Imran & Others vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 5596 Del

*	IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

				Judgment delivered on: December 08, 2010

+ 	CRIMINAL APPEAL NO.335/2007

 	IMRAN & OTHERS					....APPELLANTS
Through:	Mr. M.K. Vashisht, Advocate

				Versus

STATE(N.C.T. OF DELHI)				.....RESPONDENT

Through: Ms. Fizani Husain, APP

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is preferred against the impugned judgment dated 23rd April, 2007 in case FIR No. 444/05, P.S. Chandni Mahal under Sections 452/307/34 IPC as also the consequent order on sentence dated 24th April, 2007 whereby the appellant Imran was convicted for the offences punishable under Section 326 IPC and Section 452 read with Section 34 IPC and other two appellants Irfan and Rehan were convicted for the offences punishable under Section 324/34 IPC and Section 452 read with Section 34 IPC and sentenced accordingly.

2. Briefly put, case of the prosecution is that on 18th December, 2005, DD No. 5A was recorded at P.S. Chandni Mahal at 1.30 a.m. on the receipt of an information regarding admission of Mohd. Irshad at J.P.N. Hospital in injured condition. Copy of DD report was assigned to SI Ishwar Singh, who along with Constable Shammi Lal went to the hospital and collected the MLCs of two injured persons namely Lukman (PW1) and Irshad (PW2). Lukman was declared fit for statement. SI Ishwar Singh recorded his statement Ex.PW1/A. In his statement to the I.O., complainant Lukman stated that on the night intervening 17th 18th December, 2005, he was present at his meat shop No.1119, Pratap Ganj, his cousin Irshad who had come to meet him. At around 12.45 a.m., appellant Imran came to his shop and demanded a sum of ` 200/- for purchasing liquor. He declined to lend money to Imran, upon which, Imran asked him about Asif and he told that Asif was not there. Imran got angry and left the shop after threatening him. Five/ten minutes later, Imran, along with his brother Irfan and Rehan returned to the shop. Imran was carrying a knife. Irfan was carrying an iron 'punch' and Rehan was carrying an iron rod. They all, after entering the shop, started beating him and his cousin Irshad(PW1). Imran tried to stab Irshad on his neck but the knife blow fell on his cheek. Thereafter, accused Imran attacked him and inflicted an injury near his left ear. He was hit by the appellant Irfan with the "punch" and Rehan hit him and Irshad with iron rod. Thereafter, all three of them ran away and he and his cousin Irshad were removed to the hospital.

3. Investigating Officer appended his endorsement Ex.PW9/A on the aforesaid statement of the complainant and sent it to the police station for registration of the case. On the basis of said 'rukka', formal FIR under Section 452/304/34 IPC was registered against the appellants.

4. As per the MLC, injured Lukman sustained two incised wounds 6 X 8 c.m. on parietal and occipital region with profused bleeding. As per the MLC of Irshad, he sustained one cut injury of 12 X 14 c.m. on the left side of the face extending from eye to nose and said injury was reported to be grievous in nature.

5. Accused Imran was arrested on 18th December, 2005 and he made a disclosure statement and pursuant to the disclosure statement, the weapon offence i.e. the knife was recovered from Ramlila Ground near the wall. Appellants Irfan and Rehan were arrested on 24th December, 2005 but no recovery was effected from them.

6. During the course of the investigation, clothes of the two injured persons (Lukman and Irshad) were collected and seized by the I.O. Exhibits were sent to FSL. Statements of witnesses were recorded and on conclusion of investigation, charge sheet against the appellants was filed under Section 307/452/34 IPC.

7. The appellants were charged for the offences punishable under Section 307 IPC read with Section 34 IPC and Section 452 read with Section 34 IPC. All the three accused/appellants pleaded not guilty to the charge and claimed to be tried.

8. In order to bring home the guilt of the appellants, prosecution has examined 11 witnesses. Material witnesses, however, are injured Lukman (PW1), injured Mohd. Irshad (PW2) and Nazir (PW4), who also is an eye witness and took both the injured to the hospital. PW3 Dr. Virender Kumar prepared the MLCs of both the injured persons and PW5 Dr. Nikhil had given his opinion regarding the nature of injury suffered by Lukman. Rest of the witnesses are the police officials, including the Investigating Officer, who assisted in the investigation at one stage or the other.

