Delhi High Court

Pokhar Singh & Anr. vs State on 22 December, 2009

Author: V. K. Jain

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Date of Order: DECEMBER 22, 2009


+     CRL.A. 727-728/2006

#     Pokhar Singh & Anr.                      ..... Appellants
!                    Through:      Ms. Charu Verma, Advocate
                                  Amicus Curiae
                  versus

$     STATE                              ..... Respondent
^                      Through:    Mr. Amit Sharma, 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?         No

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

: V.K. JAIN, J. (ORAL)

1. This is an appeal against the judgment dated 22nd July, 2006

and Order on Sentence dated 24th July, 2006 whereby the

appellants were convicted under section 308 and 325 of the IPC

read with section 34 thereof and were sentenced to undergo RI

for four years each under section 308 of IPC and were further

sentenced to undergo RI for one year each and to pay a fine of

Rs.200/- each and in default to undergo RI for one month each

under section 325 of IPC.

2. The case of the prosecution is that the complainant Rekha

owed some money to her sister Seeta and that on 2nd November,

2003 at about 10.30 P.M. when her sister Seeta demanded that

money back, Shri Khem Singh, husband of the complainant,

promised to return the money by 10th November, 2003.

However, her brother-in-law Laxman and Pokhar Singh, nephew

of her brother-in-law started abusing and beating her husband

Khem Singh, insisting upon immediate repayment of the money

that had been taken by Rekha from her sister. When the

complainant tried to intervene Pokhar Singh held her husband

whereas Laxman picked up a 'saria' which was lying nearby and

gave a blow on the head of her husband Khem Singh. This is also

the case of the prosecution that Pokhar Singh also picked up

another 'saria' lying on the spot and gave a blow using that

'saria' on the right hand of the complainant.

3. The complainant Rekha came in the witness box as PW 1

and stated that husband of her sister Seeta demanded back the

amount of Rs.1500/- which she had borrowed from her, she

promised to return that amount by the 10th of the month.

Laxman and Pokhar Singh who were present, who are the brother

and nephew respectively of her brother-in-law, thereupon gave

beating to her husband with a 'saria'. According to the

complainant, she was hit on her hand, whereas her husband was

hit on his head.

4. PW 6 Khem Singh is the husband of the complainant. He

has corroborated the deposition of his wife and has stated that on

the day of the incident, Pokhar Singh caught hold of his hand and

dragged him outside the jhuggi. Both the accused attacked him

and gave beatings to him with saria. He was hit on his head.

When he raised alarm his wife Rekha also came out. He

thereafter became unconscious.

5. In their statements under section 313 of Cr.PC the

appellants denied the allegations against them. The appellant

Laxman stated that there was a dispute between his brother and

his brother-in-law and that is why he had been falsely implicated

in this case on account of that dispute. The appellant Pokhar

Singh claimed that he had no quarrel and he had been falsely

implicated.

6. As regards the injury caused to Khem Singh, the case of the

prosecution as set out in the FIR is that the appellant Pokhar

Singh had held him and while the appellant Laxman took up a

'saria' which was lying nearby and gave blow on his head,

however, when the complainant came in the witness box she did

not say that the appellant Pokhar Singh had held her husband

and a 'saria' blow was given to him by Laxman. As per her

deposition in the court, both the appellants gave beating to her

husband with a 'saria'. This is contrary to the version given in the

FIR. A perusal of the MLC of Khem Singh would show that he had

sustained only one wound over his left partial region. Since only

injury was given to Khem Singh, it could have been caused either

by Pokhar Singh or by Laxman and not by both of them. But, one

doesn't tell the Court, as to who had given saria blow to her and

who had given it to her husband.

7. Shri Khem Singh, husband of the complainant, when he

came in the witness box as PW 6, claimed that both the accused

attacked him and gave beating to him with a 'saria' and that he

was hit on his head. He also does not say that Pokhar Singh had

held him while 'saria' blow on his head was given by Laxman. He

does not tell the court as to who had caused injury on his head.

Thus, the prosecution has failed to prove as to which out of the

two appellants had given 'saria' blow on the head of injured

Khem Singh.

8. There is no evidence from which it may be inferred that

both the appellants shared a common intention to give 'saria'

blow on the head of Khem Singh. There is no allegation of

exhortation or some other overt act by one accused resulting in

giving of 'saria' blow by the other accused. Therefore, it cannot

be said that both the appellants shared a common intention to

give 'saria' blow on the head of Khem Singh. It would be

pertinent to mention here that admittedly 'saria' was picked up

from the place of incident and was not brought by either of the

appellants with them. In fact from the mere use of 'saria' by one

of the appellants cannot impute a common intention to the other

one to give 'saria' blow to Khem Singh, since there is no evidence

of one of them having aided or abetted in giving 'saria' blow or

having resulted in giving 'saria' blow to Khem Singh.

9. Therefore, the only inference which can be drawn from the

facts and circumstances proved by the prosecution is that both

the appellants shared a common intention to cause injuries to PW

6 Khem Singh and thereby committed offence under section 323

read with section 34 threreof.

10. Though the case of the prosecution is that it was the

appellant Pokhar Singh who had given 'saria' blow on the head of

the complainant Rekha. When the complainant came in the

witness box she did not tell the court as to who had hit her on

the hand. She simply stated that she was also hit on her hand

and received injuries. However, PW 6 Khem Singh during the

examination by learned Public Prosecutor admitted that the

appellant Khem Singh took a 'saria' from the spot and gave blow

on the hand of his wife Rekha.

11. As regards injury caused to PW 1 Rekha, the case of the

prosecution is that she sustained a fracture and, therefore,

grievous hurt was caused to her. A perusal of the MLC of PW 1

Rekha does bear an endorsement to the effect that as per the

opinion of the Radiologist there was fracture and, therefore, the

injury was grievous. But, the author of this endorsement has not

been produced in the witness box nor has any witness proved the

handwriting and/or signature of the person who made this

endorsement. No opinion of any Radiologist has been produced

by the prosecution to prove that Rekha had sustained fracture.

No Xray film of Rekha has been produced by the prosecution.

When Rekha came in the witness box, she did not claim that she

had sustained fracture.

12. Mere use of a saria would not convert an otherwise simple

hurt into grievous hurt, which has been defined under section 320

of the IPC as under:-

"Section 320. Grievous hurt. The following kinds of hurt only are designated as "grievous"

First. - Emasculation.

Secondly. - Permanent privation of the sight of either eye.

Thirdly- Permanent privation of the hearing of either ear.

Fourthly. - Privation of any member or joint.

Fifthly. -Destruction or permanent impairing of the powers of any member or joint.

Sixthly. - Permanent disfiguration of the head or face.

Seventhly. - Fracture or dislocation of a bone or tooth.

Eighthly. - Any hurt which endangers life or which

causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

13. The injury on the right hand of the complainant Rekha

cannot be said to be such an injury which endangers the life.

There is no evidence or even allegation that Rekha had to spent

20 days severe bodily pain or that she was unable to follow her

ordinary pursuits. Therefore, causing of grievous hurt is

otherwise not made out from giving saria blow on the hand of the

complainant Rekha.

14. In the facts and circumstances of the case, it cannot be

said that the prosecution has been able to prove any grievous

hurt to Rekha. From the facts and circumstances proved by the

prosecution, the only common intention which can be inferred to

the appellants is that they intended to cause hurt to Rekha.