Ramesh vs State
2010 Latest Caselaw 379 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl. Appeal No. 965/2009
%                          Decided on: 22nd January,2010

Ramesh                                            ..... Appellant
                        Through: Mr. Vikramjit Saini, Adv.

                    Versus


State                                            ..... Respondent
                        Through: Mr. M.P. Singh, APP for the
                                 State.


                             AND

Crl.A.No.976/2009

Laxman                                            ..... Appellant
                        Through: Mr. Vikramjit Saini, Adv.

                    Versus


State                                             ..... Respondent
                        Through: Mr. M.P. Singh, APP for the
                                 State.


        CORAM:

        HON'BLE MR. JUSTICE A.K. PATHAK

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


        2.To be referred to Reporter or not?                        Yes

Crl.A.No.965-2009                                    Page 1 of 11
        3.Whether the judgment should be reported
         in the Digest?                                            Yes


     A.K. PATHAK, J. (ORAL)

1. Appellants have been convicted under Sections 308/34 of

the Indian Penal Code (IPC) by the learned Additional Sessions

Judge (North-West-04), Rohini, Delhi; sentenced to undergo

rigorous imprisonment for a period of two years and to pay fine

of Rs.3,000/- each and in default of payment of fine to further

undergo simple imprisonment for a period of three months.

Benefit of Section 428 of the Code of Criminal Procedure

(Cr.P.C.) was made available to the appellants.

2. Since both the appeals arise from the same judgment of

conviction and order on sentence, these are being decided

together.

3. Briefly stated, prosecution case that emerges from the trial

court record, is that on 5th July, 2005 at about 9:15 PM injured

Zakir Hussain along with his wife Mehroon went to the house of

accused Laxman, who was his neighbour, and asked him to

return wheel of rickshaw or pay price of same, at which, Laxman

became angry and on seeing this, the complainant and injured

started moving away from his house. In the meanwhile, accused

Laxman and Ramesh came rushing towards Zakir and started

beating to him with danda and saria. Accused Ramesh was

having a danda; whereas accused Laxman was having a saria.

Accused Laxman gave saria blow on the head of injured and

accused Ramesh gave danda blows on other parts of his body.

Both the accused, by this act, caused injuries on the person of

Zakir Hussain.

4. Information regarding this incident was received in the

police station Narela Industrial Area, pursuant whereof DD No.

23-PP was registered and handed over to Head Constable Shiv

Kumar, for enquiry, who along with Constable Suresh Kumar,

reached M.B. Hospital, Pooth Khurd, Delhi and obtained MLC of

injured Zakir Hussain, who was declared unfit for statement.

Accordingly, Head Constable Shiv Kumar recorded statement of

wife of injured Smt. Mehroon (complainant), pursuant whereof

rukka was prepared and FIR No. 338/2005 under Sections

308/34 IPC was registered at police station Narela Industrial

Area.

5. Accused Laxman was arrested on 6 th July, 2005. He made

a disclosure statement and pursuant thereof got recovered the

saria from his house, which was seized by the Investigating

Officer. Accused Ramesh was also arrested on 6 th July, 2005 and

made a disclosure statement and got recovered the danda from

his house which was also taken in possession. Site plan was

prepared by SI Ram Chander (Investigating Officer) at the

instance of the complainant.

6. After completion of investigation accused Laxman and

Ramesh were sent up to face trial, for having committed the

offence under Sections 308/34 IPC, by the police station Narela

Industrial Area, by filing a charge-sheet under Section 173

Cr.P.C. in the court of learned Metropolitan Magistrate, who

took cognizance of the offence and summoned the accused, vide

order dated 3rd August, 2005 and after completing the

procedural formalities under Section 207 Cr.P.C. committed the

case to the Sessions court, vide order dated 8th September,

2006, as the offence under Sections 308/34 IPC was exclusively

triable by the Sessions court.

7. Learned Additional Sessions Judge framed charge under

Sections 308/34 IPC against the accused on 18 th January, 2007

to which they pleaded not guilty and claimed trial.

8. Prosecution examined ten witnesses in all. After

prosecution closed evidence, statement of accused Laxman and

Ramesh was recorded under Section 313 Cr.P.C. on 3 rd August,

2009 wherein entire incriminating evidence, which had come on

record, was put to them, they denied the same and claimed

themselves to be innocent. However, no evidence was led by the

accused in their defence.

9. Injured Zakir Hussain was examined as PW7 and his wife

complainant Smt. Mehroon was examined as PW2, eye-witness

of the incident Sh. Sharavan was examined as PW3. However,

he did not support the prosecution case and was declared

hostile. All other witnesses examined by the prosecution, were

formal witnesses being police officials and doctor.

10. Learned Additional Sessions Judge found testimonies of

PW2 Mehroon and PW7 Zakir Hussain to be trustworthy, reliable

and sufficient enough to prove the incident wherein accused

Laxman and Ramesh had caused injuries on the person of PW7

Zakir Hussain by saria and danda, which they were carrying in

their hands. Further, that the testimony of PW7 i.e. injured was

corroborated by testimony of PW2.