9. Before adverting to the submissions made on behalf of the appellants, it would be appropriate to have a look on testimony of the injured persons as well as eye witness Nazir (PW4).

10. PW1 Lukman, in his testimony, has fully supported the case of the prosecution. He stated that on the fateful night in December, 2005 at around 12.45 am, he was present in his meat shop i.e. 1119, Pratap Ganj along with his cousin Md. Irshad, who had come to his shop at 10.30 p.m. Appellant Imran came to his shop and demanded mutton. He refused to give mutton to Imran as he was in habit of failing to make payment. Thereafter, Imran left the shop but returned to his shop after about 40 minutes armed with a knife. He was accompanied by the other appellants Irfan and Rehan, who were carrying a 'belcha' and 'iron punch' respectively. There were two more boys with them. The appellants and said two boys picked up a quarrel with him and Irshad and started beating both of them. In the process, he sustained injuries on left side of his temple and on the back of his head. Those injuries were caused to him as a result of blow given by 'belcha' and iron punch. He claimed that his cousin Irshad sustained stab injury below the left eye from his nose to parital region, for which injury, he was given 22 stitches. Police was called at the spot. According to this witness, the appellants remained at the spot till arrival of the police and accused Imran was apprehended by the police at the spot, but the other two appellants managed to flee away. He further claimed that his statement Ex.PW1/A was recorded by the I.O. at LNJP Hospital. In the cross examination, the witness stated that he was hit from behind and he could not see who had hit him. He also claimed that he was told the name of the assailants by the public persons.

11. PW2 Md. Irshad has also deposed to almost similar effect in his examination-in-chief. However, in his cross examination by learned counsel for the accused, he admitted the suggestion that it was dark at the time of incident and there was no light and that names of accused persons were told to him by the other persons present there. He also admitted the suggestion that he could not see the persons who assaulted him or Lukman. When re-examined by learned APP, he supported the case of the prosecution.

12. PW4 Nazir is brother-in-law of injured Lukman. He stated that he was employed at the meat shop of Lukman. On 18th December, 2005 at about 1.00 a.m., he along with Lukman and Irshad was present at the meat shop. Appellant Imran came there and demanded ` 200/- from Lukman. When Lukman refused to oblige, Imran asked for address of Asif. Lukman showed ignorance of address of Asif and on this, Imran got annoyed and started abusing him. Imran left the shop and returned 10/20 minutes later along with the other two appellants. At that time, appellant Imran was carrying a knife and appellant Irfan was having an iron 'panch' and Rehan was holding an iron rod. All the three appellants, after entering the shop, started beating Lukman and Irshad. As a consequence, Lukman received two head injuries and Irshad received a cut injury on his face because of stabbing with knife. He claimed that he took both injured persons to the hospital. In the cross examination, witness denied the suggestion that injured Lukman had borrowed some money from the father of the appellants, which loan was paid back and that Lukman has falsely implicated them with a view to avoid payment of loan amount.

13. The appellants were examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against them. They have denied the prosecution evidence in its entirety. Defence taken by the appellants Irfan and Rehan is that they are innocent and they have been falsely implicated at the behest of public persons. Appellant Irfan claimed that he did not visit the shop of Lukman on the fateful night. Appellant Rehan in his statement claimed that at the time of incident, he was sleeping in his house. Neither of the appellants opted to lead evidence in defence.

14. Although this appeal was filed jointly by the appellants Imran, Irfan and Rehan, the appellant Imran appeared in person on 30th August, 2010 and admitted his guilt and expressed his wish not to press the appeal against conviction and sentence awarded to him. Accordingly, his appeal was dismissed as not pressed. Now, we are left with the appeal of the appellants Irfan and Rehan.

15. Learned Sh. M.K.Vashist, Advocate appearing on behalf of the appellants Irfan and Rehan has submitted that they are innocent and they have been falsely implicated merely on suspicion. He has contended that the Trial Court has failed to appreciate that the eye-witnesses examined in this case, namely PW1 Lukman, PW2 Irshad and PW4 Nazir are members of the same family and their testimonies suffer from various infirmities.

