Virender @ Pappu Etc. vs State
2013 Latest Caselaw 3383 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      RESERVED ON : 3rd APRIL, 2013
                                       DECIDED ON : 1st AUGUST, 2013

+                           CRL.A. 481/2007

       VIRENDER @ PAPPU ETC.                                 ..... Appellant
                     Through :        Mr.S.K.Bhattacharya, Advocate with
                                      Mr.Ajay Kumar, Advocate.

                            versus

       STATE                                                 ..... Respondent
                     Through :        Mr.M.N.Dudeja, APP.


AND


+                           CRL.REV.P. 601/2007
       RAJU GANDHI                                           ..... Petitioner
                     Through :        Mr.Sanjay Gupta, Advocate.

                            versus


       VIRENDER & ORS                                        ..... Respondents
                     Through :        Mr.M.N.Dudeja, APP.
                                      Mr.S.K.Bhattacharya, Advocate with
                                      Mr.Ajay Kumar, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

CRL.A.481/2007 & CRL.REV.P.601/2007                                Page 1 of 12
 S.P.GARG, J.

1. Virender @ Pappu (A-1), Rajesh @ Pappu (A-2), Surender

(A-3), Anand Sharma (A-4) and Ved Prakash @ Sonu Sharma (A-5) (the

appellants) impugn a judgment dated 25.07.2007 of learned Additional

Sessions Judge in Sessions Case No. 140/2006 arising out of FIR No.

19/2001 PS Gandhi Nagar by which they were held guilty for committing

offences punishable under Sections 323/452/307/34 IPC. By an order

dated 26.07.2007, they were sentenced to undergo RI for three years with

total fine ` 12,000/- each.

2. Allegations against the appellants were that on 05.02.2001 at

around 03.30 P.M. they picked up a quarrel and caused injuries to Raju

Gandhi, Pawandev Gandhi, Pinki Gandhi and Ramu. Daily Diary (DD)

No.21A (Ex.PW-15/H) was recorded at 16.05 P.M. at PS Gandhi Nagar

on getting information about the quarrel. The investigation was assigned

to SI Adesh Kumar who after recording victim Pawandev Gandhi's

statement (Ex.PW-7/A) lodged First Information Report. The articles

lying at the spot were seized. During the course of investigation A-1 to A-

5 were arrested. The MLCs (of the victims) were collected. Statements of

the witnesses conversant with the facts were recorded. The exhibits were

sent to Forensic Science Laboratory for examination. After completion of

the investigation, a charge-sheet was submitted against the appellants.

They were duly charged and brought to Trial. The prosecution examined

seventeen witnesses to substantiate the charges. In their 313 statement, A-

1 to A-5 pleaded false implication. On appreciating the evidence and after

considering the rival contentions of the parties, the Trial Court by the

impugned judgment held A-1 to A-5 guilty of the offences mentioned

previously. Being aggrieved, they have preferred the appeal. Victim (Raju

Gandhi) has preferred Criminal Revision Petition for enhancement of the

sentence awarded to the appellants. It is relevant to note that State did not

file any appeal/ revision against the sentence order.

3. I have heard the learned APP, Counsel for A-1 to A-5 and

Counsel for the complainant and have examined the record. The

appellants' counsel urged that the Trial Court did not appreciate the

evidence in its true and proper perspective and fell into grave error in

relying upon the testimonies of interested witnesses. No independent

public witness from the neighbourhood was associated at any stage of

investigation. The ocular and medical evidence are at variance. No injury

with knife was found on the victim (Raju Gandhi)'s body. Section 452

and 307 IPC are not applicable as the incident occurred at the spur of

moment without pre-meditation. Identity of any stranger with the

appellants at the spot has not been established and determined. Learned

APP urged that the injured persons have corroborated each other on

material facts and there are no good reasons to disbelieve their version.

Complainant's counsel emphasised that the victim sustained injuries

which were 'dangerous' in nature and the punishment awarded to the

appellants was not commensurate with the offence committed by them.

