Khazan Singh & Ors. vs State
2011 Latest Caselaw 4019 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. Appeal No. 405/2000

%                                          Reserved on: 18th July, 2011

                                           Decided on: 18th August, 2011

KHAZAN SINGH & ORS.                                       ..... Appellant
                 Through:                Mr. M.R. Chawla, Adv.

                    versus

STATE                                                      ..... Respondents
                             Through:    Mr. Pawan Bahl, APP for the State
                                         with SI Girraj Singh, P.S. Badarpur.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA


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

2. To be referred to Reporter or not?               Yes

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

MUKTA GUPTA, J.

1. By this appeal, the Appellants have challenged their conviction in case

FIR No. 284/1996 under Section 325/34 IPC and Section 452/34 IPC and

sentence for Rigorous Imprisonment for a period of one year on both the

counts which was to run concurrently. During the pendency of the present

appeal, Appellant No.1 Khazan Singh died. Hence, appeal qua him stood

abated vide order dated 9th September, 2010. Since the Appellants were not

present initially bailable warrants were issued pursuant to which Appellant

No.2 Mangat Singh was present. However, Appellant No.3 Pritam Singh was

not present as he was not found residing at the given address and, thus, non-

bailable warrants were issued on 9th September, 2010. On 17th February,

2011, the surety of Appellant No.3 appeared in Court and stated that he had

informed the Appellant No.3 to be present, however he still did not appear.

Again non-bailable warrants were issued against Appellant No.3 to be

executed through SHO concerned. On 16th March, 2011 the surety of

Appellant No.3 appeared. The surety bond was discharged as the surety of

Appellant No.3 had fully cooperated and made all efforts to trace Appellant

No.3 and non-bailable warrants issued against Appellant No.3 were executed

with the cooperation of the surety. Since the Appellant No.3 had misused the

concession of order dated 17th July, 2000 suspending the sentence, the order

was recalled and he was directed to undergo the remaining sentence. Thus,

presently Appellant No.2 is on bail whereas Appellant No.3 is in custody.

2. Learned counsel for the Appellants contends that the dispute is between

the families of two brothers, PW2 Balwant Singh is the injured witness. PW3

Khanda Singh is the father of the injured, PW1 Jawant Singh and PW4 Uttam

Singh are brothers. PW4 though is the brother of injured, however, he turned

hostile. The Trial Court concluded that there was no intention to commit

culpable homicide hence exonerated the Appellants for offence under Section

308 IPC and convicted them for offences under Section 325/34 IPC. No

doctor has appeared in the witness box. The MLCs have been exhibited by

the record clerk and hence it cannot be said that it has been proved that the

injury was grievous in nature. Even the Trial Court concluded that the injury

cannot be treated to be grievous, and still convicted the Appellants for

offences under Section325/34 IPC. The Appellant No.1 who has since died

and PW3, the father of the injured are real brother. Though the allegations are

that the injured were assaulted by danda and kulhari, however no recovery of

weapon of offence can be said to have been made at the instance of

Appellants. Reliance is placed on Prem Singh and Ors. Vs. State 2011 I AD

(DELHI) 175 to contend that Section 325 or Section 323 IPC is not a minor

offence of Section 308 IPC and hence the Appellants cannot be convicted for

the offence under Section 323 IPC as well. The conviction under Section

452/34 IPC is also not sustainable as the incident took place in the open

veranda outside. In the alternative, it is argued that the Appellant No.3 has

now been in custody for more than four months and in view of the prolonged

trial they have faced, the Appellant should be released on the period already

undergone.

3. Learned APP on the other hand contends that PW2 Balwant Singh is an

injured witness and PW1 Jawant Singh his brother is a natural witness. PW3,

the father of PW1 & PW2 is an eye-witness and the testimony of these

witnesses cannot be discarded lightly. The contention that the Doctor has not

been examined is erroneous as Doctor Anu Kapoor was examined as PW11

who brought the X-ray plates. The learned Trial Court has held that the

injuries are grievous in nature as X-ray plates and report were exhibited by

Doctor. The judgment of this Court in Prem Singh and Ors. (supra) is not

applicable to the facts of the present case and, thus, there is no merit in the

appeal and the same be dismissed.

