Desh Raj vs Kewal Krishan And Ors.
2009 Latest Caselaw 4777 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on:16th November ,2009
                       Judgment Delivered on: 23rd November, 2009


+                      CRL.REV.P.544/2001


        DESH RAJ                                   ..... Petitioner
                             Through:   Mr.Ashok Soni, Advocate

                             Versus

        KEWAL KRISHAN AND ORS.                     ..... Respondents
                       Through:         Mr.Rajesh Mahajan, Advocate
                                        for R-1 to R-3.
                                        Mr.Manoj Ohari, APP for the
                                        State/R-4.
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 Digest?
                                                         Yes

INDERMEET KAUR, J.

1. FIR No.6/92 had been registered at police station Hauz Qazi

under Sections 452/308/34 of the IPC against Durga Prasad, Kewal

Krishan Sharma and Jaspal Singh on the complaint of Desh Raj.

Desh Raj is the petitioner before this Court.

2. Briefly stated the facts of the case:-

That on the night intervening 3-4.1.1992 when Desh Raj was

sleeping in his room; at about 1.00 AM a noise was heard. Tara

Chand father of PW-1 and his brother Jugesh PW-2 were sleeping in

the courtyard outside. PW-1 saw Kewal Krishan accompanied by

Jaspal and Durga Prasad standing near his cot. Kewal Krishan was

armed with a danda; Jaspal was carrying an iron rod, Durga Prasad

had a club/thapi. PW-2 also woke up; altercation took place

between the accused persons and the complainant and his brother.

Kewal Krishan extorted the complainant by saying that "AAJ HAM

TEENO KA KAM TAMAM KAR DENGE". Durga Prasad caught hold of

Desh Raj and asked Kewal Krishan to beat him upon which Kewal

Krishan and Jaspal Singh started beating Desh Rah. Jaspal hit Desh

Raj with iron rod on his head; Kewal Krishan hit him with a danda.

3. The victim suffered a head injury; he was removed to the

LNJP hospital by Vinod Kumar PW-4 a neighbour in the vicinity. He

was medically examined vide MLC Ex.PW-10/A. One CLW

measuring 5 cm x 2 cm long on the scalp was noted; no other

apparent external injury was visible. MLC shows that the patient

had been admitted in the hospital on 4.1.1992 at about 1.20 AM

and had been discharged on 8.1.1992. Nature of the injury had

been opined to be blunt.

4. On the complaint Ex. PW-1/A of PW-1 the formal FIR Ex.PW-

3/B was registered. Investigation was marked to ASI K.L.Sharma

PW-11 who along with Const.Vijender PW-9 reached the spot;

photographer H.Ct.Subhash Chand PW-5 took three photographs

Ex.PW-5/D to Ex.PW-5/F of the scene of occurrence; site plan was

prepared.

5. The aforestated evidence collected and proved by the

prosecution had been examined by the Trial Court. The Trial Court

vide judgment dated 30.5.2001 had convicted the accused for the

offence under Section 323 read with Section 34 of the IPC; they had

been acquitted of the charges levelled against them under Sections

308/452 of the IPC.

6. Trial Court had held that the evidence adduced had not

shown that there was any trespass committed by the accused

persons; no such evidence was forthcoming that the accused had

entered the room which was in the occupation of Desh Raj or his

family; version of Desh Raj being categorical that when he came

out of the room he had seen the accused persons in the courtyard.

Accordingly acquittal under sections 452 of the IPC had followed.

The court had further convicted the accused under Section 323 of

the IPC and not for the offence under Section 308 of the IPC which

postulates the ingredients of an attempt to commit culpable

homicide. It has been held that only a single blow had been

suffered by the victim. The size and the dimension of the blow had

been taken into consideration. The act of the accused persons in

inflicting a single blow had revealed the mense rea not to commit

culpable homicide not amounting to murder; it could not have been

said that the accused persons knew that by their act of inflicting a

single blow injury to Desh Raj they could have caused his death.

Conviction under Section 323 of the IPC had thus followed.

