Shiv Paltan vs State N.C.T. Of Delhi
2011 Latest Caselaw 2935 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl. Appeal No. 505/2001

%                                             Reserved on: 20th May , 2011

                                              Decided on: 31st May, 2011


SHIV PALTAN                                                    ..... Petitioner
                                Through:   Mr. Anil K. Gujral, Advocate

                       versus

STATE N.C.T. OF DELHI                                         ..... Respondents
                   Through:                Mr. Pawan Bahl, APP for the State
                                           with SI Sanjiv Mandal, PS Sarojini
                                           Nagar, New Delhi.

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. This is an appeal filed by the Appellant against the Judgment dated 11 th

May, 2001 convicting him for offence punishable under Section 308 IPC and

order on sentence dated 9th July, 2001directing him to undergo Rigorous

Imprisonment for a period of one year and to pay a fine of `5000/- and in

default of payment of fine, to further undergo Rigorous Imprisonment for a

period of two months, passed by the learned Additional Sessions Judge in case

FIR No. 81/1995 registered at P.S. Vinay Nagar under Sections 308/34 IPC.

2. The prosecution case in a nutshell is that on 8th February, 1995 at about

7:30 A.M. one Raju had gone to fetch water from the municipal tap in Saheed

Arjun Dass Camp, Laxmibai Nagar. After sometime his brother Neki Ram,

PW2 also reached at the spot to accompany his brother. There a quarrel took

place between Neki Ram and Shiv Paltan and Ram Pher on the turn to take

water from the tap and heated exchange of arguments took place. On hearing

the noise, Raghubir Singh, PW1 who is the real brother of Neki Ram, came to

the spot and tried to pacify Neki Ram and Shiv Paltan. On this, the accused

Shiv Paltan went in his juhggi which was a few steps away from the water tap

and brought out a saria and gave blow on the head of Neki Ram and Raghubir

Singh with that saria. In the meantime, Ram Pher also came there with lathi

type danda and assaulted Neki Ram with the danda blow on his hands. Both

the injured were removed to the hospital. Since Raghubir was found to be fit

for making statement, his statement was recorded and both the accused were

arrested after registration of the abovementioned FIR. After recording the

statements of the prosecution witnesses and the Appellant, he was convicted

and sentenced as above.

3. Learned counsel for the Appellant contends that despite the fact that the

incident occurred at a public place on the issue of filling up of the water, no

independent witness has been associated. The two witnesses are the

Complainant Neki Ram PW 2 and his brother Raghubir Singh PW1.

Admittedly, the incident took place on the issue of filling up of the water at

spur of the moment after exchange of heated arguments and so it was not a

premeditated act. There is no evidence on record that the alleged injury

inflicted was caused with an intention to cause culpable homicide.

4. It is further contended that the weapon of offence, that is, the saria, is

alleged to have been recovered from the jhuggi of the Appellant. However

even at the time of recovery, no independent witness has been associated. The

recovery of weapon of offence cannot be used against the Appellant as it has

not been linked with the injury caused as neither it has been sent to the CFSL

for matching with the blood nor any opinion has been taken from the doctor

concerned. As per the testimony of the injured witness, the Appellant caused

injury on the head and other co-accused gave injury by danda blow on the

hand. However, no injury was found on the hand of the complainant; so the

ocular evidence is contrary to the medial evidence. Thus, the testimony of the

eye-witnesses' cannot be relied upon. Learned counsel for the Appellant

relies upon the decision in Naresh vs. State of Haryana, 2005(2) C.C. Cases

(HC) 271. The co-accused Ram Pher has already been acquitted by the

learned trial Court as he was falsely implicated. Thus the Petitioner be also

acquitted as the testimony of the eye-witnesses is unreliable. In the alternative,

it is contended that the Petitioner is 62 years old, suffering from ailments and

had to be admitted in the hospital during custody. He has already undergone

major surgeries so he should be released on the period of imprisonment

already undergone.