4. I have heard learned counsel for the parties and perused the record.

PW1 has stated that on 12th April, 1996 at about 12.15 AM at night he was

sleeping in his house and on hearing the shouts/cries from the house of his

brother Balwant Singh which is opposite his house, he rushed towards his

brother and saw that Khazan Singh, Appellant No.1 since deceased was

present there with a kulhari, Mangat Singh, Appellant No.2 was having a

danda in his hand and his other son was having a lathi in his hand. He

identified all the three Appellants correctly in the Court. He stated that

Appellant No.1 hit the blow by the kulhari on the person of his brother

Balwant Singh, PW2 and the other Appellants were waiving their lathis and

dandas. The Appellant No.1 was also abusive and was stating that whosoever

would come in their way would be dealt with like this. Since the brother of

PW1 was drenched with blood he tied his head with clothes and removed him

to the hospital. PW2 Balwant Singh is an injured witness who has stated that

on 12th April, 1996 he was sleeping in his house at about 11.00 or 12.00 night

Khazan Singh and his two sons came and started beating him due to which he

became unconscious. He received injuries on his hands and head. He

identified his clothes which were blood-stained. PW3 Khanda Singh the

father of PW1 and PW2 has also appeared in the witness box and stated that

about a year ago his son was sleeping in the Aangan of his house where he

was also sleeping. Appellant No.1 was carrying a kulhari in his hand and

Appellants No. 2 & 3 were carrying a danda and a lathi in their hands

respectively. He identified all three accused. He further stated that they all

started beating his son with the weapons they were carrying. Since bulb was

on, he could see all three accused running away from the spot. His son then

took the injured son to the hospital. PW 3 identified the blood-stained clothes

of his injured son. He also identified the kulhari, lathi and danda recovered

from the house of the Appellants as the weapons with which injuries were

inflicted. PW4 Uttam Singh has turned hostile. The weapons namely kulhari,

danda and lathi were produced by PW5 HC Jagat Singh and it was found that

they were in an unsealed condition. It is not even the case of the Prosecution

that the weapon of offences were sealed.

5. PW8 R.S. Khera the Record Clerk AIIMS has appeared in the witness

box and has identified the handwriting of Dr. Anupam Singh on the MLC.

The original MLC was seen and returned. PW 9 Head Constable Mohd.

Yusuf is the Investigating Officer who has stated about the investigation

conducted by him along with PW10 Constable Virender PW10. Both of them

have deposed about the injury on the person of PW2 and recovery of weapon

of offence from Appellant No.1. PW11 Dr. Anu Kapoor is the Radiologist

from AIIMS who has exhibited X-ray report Ex.PW11/A which is in the

handwriting of Dr. Anil Malik who had examined the X-ray plate No. 13504.

Dr. Anu Kapoor has identified the handwriting and signatures of Dr. Anil

Malik. This witness has not been cross-examined.

6. The defence of the Appellants is a simple denial and that they have

been falsely implicated due to property dispute in the family and litigation

was pending in the Court. No defence witness has been examined. A perusal

of the testimony of PW1 and PW2 clearly shows that the Appellant No.1 gave

blows by Kulhari on the head whereas Appellants No. 2 & 3 gave danda and

lathi blows resulting in the injuries. There can be no dispute that three of

them came with a pre-meditated intention in the dead of the night and

committed this offence in the veranda inside the house of the injured PW2.

PW2 in his cross-examination has clarified that there was an iron gate in the

house which was always kept open and he was sleeping inside the veranda of

the house. Thus, the contention of the learned counsel for the Appellant that

there is no house-trespass as the offence took place in the verandah is

incorrect and is liable to be dismissed. There is no ground to interfere with

the conviction of Appellants for offences punishable under Section 452/34

IPC.

7. As regards the conviction for offences under Section 325/34 IPC the

manner in which the three Appellants had come armed with Kulhari, lathi and

danda and inflicted injuries in the head of PW2 it can be concluded that the

injury were caused in furtherance of common intention to cause grievous hurt.

While committing injury the Appellant No.1 had also exhorted, thus, further

proving this intention.

8. The reliance of the learned counsel for the Appellants on the decision of

this Court in Prem Singh and Ors. (supra) is wholly misconceived. In the said

case, the Appellants before this Court were Prem Singh and Vikas. This

Court came to the conclusion that there was no pre-meditated fight and the

injuries were inflicted on the spur of the moment. The injury on the head of

injured Rajia therein was inflicted by one Bhaleru who was not the Appellant.

There was no role of the Appellants Prem Singh and Vikas in the said injury.

For the injuries on Israfi and Mohd. Ibrahim the Appellants therein Prem

Singh and Vikas were liable to be convicted for offence under Section 323/34

IPC. However, for this charge they had been acquitted and there was no State

appeal against acquittal filed. Thus, Appellants therein could not be convicted

for offence under Section 323/34 IPC. The charge for 308/34 IPC was for

inflicting injury on Rajia wherein the Appellants therein had no role to play

and, thus, they could not be convicted for offence punishable with 308/34 IPC

for having caused simple hurt to Israfi and Mohd. Ibrahim under Section

323/34 IPC.

9. In the present case the Appellants came with the pre-meditated

intention as held above and inflicted injuries on the head and hand by Kulhari,

lathi and danda. Thus, there is no infirmity in the judgment of the Learned

Trial Court convicting the Appellants for offence punishable under Section

325/34 IPC. I find no ground to interfere with the conviction of Appellants

No. 2 & 3 for offence punishable under Section 325/34 and 452/34 IPC. The

Appellants have been awarded imprisonment for a period of one year. I find

no ground to further reduce the said sentence.

10. Consequently, the appeal is dismissed. The bail bond and the surety

bond of the Appellant No.2 are cancelled. He be taken into custody to

undergo the remaining part of his sentence. Appellant No.3 is already in

custody. He would undergo the remaining sentence. Appellant No.3 be

informed through the Superintendent, Tihar Jail.

(MUKTA GUPTA) JUDGE AUGUST 18, 2011 'ga'