7. Vide order of sentence dated 30.5.2001, accused had been

sentenced to undergo probation for a period of one year on their

furnishing a personal bond in the sum of Rs.5000/- with one surety

of like amount and also to keep peace and good behavior; the

accused were also directed to pay a sum of Rs.2000/-each as fine

to the complainant Desh Raj.

8. This revision petition has been preferred by the complainant

i.e. Desh Raj. State has admittedly not filed any appeal.

9. Scope of the revisional powers of this Court are limited and

are distinct from the powers of an appellate Court. In a revision

petition, it is only the correctness, legality or the propriety of any

finding, sentence or order of an inferior Court which can become

the subject matter of a challenge before a higher Court. Revisional

jurisdiction when invoked by a private complainant against an order

of acquittal ought not to be exercised lightly and should be

exercised only in those exceptional cases where the interest of

public justice requires interference for the correction of a manifest

illegality or of a gross miscarriage of justice. Powers of a

revisional Court are also distinct from the powers of an Appellate

Court. The Court of revision would not ordinarily reassess evidence

and interfere merely because the view of the Trial Court as to the

evidence does not commend to itself; because that would be

exercising the power of appeal in the guise of revision wherein a

case where right of appeal has been curtailed by the legislature;

Chaganti Kataiah v. Coginani Venkateshwara Rao AIR 1973 SC

1274.

10. A question of a sentence is also a matter of discretion and it

is well settled that when discretion has been properly exercised

along accepted judicial lines, a superior court should not interfere

to the detriment of an accused person except for very strong

reasons which must be disclosed on the face of the judgment; Bed

Raj v. State of Uttar Pradesh AIR 1955 SC 778.

11. It is in this backdrop that this revision petition has to be

decided.

12. Desh Raj PW-1 is the complainant. He has deposed that on

4.1.1992 at about 1.00 AM while he was sleeping he heard a

thumping sound; he came out into the courtyard where his brother

Jugesh Kumar was sleeping. Durga Prasad, Kewal Krishan and

Jaspal were standing in the courtyard. PW-1 has reiterated on oath

the averments which had been made in his complaint Ex.PW-1/A.

He has admitted that i.e. PW-1 had an old enmity with Durga

Prasad who was their neighbour and they used to quarrel over

petty issues. He has further deposed that he remained in the

hospital for 11 days. This statement appears to be incorrect. The

MLC as discussed supra shows that he has been discharged after

four days i.e on 8.1.1992.

13. PW-1 has deposed that Kewal Krishan had given him a danda

blow and Jaspal Singh had given a blow with an iron rod on his

head. This version also appears to be incorrect as MLC Ex. PW-

10/A as discussed supra has noted only one injury on the head i.e.

a CLW of 5 cm x 2 cm long; no other apparent external injury was

found visible.

14. PW-2 was the brother of PW-1; he has corroborated his

version.

15. In the statement of the accused recorded under Section 313

of the Cr. P.C., they have all stated that they are innocent. Kewal

Krishan was a tenant in the house of the complainant Desh Raj and

on the fateful day when he was coming back with his servant Jaspal

he struck against his cot and fell down; Tara Chand father of PW-1

had extorted his son and they had given beatings to the accused

persons; accused have been falsely implicated. Relevant would it

be to state that this defence found mention in the cross-

examination of PW-1, PW-2 and also other related witnesses of the

prosecution. That is a far back as 5.7.95 when PW-1 was first cross-

examined.

16. One witness has been produced in defence. He was record

clerk of LNJP Hospital and he had produced MLC Ex. PW-10/DA and

Ex.PW-10/DB of accused Jaspal and accused Kewal Krishan showing

their admission in the hospital on 4.1.1992 at 2.00 AM and 3.00 AM

respectively. These documents had established that the accused

Jaspal and Kewal Krishan had also received injuries on the same

day. It was thus an altercation which had ended in a scuffle

between the parties.