5. Learned APP for the State on the other hand contends that the

testimony of Raghubir PW1 the injured witness and Neki Ram PW2, clearly

implicate the Appellant. The weapon of offence has been recovered at the

instance of the Appellant and the same has been identified by the witnesses,

hence it is connected with the offence committed. There is no discrepancy in

the testimony of eye-witnesses and hence no case for acquittal is made out.

The Petitioner has already been dealt with leniently as he has been awarded a

sentence of imprisonment for a period of one year and hence there is no

reason to further reduce the sentence of the Appellant. It is thus prayed that

the present appeal be dismissed being devoid of any merit.

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

PW2 Neki Ram, the injured has stated that on 8th February, 1995 at about 7:00

or 7:15 A.M. he went to take water from the tap. There he saw accused Shiv

Paltan had filled one bucket and was going to fill the second bucket. When he

told the Appellant that it was his turn to fill the bucket an exchange of hot

arguments ensued. The Appellant went to his jhuggi which was at a distance

of 3-4 steps from the water tap, brought out a saria and hit on the head of the

PW2. His brother Raghubir PW1 came there and tried to persuade the

Appellant not to quarrel. Thereafter Shiv Paltan asked Ram Pher who was

standing at some distance to bring a danda. Ram Pher brought a lathi/danda

from his jhuggi and he gave blows on Neki Ram's hands. PW2 has identified

the saria and danda. The statements of this witness is corroborated by the

MLC of PW2 and PW1, Ex. PW7/1 and Ex.PW7/2 respectively which show

injuries on their heads. The injury received by PW2 Neki Ram is grievous in

nature whereas the injury to PW 1 was opined to be simple in nature.

Similarly, PW1 Raghubir has stated about the fight and thereafter stated that

on hearing the noise, he went to the public water tap. He tried to persuade

Shiv Paltan who went to the jhuggi and brought a saria and gave saria blow on

his brother Neki Ram. He further stated that thereafter the Appellant gave

saria blow on his head. This version of PW1 that he witnessed the saria blow

on the head of PW2 is corroborated by PW2, who has stated that his brother

had come there before accused Shiv Paltan hit him with a saria on his head

and had tried to persuade the Appellant not to raise the quarrel. PW1 was

injured and this fact is duly corroborated by the testimony of both PW1 and

PW2 and the MLC of PW1 Ex.PW7/2, which records that the patient had

suffered contused lacerated wound on the left parietal region of head.

Moreover, when an injured is being beaten, he may not be in a position to

notice who are the other witnesses to have witnessed the incident and when

they reached the spot. Thus, I find no force in the contention of learned

counsel that the witnesses have not been able to name any of the jhuggi

dewellers, who were present at the spot. The weapon of offence, that is, the

saria has been recovered at the instance of the Appellant from his house. The

saria has been duly identified by the witnesses and thus connected with the

injuries caused.

7. The testimony of the injured witness is reliable and cogent and I find no

reason to discard the same. Moreover, non-joining of the public witness

cannot be held to be fatal to the prosecution case.

8. I find no merit in the present appeal. As regards the contention that the

sentence of the Appellant be reduced to the period already undergone, it may

be noted that the Appellant has been awarded a sentence of imprisonment for

a period of one year. The injury caused to the PW2 is grievous in nature. As

regards the medical status of the Appellant, a report has been received from

the Senior Medical Officer, Central Jail, Tihar, stating that the Appellant is a

follow up case of CAD and at present his general condition is stable and all

the prescribed medicines and medical diet are being provided to him at the Jail

Dispensary. Thus, I find no reason to reduce the sentence of the Appellant.

9. The appeal is dismissed. The Appellant is in custody. He will undergo

the remaining sentence. Copy of this judgment be sent to the Appellant

through Superintendent, Central Jail, Tihar.

(MUKTA GUPTA) JUDGE May 31, 2011 dk