Birender Pal Singh @ Varinder Pal vs State
2011 Latest Caselaw 122 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+          CRL.M.(BAIL) 1044/2010 in CRL.A. 882/2010

                                                   Decided on 10.01.2011
IN THE MATTER OF :

BIRENDER PAL SINGH @ VARINDER PAL                    ..... Appellant
                   Through: Mr. Sudhir Nandrajog, Sr. Advocate with
                   Mr. Sunder Khatri, Advocate

                    versus

STATE                                                      ..... Respondent
                          Through: Mr. Navin Sharma, APP for the State


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may            No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?           No

     3. Whether the judgment should be                   No
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present application is filed by the appellant praying inter alia

for suspension of sentence passed against the appellant in a case arising out

of FIR No.249/2003 lodged by the brother of the appellant, Shri Surender Jit

Singh under Section 307 IPC, registered with Police Station: Paschim Vihar,

Delhi. Under the impugned judgment dated 22.07.2010 passed by the

learned ASJ, it was held that the prosecution was able to prove its case

against the appellant beyond doubt. As a result, he was held guilty and

convicted under Section 307 IPC. This was followed by the order on

sentence dated 24.07.2010 whereunder, the appellant was sentenced to

undergo rigorous imprisonment for a period of five years coupled with a fine

of `2,000/-, in default of payment of which, he was directed to undergo

rigorous imprisonment for a period of six months.

2. Notice was issued on the present application on 30.07.2010. A

status report was filed by the learned APP for the State, opposing the relief

sought by the appellant herein. It is stated that on enquiry conducted, it

has been found that the mother of the appellant is a widow, aged 80 years

and has six sons including the appellant herein and two daughters, all of

whom are married. It is stated that the mother can be well looked after by

her remaining sons and daughters in the absence of the appellant. As far as

the nominal roll of the appellant is concerned, a perusal thereof shows that

as on 29.09.2010, he had undergone sentence for a period of two months

and 12 days. As on date, the said period of conviction undergone is 5

months and 22 days.

3. Counsel for the appellant states that there are apparent

inconsistencies in the evidence placed on the record, which the learned ASJ

had failed to consider while deciding the impugned judgment. He states that

in the FIR, it was mentioned that the injuries suffered by the complainant

were caused by a knife but the police had shown recovery of a screw driver

having blood on its tip from the possession of the accused. He states that

this fact goes in favour of the appellant to show that he has been wrongly

convicted by the learned ASJ.

4. In the impugned judgment, the aforesaid aspect of material

discrepancy was noted by the learned ASJ in para 7 and dealt with by

observing that as per the complainant, PW-2 and his wife, PW-4, the

complainant was either hit by a sharp weapon or a knife and since at that

time, his face was pressed towards the ground, he could not identify the

weapon. As a result, he thought that it was a knife but actually it was a

screw driver. PW-4 also supported the statement made by PW-2 and stated

that she could only see the handle of the weapon, which she identified as a

knife because of the fact that she was terrified at the time when the incident

occurred. The trial court held that a wrong description of the weapon of

offence ought not to be fatal to the case. Further, the explanation for the

injuries suffered by the victim as sought to be offered by the appellant is

that the injuries were self-inflicted and not caused by him. This aspect was

examined by the learned ASJ, who noted that when such a suggestion was

put to the doctor, PW-9, he replied that it is not possible for a normal person

to inflict injuries on their own chest, like the ones that were found on the

complainant's chest.

5. Taking a prima-facie view of the present case and having regard

to the aforesaid discussion made in this regard by the trial court and

considering the fact that the MLC conducted on the victim established that

there were stab injuries on the neck, chest and shoulder of the victim, which

were grievous in nature, at present, this Court is not inclined to grant the

relief sought in the present application. The application is dismissed.

                                                             (HIMA KOHLI)
JANUARY 10, 2011                                                JUDGE
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