11. I have perused the statements of PW2 and PW7 and I

concur with the learned Additional Sessions Judge that their

testimonies are trustworthy and reliable. PW2 and PW7 have

corroborated each other on material points. They are natural

witnesses. Merely because one eye witness had turned hostile,

by itself, cannot be made a ground to discard the versions of the

injured and complainant. FIR was registered on the complaint of

PW2 and her testimony in court is consistent with the

prosecution story. She had deposed that when her husband

asked the accused to pay cost of wheel or return the same,

accused Laxman became furious and gave saria blow to her

husband; whereas accused Ramesh gave danda blows to her

husband. PW7 has also deposed that when he asked accused

either to pay money or return the wheel, he became agitated and

started abusing him; that he had hardly moved four/five steps

from the house of accused, when accused Laxman and Ramesh

started giving him saria and danda blows. Saria was got

recovered by the accused Laxman while danda was got

recovered by accused Ramesh pursuant to their disclosures.

Recovery of weapons of offence at the instance of accused also

corroborate version of PW2 and PW7 regarding beatings

extended by the accused to the injured. PW7 had identified

danda as well as saria in the court. In his cross-examination,

PW7 has categorically stated that the saria and danda were the

same weapons which the accused persons used in assaulting

him. There is no reason as to why injured and his wife would

implicate accused persons in this case falsely, more so, when no

evidence had been led by the accused persons to show any

previous enmity or grouse between injured and accused. I am of

the view that statements made by PW2 and PW7 are trustworthy

and reliable and had been rightly accepted by the learned trial

court.

12. Learned counsel for the accused has vehemently contended

that there are inherent material contradictions and

discrepancies in the statements of PW2 and PW7, therefore, no

conviction can be based thereon. PW2 had given the time of

incident as 9:00 PM while as per PW7 incident took place at 6:30

PM. According to the learned counsel, this is a material

inconsistency. He has further contended that the place of

incident is doubtful. As per PW2, incident took place outside the

house of accused Laxman; whereas as per PW7 incident took

place about four/five steps away from the house of accused

Laxman. This, according to learned counsel, is yet another

material discrepancy. I do not find any force in this contention

of learned counsel for the accused. Admittedly, accused persons

as well as injured were neighbours and were living in the same

area. Their houses were also in the same locality. Merely

because one witness had said that incident took place outside

the house of the accused; while other said that incident took

place about four/five steps away from the house of the accused,

would not make much difference. This kind of minor

discrepancy may arise keeping in mind that both the witnesses

were illiterate and their statements had been recorded after

about two years of incident. Merely because, time of incident

was given by PW7 as 6:30 PM instead of 9:00 PM would also not

be sufficient to discard his testimony as a whole. PW2 is the

complainant and gave the time of incident as 9:00 PM and her

this version is in consonance with the prosecution case,

inasmuch as, in the FIR time of incident had been mentioned as

9:15 PM. This fact is also corroborated from the MLC. Be that

as it may, in view of this minor inconsistency whole deposition of

these witnesses cannot be thrown in the dustbin. So far as

incident is concerned, both PW2 and PW7 had corroborated each

other with regard to the role played by the accused.

13. From the testimonies of PW2 and PW7, it is clear that both

the accused were sharing common intention and in furtherance

of their common intention they had assaulted Zakir and caused

injuries on his person.

14. Next question which arises for consideration is as to

whether the act of the accused causing injuries on the person of

the injured, attract ingredients of offence under Sections 308

IPC. I am of the opinion that in order to constitute an offence

under Section 308 IPC, it is to be proved that the act was

committed by the accused with the intention or knowledge to

commit culpable homicide not amounting to murder and that the

offence was committed under such circumstances that if the

accused, by that act, had caused death he would have been

guilty of culpable homicide. Intention or knowledge, on the part

of the accused, is to be deduced from the circumstances in

which injuries had been caused as also the nature of injuries and

the portion of body where such injuries were suffered. In this

case, it appears that a quarrel broke out between the parties all

of a sudden wherein, in a fit of rage, accused persons assaulted

injured Zakir Hussain. Thus, it cannot be said that assault was

premeditated. As per PW10 Dr. Jai Kumar, the injured had CLW

over right temporo parretal region and bleeding was found and

the injury was simple in nature. I am of the view that merely

because, an injury is found on the head, it cannot be said that

such an injury was caused with the intention to commit culpable

homicide not amounting to murder. In my view, in the fact of

this case, nature of injury coupled with the circumstances in

which the same had been caused shows that there was no

intention or knowledge on the part of the accused to cause such

injuries, which would have resulted in the death of injured. The

material before the learned Additional Sessions Judge, in my

view, was not such which could give rise to grave suspicion

against the accused persons of their having the intention or

knowledge to cause such injuries, that had it caused death of

injured, they would have been guilty of culpable homicide not

amounting to murder. Thus, I am of the opinion that ingredients

of offence under Sections 308/34 IPC are not attracted in this

case appellants are entitled to acquittal for this offence.

Accordingly, appellants are acquitted under Section 308/34 IPC.

15. However, it is clear from the evidence on record that the

appellants, in furtherance of their common intention, had caused

simple injuries to the injured Zakir Hussain, therefore,

appellants are liable to be convicted under Sections 323/34 IPC,

which I do, and convict them accordingly.

16. Appellants are poor rickshaw pullers and their whole family

is dependent upon them. It is stated that they do not have

previous criminal record. Keeping in mind these facts, I order

for release of the appellants on probation on their furnishing

personal bonds in the sum of Rs.10,000/- each with one local

surety each in the like amount, to maintain peace and good

behaviour for a period of one year, to the satisfaction of trial

court concerned.

17. Both the appeals are disposed of in the above terms.

A.K. PATHAK, J January 22, 2010 rb