4. PW-9 (Raju Gandhi) was admitted at SDN Hospital,

Shahdara at 04.30 P.M. on 05.02.2001 by HC Murari Lal. He was referred

to LNJP Hospital, admitted there on the same day and discharged on

04.03.2001. PW-2 (Dr.Vivek) examined him and vide MLC (Ex.PW-2/A)

six Clean Lacerated Wounds (CLWs) of various dimensions were noticed

on his body. PW-1 (Dr.A.K.Kulshreshth) was of the opinion (Ex.PW-1/A)

that the injuries were 'dangerous' in nature. PW-17 (Dr.Arvind) proved

the documents (marked as P-17) by which medical treatment was given to

the victim. The injuries sustained by victim Raju Gandhi are not under

challenge. The appellants have suggested that he (Raju Gandhi) got

injuries after fall from his scooter and his head stuck against the

pavement. They, however did not adduce any evidence to substantiate that

injuries on the victim's body were due to fall from the scooter. None of

the accused revealed the registration number of the scooter allegedly

driven by him. They did not examine any witness from the neighbourhood

to prove their version. The victims have categorically denied injuries due

to fall from the scooter. In the incident, PW-7 (Pawandev Gandhi), PW-6

(Pinki Gandhi) and PW-8 (Ramu) were also injured and were medically

examined. PW-3 (Dr. Kameshwar Parsad) proved MLCs Ex.PW-3/B (of

Pawandev Gandhi), Ex.PW-3/C (of Ramu) and Ex.PW-3/D (of Pinki

Gandhi). Injuries were 'simple' caused by blunt object. The appellants did

not explain as to how and under what circumstances they sustained

injuries on their bodies.

5. PW-9 (Raju Gandhi) in his Court statement deposed that

when he went to the spot, A-1 to A-5 with a stranger were breaking the

articles in the shop of his brother Pawandev Gandhi. When he enquired

from A-1, why his brother & bhabhi were beaten, he inflicted a 'lathi'

blow on his head. A-4 gave a knife blow on the left side of his head

behind the ear. When he went inside the shop to make telephone call, the

accused persons chased him and A-5 who had 'khapcha' gave a blow on

his person. A-3 hit him with a 'palta'. A-2 broke his teeth with an iron

weight. A-1 and A-3 exhorted to kill him. A-4 again inflicted a knife blow

on his head and he was rendered unconscious. In the cross-examination,

he was confronted with the statement (Ex.PW-9/DA) where he had not

mentioned some facts deposed in the Court. He denied the suggestion that

he sustained injuries due to fall from scooter. No material discrepancies

emerged in his cross-examination to disbelieve him for the injuries caused

by the accused with weapons in their hands. The accused did not deny

their presence at the spot. PW-7 (Pawandev Gandhi) another injured on

whose statement the present case was lodged proved the version given to

the police at the first instance without variation. He also named A-1 to A-

5 to be the authors of injuries to Raju Gandhi, Ramu and Pinki Gandhi. In

the cross-examination, he admitted that none of them sustained injuries

with knife. He elaborated that he removed his brother to the hospital.

Again, material facts regarding the role attributed to the accused remained

unchallenged in the cross-examination. PW-6 (Pinki Gandhi) also

corroborated PW-7 on all material facts. PW-8 (Ramu) an independent

witness employed at Pawan Gandhi's shop is a crucial witness. Initial

quarrel took place with him when A-4 abused him for making noise while

preparing chowmin. He also deposed that injuries were caused to

Pawandev Gandhi and Raju Gandhi with 'danda' and knife. No ulterior

move was assigned to this witness who had no prior animosity with the

accused to falsely implicate them. PW-10 (Onkar) also deposed on similar

lines. These independent witnesses had no axe to grind to falsely implicate

the accused for the injuries caused to them and to spare the real culprits.

The altercation initially took place when A-4 objected to the noise created

by PW-8 (Ramu) while preparing chowmin. When Pawandev Gandhi

objected to that, A-1 to A-5 went to the shop and picked up quarrel with

Pawan Dev Gandhi. PW-9 (Raju Gandhi) on hearing the commotion went

to the spot and intervened. He was inflicted 'dangerous' injuries. The

accused persons were armed with various weapons/ articles used in the

shop (like iron weight, iron palta, vegetable knife, khapcha). The injured

were unarmed and in retaliation, they did not harm the appellants and

caused injury to them. Apparently, the appellants were aggressors and

authors of the injuries inflicted to the victims.

