Rajesh Sharma @ Raju & Anr. vs State N.C.T. Of Delhi
2010 Latest Caselaw 5663 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              Crl. Appeal No. 707/2001

%                                           Reserved on: 2nd November, 2010

                                            Decided on: 13th December, 2010

Rajesh Sharma @ Raju & ANR.                                        ..... Appellants
                     Through:             Mr. B.S. Rana, Advocte
           versus

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

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Not necessary

2. To be referred to Reporter or not?                      Yes

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

MUKTA GUPTA, J.

1. By way of this appeal, the appellants who are father and son challenge

their conviction for commission of offence punishable under Section 308 read

with Section 34 IPC and the sentence of RI for three years to the Appellant No.2

and release on probation on furnishing a personal bond in the sum of `5,000/-

with one surety of the like amount for a period of three years to Appellant No.1

Rajesh, for causing injury to the complainant Naresh by brick which injury was

opined to be simple in nature.

2. Learned counsel for the appellants contends that the prosecution

examined four witnesses to the alleged incident i.e. PW1 Naresh the injured, his

mother PW2 Smt. Angoori and two independent witnesses PW3 Sanjay and

PW8 Jai Pal Singh. PW3 and PW8 have turned hostile and have not supported

the prosecution case at all. The case of prosecution as put forward on the basis

of the testimony of PW1 and PW2 is also full of material contradictions as

Naresh and Smt. Angoori in their statement before the police stated that Rajesh

caught hold of Naresh and Sat Narain hit brick on his head whereas both these

witnesses in their deposition before the court stated that Sat Narain caught hold

and Rajesh gave brick blow to Naresh. It is contended that such a contradiction

is a material contradiction and shakes the trustworthiness of the witnesses.

Thus, no conviction could have been based on such evidence. The X-ray Ex.

PW7/A shows no fracture and as per the MLC Ex. PW6/A, the injury is simple

blunt. Alternatively, relying on Ramesh and Ors vs. State, 2010 III AD (Crl.)

(DHC) 225, it is contended that such an injury is punishable for an offence

under Section 323 IPC and not under Section 308 IPC and thus, the appellant

No.2 be also granted probation or awarded a lesser sentence for offence

punishable under Section 323 IPC only.

3. Learned APP on the other hand contends that on the fateful day i.e., 8th

February, 1998, two incidents took place ; one in the afternoon and the other at

6:30/7.00 P.M. The appellants have been named in the ruqqa itself. The

testimony of the eye witnesses is corroborated by the MLC. It is contended that

for an offence punishable under Section 308 IPC the assault resulting in an

injury is not essential. Reliance is placed on Sunil Kumar vs. State 1999 (1) JCC

(SC) page 92 to canvass that simple injury on the person is not an evidence to

contend that no case punishable under Section 308 IPC is made out. PW1 is an

injured witness and his testimony cannot be discarded easily. The evidence of

PW1 and PW2 proves the prosecution case beyond reasonable doubt. It is thus

prayed that the appeal be dismissed.

4. I have heard learned counsel for the parties. As per the evidence of the

two witnesses examined in the court, two incidents took place; one at around 2

pm and the other around 7 pm. It is stated that at about 7 pm when the witness

Naresh Chand was opening the buffalos, accused Sat Narain caught hold of him

and accused Raju gave brick blow whereupon he fell unconscious. Both the

witnesses have been confronted with their statement before the police but they

are consistent and categorical that it was the appellant Sat Narain who caught

hold and Raju gave brick blow.

5. Certain omissions and improvements do not permit the court to take a

view that on these alleged contradictions the statement of the witness specially

an injured witness should be described to be an unreliable one. Unless the

testimony of the witness is shaken by contradicting him on material points or

there are other grounds to disbelieve the statement of the witness, it is not

proper to reject the testimony of the witness. Both the witnesses have sustained

the contravention on the basis of their statement before the police and

corroborate each other. The contention of the learned counsel for the appellants

that the testimonies of PW1 and PW3 suffer from material contradictions is

misconceived. Ordinarily it so happens that witnesses are overtaken by event.

The witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties therefore, cannot be expected to be

attuned to absorb the details and at time result in confusion as to the role played

as well.

6. The testimony of the two eye witnesses i.e. PW3 and PW 8 who have

turned hostile also suggests that a fight had ensued wherein both the appellants

were involved. The act of appellants is clearly premeditated. At 2.00 P.M. the

appellant No. 2 abused the injured PW1 and then when at 7.00 P.M. he was

opening the buffalos, appellant Sat Narain caught hold of him and appellant

Rajesh gave a brick blow on his head. The Appellants hit the injured with a

brick on the frontal region resulting in a 4 cm long contused lacerated wound

and also swelling and tenderness on the nose. Thus, the injured has been hit on

a vital part by a brick with premeditation.

7. I also find force in the contention of the learned APP that an injury has

resulted or not is immaterial for commission of an offence punishable under

Section 308 IPC. For the offence to be attracted the knowledge and intention of

the accused who have committed the said offence has been seen in Sunil Kumar

(supra) it was held:

"The view taken by the High Court is obviously erroneous because offence punishable under Section 308 I.P.C. postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 I.P.C. whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 I.P.C. Qualitatively, these offences are different."

8. I find no merit in the appeal. The appellant No.1 has rightly been granted

probation by the learned Trial Court in view his tender age. The appellant No.2

has been directed to undergo a sentence of Rigorous Imprisonment for three

years. The learned trial court held that the appellant Sat Narain being a Head

Constable in Delhi Police is not entitled to be released on probation. I find no

infirmity in the reasoning for not releasing the appellant No. 2 on probation.

However, as the incident is around 12 years old, it would serve the ends of

justice if the appellant Sat Narain is directed to undergo Rigorous Imprisonment

for a period of one year and to pay a compensation of `5,000/- to be paid to the

injured within four weeks.

9. The appeal is accordingly disposed of. List for compliance on 18th

January, 2011.

MUKTA GUPTA, J.

DECEMBER 13, 2010