16. Dilating on the argument, it is firstly submitted on behalf of the appellants that both PW1 Lukman and PW2 Irshad, in their respective cross-examinations have stated that they could not see the persons who inflicted injuries on their person. He pointed out that PW2 Irshad even admitted that the incident took place in the mid-night and there was no light at the spot. From this, it can be safely inferred that the injured persons could not have seen the faces of the assailants. As regards PW4 Nazir, learned counsel argued that his presence at the spot is highly doubtful for the reason that his story regarding start of incident is contradictory to the version of injured Lukman. Learned counsel pointed out that as per the statement of PW1 Lukman, before the actual incident, appellant Imran had visited the shop for buying meat and since Lukman refused to give meat without payment, the incident was triggered whereas according to PW4 Nazir, Imran had demanded ` 200/- from Lukman and when Lukman refused to give him money, Imran got angry and started abusing Lukman and this eventually triggered the episode, in which Lukman and Irshad sustained injuries. In view of the aforesaid circumstances, learned counsel for the appellants has urged that the testimony of the prosecution witnesses is suspect and the appellants are, therefore, entitled to benefit of doubt.

17. Learned APP, on the other hand, has contended that both the injured, namely Lukman and Irshad, have fully supported the case of the prosecution and their testimony gets corroboration from the testimony of PW4 Nazir as well as their MLCs Ex.PW3/A & Ex.PW3/B, therefore, there is no reason to suspect them. Learned APP further submitted that the fact that PW1 and PW2 had sustained injuries in the incident is sufficient assurance that they are telling the truth about the incident, particularly when there is no reason as to why they would falsely implicate the appellants. Learned APP also submitted that the appellants have no defence. She pointed out that no defence was suggested to PW1 Lukman and PW2 Irshad in their cross-examination. The defence of the appellant surfaced for the first time during cross examination of PW4 Nazir when a suggestion was put to him that Lukman has falsely implicated the appellants because he had borrowed money from the father of the appellants and he wanted to avoid repayment of money. This defence, however, has not been taken by either of the appellants in their statements under Section 313 Cr.P.C., which is a clear indication that the defence suggested to PW4 Nazir was an afterthought and taken at the spur of moment.

18. I have considered the rival contentions. On careful perusal of the testimony of injured persons/witnesses Md. Lukman and Irshad as well as the eye witness PW4 Nazir, it is apparent that all of them have fully supported the case of the prosecution on all material aspects of the case. There is no reason to suspect their testimony because there is nothing on record to suggest that either of these witnesses had any enmity or motive to falsely implicate the appellants. As regards the contention of learned counsel for the appellants that PW1 and PW2 have stated in their cross examination that they could not see the assailants, it is suffice to say that that part of the testimony only relates to the identity of the persons who caused them injury. Otherwise, their testimony is categoric to the effect that after the accused Imran left the shop earlier in the night, he came along with his two brothers namely Irfan and Rehan and all three of them were armed and they started beating the complainant and Mohd. Irshad. There is no reason to disbelieve said version and from the aforesaid evidence, common intention on the part of the appellants to commit trespass in the shop of the complainant Lukman and to assault them is apparent. As regards the contradiction in the testimony of witnesses pointed out about the cause of occurrence, it is natural that since there is a gap of about six months between the incident and recording of statement of the witnesses, therefore, contradiction can be attributed to failure of memory due to lapse of time. Otherwise also, the contradiction is not so material to cast a doubt on the correctness of testimony of the witnesses. Therefore, I find no infirmity in the impugned judgment of conviction which may call for interference by this court in appeal.

19. Learned counsel for the appellants further submitted that the sentence of imprisonment awarded to the appellants Irfan and Rehan is too harsh and he urged for reduction of sentence of imprisonment to the term already undergone by the appellants Rehan and Irfan in custody.

20. From the above, it is apparent that the offence committed by the appellants is grave inasmuch as they, after arming themselves, trespassed into the shop of Lukman with the intention to cause injury to him as well as Irshad and gave effect to their intention. I find no reason to interfere with the sentence awarded to the appellants which, to my mind, is proportionate to the gravity of offence committed by the appellants.

21. Result of above discussion is that the appeal is devoid of merits, it is accordingly dismissed.

22. Appellant No.2 Irfan is on bail. He be taken into custody to undergo the remaining period of his sentence.

23. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE DECEMBER 08, 2010 akb