17. The Trial Court had relied upon unimpeached testimony of

PW-1 and PW-2 and had placed reliance upon it. At the same time

the intention of the accused persons had been gathered from the

medical record which had been produced i.e. the medical record of

the victim Desh Raj and also medical record of Jaspal and Kewal

Krishan i.e. two of the three accused persons. Ex. PW-10/DA which

is the MLC of Jaspal has shown minor abrasions on his hands and

the left side of his face; Ex. PW-10/DB MLC of Kewal Krishan

revealed abrasions and contusion on his right leg and on a portion

of the face.

18. On the other hand the victim Desh Raj had suffered one

injury i.e. a CAW 5 cm x 2cm long on his scalp; no other injury was

noted; had been declared fit for the statement on the same day

when his statement Ex.PW-1/A was recorded by the Investigating

Officer which has become the subject matter of the complaint.

Incident was reported at about 1.10 AM on 4.1.1992 and FIR was

registered at 2.25 AM within a span of one hour.

19. Court had gathered the intention and knowledge on the part

of the accused person from this oral and ocular versions of PW-1

and Pw-2 as also the manner in which the assault had taken place;

the part of the body on which the injury had been caused. The fact

that the only one injury had been suffered by the victim; the fact

that all the three accused persons were armed with three separate

weapons i.e. a danda, an iron rod and a thapi yet the injury was a

single blunt blow on the scalp of Desh Raj; had the accused persons

the criminal intention to cause death they could have caused the

death and injuries would have been in the plural and would have

been on other vital parts of the body as well. The single simple

blow injury suffered by Desh Raj had led the Court to conclude that

the offence made out against the accused persons is one under

Section 323 of the IPC.

20. Counsel for the petitioner has placed reliance upon Sunil

Kumar v. NCT of Delhi & Ors. 1999 [1] JCC [SC] 92 to support his

submission that to make out offence under Section 308 of the IPC

the nature of the injury i.e. whether it was grievous or simple

deserves to be given a back seat. This judgment was on an appeal

against the order of the High Court whereby the entire charge

sheet under Section 308/323/34 of the IPC had been quashed on

the ground that the offence under Section 323/34 of the IPC had

been investigated by the police without the prior permission of the

magistrate and the said permission not having been obtained the

entire charge sheet stood quashed. It was at the stage of framing

of the charge itself that the charge sheet has been quashed; it was

in this context that the aforenoted observation highlighted by the

learned counsel for the petitioner had been made by the Supreme

Court. The facts of that case would not have any application to the

instant case.

21. This court is also of the view that the accused persons are

guilty of the offence punishable under Section 323 of the IPC only

and the ingredients of Section 308 of the IPC are clearly not made

out. Nature of the injury suffered by a victim may not always be

true test to determine the offence committed by him, yet the ocular

versions of PW-1 and PW-2 as also the medical record clearly

establish that the accused persons had been rightly convicted for

the offence under Section 323 of the IPC. Conviction of the accused

persons for a graver offence is not called for.

22. While awarding the sentence of probation the Court had

taken into account that the accused persons are not previous

convicts; there was a bone of contention between them; both

Durga Prasad and Desh Raj residing in the same building; there

used to be frequent quarrels between them on petty matters;

accused persons already having suffered incarceration for about 10

to 11 days; they had been granted a sympathetic consideration and

had been released on probation.

23. It is apparent that the Court had acted on the lines of the

reformative and retributive purpose on sentencing and had given

due regard to the age, character and the antecedents of the

offender. The power to grant probation is in the discretion of the

Court which is to be exercised according to the circumstances of

each case. This discretion has been exercised fairly and justly in

the background of the facts of each case; same has not been

exercised arbitrarily or capriciously and calls for no interference.

24. In Lekh Raj vs. State AIR 1960 Cr.LJ 1234, it had been held

that the power to grant probation is to be exercised in those cases

where the offenders even the youthful ones without being persons

of depraved character, may succumb to sudden temptation or

uncontrollable an impulse, or have done a thoughtless rather than

a criminal act, or were at the time of the offence acting under the

influence of others. These considerations had weighed in the mind

of the Court to award the sentence of probation and rightly so.

25. Revision petition is without any merit; dismissed.

(INDERMEET KAUR) JUDGE 23rd November, 2009 nandan