). Vide order of sentence dated

5.12.2007 he had been sentenced to undergo RI for two years and

to pay a fine of Rs.1000/-, in default of payment of fine to undergo

SI for two months. This judgment is the subject matter of the

present appeal.

2. On 23.12.2000, Yoginder Singh PW-8 had gone to meet his

brother Virender Singh. At about 7-7.15 PM while he was

returning home the appellant Tajuddin @ Nanhe along with the

other co-accused Gobind Ram, Dinesh Chand and Mahesh Chand

accosted him; they beat him and threatened to kill him; Dinesh

Chand and Mahesh Chand caught hold of his hands and arms.

Babu @ Gobind Ram inflicted knife blows on his neck and head;

the present appellant Tajuddin @ Nanhe caught hold of him by his

waist and hit him with a rod on his head; PW-8 was given kick and

fist blows; he fell down on the ground; he was again given knife

blows by Gobind Ram @ Babu. On raising alarm all the accused

persons fled away from the spot. PW-8 was removed to the

residence of his sister in an injured condition.

3. It was this statement of PW-8 Ex.PW-8/A which had formed

the basis of rukka which was taken by Const.Suresh Kumar PW-7

and the FIR was recorded by SI Musafir Shah PW-5 Ex.PW-5/A.

Investigation was marked to ASI A.P.Singh who along with Const.

Virender Kumar PW-2 reached the spot.

4. Version of the prosecution is hinged on the testimony of PW-

8. He has corroborated his version on oath as is so stated by him

in his complaint Ex.PW-8/A. He was subjected to a lengthy cross-

examination; he has admitted that he was known to Anita who was

the sister of A-1 Gobind Ram and with whom he i.e. PW-8 had

visiting terms. PW-8 has denied the suggestion that he had

kidnapped Anita or that she was taken to Kanpur by him; PW-8

however admitted that Anita was known to him; he denied the

suggestion that he had any relationship or love affair with Anita.

5. Meena was the sister of PW-8. She has come into the

witness box as PW-9; she has corroborated the version of PW-8 to

the extent that her brother PW-8 had been brought to her

residence in an injured condition; it was on her call that the police

had reached the spot and removed her injured brother to the

hospital.

6. Const. Raja Rao PW-1 was the duty constable at AIIMS at the

relevant time MLC of PW-8 has been exhibited through the

testimony of Dr.Shalini Giridhar PW-3 who had identified the

signatures of Dr.Amit Goyal who had prepared the said document.

Ex.PW-3/A shows

(i) Seven stab wounds suffered by the victim i.e. of the

dimension of 1-2 cm on the back left buttock;

(ii) 5 cm incised wound on the left side of the face and

(iii) 1 cm incised wound on the left eye brow.

7. The medical evidence corroborates the ocular version of

PW-8; PW-8 has deposed that he had been given repeated knife

blows on his hip.

8. On behalf of the appellant it has been submitted that this

was a clear case of revenge; appellant including the three other

co-accused persons have been falsely implicated at the behest of

the complainant as the complainant had relations with Anita, the

sister of A-1 Gobind Ram and he had been accused of kidnapping

her; to vent out his frustration and grievance he has falsely

implicated the appellant and the other co-accused in this case.

9. This submission advanced by the learned counsel for the

appellant has been dealt with by the Trial Court. Motive is a

double edged weapon; it can be used in either way, either to the

advantage of the prosecution or to its disadvantage. In the instant

case, although PW-8 had been cross-examined by the learned

defence counsel that the accused persons have been falsely

implicated by the complainant due to his enmity with Gobind Ram

as he had been accused of kidnapping their sister Anita yet this

has been categorically denied by PW-8. DW-1 and DW-2 have come

into the witness box to substantiate the submission that Anita had

been kidnapped by Yoginder and taken to Kanpur but neither has

given any date, month or year; in their cross-examination both the

witnesses have admitted that they are neighbours of the accused

and they have no personal knowledge of the case; their

testimonies were rightly disbelieved by the Trial Court.

10. On the other hand, the prosecution has been able to

establish that the relations between the accused and the

complainant had become strained because of the friendship of

Anita, with the complainant and so much so that on the fateful day

when the complainant was going to the house of his sister he was

accosted by the accused, A-1 to A-3 being the brothers of Anita

and A-4 i.e. the appellant being their friend and all of them in

furtherance of their common intention had at the point of knife

beaten him and given him fist and kick blows; the weapon of

offence used by the appellant was also a rod. This has come in the

ocular version of PW-8 and he has not been shaken in his cross-

examination. Rod has however not been recovered.

11. Section 324 of the IPC postulates the penalty for causing

hurt by a dangerous weapon; knife and rod are both dangerous

weapons; MLC has evidenced seven stab wounds on the left

buttock of the victim besides two incised wounds on his left side of

his face and left eye brow respectively. Conviction of the appellant

calls for interference.

12. The penalty imposed for such an offence is punishment

which may extend to three years or fine or both. The intention of

the legislature can be gathered from the fact that this offence

postulates a punishment of either an imprisonment for a period

which may extend to three years or a fine. In deserving cases, the

accused may be let off with a fine alone.

13. While imposing the sentence the Trial Court had recorded

the fact that the appellant is not a previous convict and is in fact

the only earning member of his family. Nominal roll of the

appellant shows that as on the date of grant of bail, the appellant

had suffered an incarceration of about 20 days of the period of

sentence imposed upon him.

14. This offence relates to the year 2000 i.e. nine years from

today. Offence is also compoundable. This further throws light on

the intention of the legislature on the sentencing policy for such an

offence which has to be kept in mind while imposing the sentence.

In the view of this court, the sentence imposed upon the appellant

i.e. a sentence of RI two years is on the higher side; appellant was

a friend of A-1 to A-3, the brothers of Anita had a friendship with

the complainant and which had ultimately become the cause of

revenge leading the accused persons to commit the offence in the

manner in which it was committed.

15. In this background, the sentence of the appellant is modified

and RI two years is reduced to RI three months; the fine of

Rs.1000/- is however enhanced to Rs.10,000/- of which Rs.9,000/-

will be paid to the victim, in default of payment of fine the

appellant will undergo SI for two months. Bail bond and surety

bond of the appellant are cancelled; he be taken into judicial

custody.

16. Appeal is partly allowed and with the abovestated

modifications it is disposed of.

(INDERMEET KAUR) JUDGE 21st December, 2009 rb