Naresh Kumar vs The State
2009 Latest Caselaw 4750 Del

*     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

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

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

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.

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.

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

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

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