Roop Chand @ Lala vs State (Nct) Of Delhi
2010 Latest Caselaw 688 Del

*                     HIGH COURT OF DELHI : NEW DELHI

        Judgment reserved on : February 03, 2010
      Judgment pronounced on : February 08, 2010

+                            Crl. A. No. 23/2004

%       Roop Chand @ Lala                ...  Appellant
                 Through: Mr. Anurag Jain, Advocate

                                 versus

        State (NCT) of Delhi                ...   Respondent
                  Through: Mr. Amit Sharma, Additional
                             Public Prosecutor for the State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR


1.          Whether         the
            Reporters  of local
            papers    may    be
            allowed to see the
            judgment?
2.                                         No.
            To be referred         to
            Reporter or not?

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


SUNIL GAUR, J.

1. Prosecution of the Appellant for the offence under

Section 308 of Indian Penal Code resulted in his conviction

and the impugned order sentences him to rigorous

imprisonment for three years with fine of Rs.15,000/-.

Subject to this appeal, fifty percent of the fine has to go to

the injured (PW-2) as mandated by the trial court.

Crl. A. No. 23/2004 Page 1

2. The incident is of 28th January, 2003, which had taken

place in the evening, near the Bablu Barber Shop in D

Blcok of J.J. Colony, in Sector 7 of Dwarka, New Delhi. As

the prosecution story goes, upon refusal to pay a petty

debt of Rs.100/- there and then, injured (PW-2) was

slapped by the appellant/accused. When injured (PW-2)

proceeded to make a telephone call to his father, he was

attacked by the appellant/accused who came from behind

and had hit the injured (PW-2) with some sharpest weapon

on the left temple/head near his eye. Injured (PW-2) bled.

Police was informed and the injured (PW-2) was removed

to the hospital. Upon the statement of injured (PW-2), FIR

No. 27/03 under Section 324 of Indian Penal Code was

registered at Police Station Dwarka, New Delhi, after an

intervening period of two or three days, as the injured

(PW-2) because of this injury, was unable to make the

statement, due to swollen face. After obtaining the MLC

(Ex.PW-5/A), the offence was converted to one under

Section 308 of Indian Penal Code.

3. Appellant/accused was arrested in this case and after

being charge sheeted, he chose to claim trial for the

offence under Section 308 of Indian Penal Code. Trial of

this case was short one. Out of six witnesses examined at

trial, material ones are the injured (PW-2), Dr. R.K. Mishra

Crl. A. No. 23/2004 Page 2 (PW-5), who has proved the MLC (Ex.PW-5/A) of the injured

(PW-2) and the Investigating Officer (PW-6).

4. A specific stand was taken by the appellant/accused

before the trial court. Appellant/accused had specifically

asserted that a brawl had taken place between his father

and the injured (PW-2) over payment of money for the tea

taken by the injured (PW-2) at the shop of father of

appellant/accused. However, Appellant had denied his

presence at the place of incident and claimed that he has

been framed in this case. Appellant/accused goes further

with his story of his father telling him that injured (PW-2)

had collided with a lamp post and cable stripes and had

injured himself.

5. To support the aforesaid version, appellant/accused

had got his father (PW-1) examined in his defence.

However, the trial resulted in the conviction of the

Appellant which is assailed in this appeal.

6. At the hearing of this appeal, the same very

contentions which were made before the trial court have

been reiterated on behalf of the appellant/accused.

Counsel for the Appellant, instead of meeting the

reasoning of the trial court, had persisted with repeating

the same very submissions, i.e., about the delay of three

Crl. A. No. 23/2004 Page 3 days in recording the statement of the injured (PW-2), of

eye-witnesses being not examined and of father of

appellant/accused complaining to the police regarding this

incident. The last submission advanced was of injury being

simple in nature and the offence, if any, committed being

under Section 324 of Indian Penal Code and not under

Section 308 of Indian Penal Code.

7. Infact, there is no delay in reporting about the

incident. The statement of the injured (PW-2) could not be

recorded for two - three days, as the injured (PW-2) was

not able to speak because his face was swollen due to the

injury sustained in this incident. There is no worthwhile

cross-examination of the injured (PW-2) on this aspect and

so benefit accrues to the appellant/accused. Similarly,

there is no cross-examination of the Investigating Officer

(PW-3) as to why he had not recorded the statement of

the alleged eye-witnesses, who except Bablu Barber were

related to the injured. In any case, the reason is not far to

seek. It is not the quantity but the quality of the evidence,

which matters. Testimony of an injured witness by itself is

sufficient to sustain the conviction provided it is found to

be reliable.

8. A scrutiny of the evidence of the injured (PW-2)

reveals that he has graphically narrated this incident and Crl. A. No. 23/2004 Page 4 in his cross-examination, nothing worthwhile is

forthcoming, which could in any manner damage his

version of this incident. The defence plea, of Appellant

being not present at the spot has not been put to the

injured (PW-2), nor it has been suggested to him that the

injured (PW-2) had sustained the injury by himself by

colliding with the lamp post. This is too far-fetched and

does not appeal to reason because no prudent person

would invite enmity, just to avoid paying Rs.100/-. Injured

(PW-2) has not been confronted with the version of father

of the appellant/accused, which is not at all plausible.

9. No doubt, the injury sustained by the injured (PW-2)

is simple one, but it was an extensive injury spreading

from left eye brow up to left parietal region.

10. There is unchallenged evidence of injured (PW-2) that

fifteen stitches were given on his head by the doctor and

for few days, he could not speak due to this injury, as his

was face was completely swollen. The assault on the

injured (PW-2) was by a sharp weapon and without any

provocation. Infact, it was pre-meditated one, which

imparts seriousness to the offence in question and clearly

makes out a graver offence and the Appellant has been

rightly tried and convicted for the offence under Section

308 of Indian Penal Code. It has not been shown by the Crl. A. No. 23/2004 Page 5 defence as to how and why the offence committed by the

appellant/accused should be scaled down from section

308 to section 324 of Indian Penal Code.

11. I am of the considered view that there is no illegality

or infirmity in the impugned judgment and the sentence

awarded is also befitting the crime committed and it calls

for no interference by this Court.

12. This appeal merits rejection and is accordingly

dismissed. Bail bonds of appellant/accused are forfeited.

Trial court is directed to take the Appellant into custody to

serve out the sentence as awarded by it.

13. Appeal and the pending application, if any, stands

accordingly disposed of.

Sunil Gaur, J.

February 08, 2010
pkb




Crl. A. No. 23/2004                                        Page 6