6. MLCs (Ex.PW-3/B, 3/C and 3/D) reveal that Pawan Dev

Gandhi, Ramu and Pinki Gandhi sustained simple injuries with blunt

objects. In the MLC of Raju Gandhi (Ex.PW-2/A) six Clean Lacerated

Wounds were found on his body. None of the injury was caused with

'sharp' weapon as alleged. The MLC did not reveal if any tooth was

broken. It appears that PW-9 (Raju Gandhi) has made improvements in

this regard and has exaggerated his version. However, exaggerations per

se do not render the evidence brittle. Minor contradictions,

inconsistencies, embellishments or improvements on trivial matter without

diluting the core of the prosecution case cannot be made a ground to reject

the evidence in its entirety. After going through the entire evidence it

stands established that A-1 to A-5 inflicted injuries to him in furtherance

of their common intention. After the initial confrontation with A-4, they

went to the shop of the complainant with various weapons/ articles

available to them. Repeated blows with 'lathi'/ blunt object were caused

on Raju Gandhi's body. It is well settled that the testimony of a stamped

witness has its own relevance and efficacy. The injury to a witness is an

inbuilt guarantee of his presence at the scene of crime and he will not

want to let his actual assailant go unpunished merely to falsely implicate a

third person.

7. The incident happened over a trivial issue when A-4 objected

to noise by PW-8 (Ramu) while preparing 'chowmin' in his employer's

shop and there was a hot exchange of words. There was no history of

previous quarrels between the neighbours. PW-9 (Raju Gandhi) was not at

the crime scene at the time of initial confrontation. A-1 to A-5 went to the

shop with articles in their possession and inflicted injuries to Ramu,

Pawandev Gandhi and Pinki Gandhi. Raju Gandhi went to the spot on

hearing the commotion and intervened. Apparently, the appellants did not

expect and anticipate his arrival at the spot. They had no pre-plan to cause

injuries to him. They were not armed with deadly weapons. Though A-4

allegedly had a knife, it was not used to cause injury on any vital organ of

the complainant/ victim. Other victims suffered only 'simple' injuries by

blunt objects. To justify a conviction under Section 307, it is sufficient if

there is present an intent coupled with some overt act in execution thereof.

The Court has to see whether the act, irrespective of its result was done

with the intention or knowledge and under circumstances mentioned

under Section 307. It depends upon the facts and circumstances of the

each case whether the accused had the intention to cause death or knew in

the circumstances that his act was going to cause death. In the instant

case, altercation took place on a trivial issue with Pawandev Gandhi and

Ramu. The medical examination showed that the injury was 'dangerous'

being situated on a vital part. The injuries however were not described

sufficient in the ordinary course of nature to cause death. These

circumstances rule out that the appellants were inspired by the intention to

commit murder of their neighbour Raju Gandhi. They however, are liable

for committing offence under Section 308 IPC. If an accused does not

intend to cause death or any bodily injury, which he knows to be likely to

cause death or even to cause such bodily injury as is sufficient, in the

ordinary course of nature to cause death, Section 308 would apply. In

'Sushil Kumar vs. NCT of Delhi', 1998 SCC (Crl.) 1552, Supreme Court

held that offence punishable under Section 308 postulates doing of an act

with such intention or knowledge and under such circumstances that if

one by that act caused death, he would be guilty of culpable homicide not

amounting to murder. An attempt of that nature may actually result in hurt

or may not. In the instant case, there was no previous animosity between

the appellants and the victims. There was no pre-meditation. The

appellants in a sudden scuffle injured the intervener with the articles/

instruments ordinarily used in their shop. The appellants could only be

attributed knowledge that by inflicting those injuries described in MLC

(Ex.PW-2/A) they were likely to cause death and did not have the

intention of causing death.

8. The appellants (A-1 to A-5) have been sentenced to undergo

RI for three years with fine. Considering the specific role attributed to A-1

who was armed with a 'lathi' and was instrumental in inflicting vital

injuries on PW-9's body, the sentence awarded to him is commensurate

with the offence committed by him and needs no intervention. However,

considering the participation of A-2 to A-5 and the role played by them in

inflicting injuries, they deserve lesser sentence. No injuries with knife was

inflicted by A-4 (Anand Sharma). A-2 and A-5 also did not cause any

injury with 'iron palta' and 'khapcha' with their sharp ends. Iron weight in

A-2's possession was not used to break victim's tooth as alleged. They

are not previous convicts and are not involved in any other criminal case.

The substantive sentence of RI for three years deserves to be modified to

one year each (A-2 to A-5).

9. I find no valid reasons to accept Criminal Revision Petition

No. 601/2007 filed by the victim for enhancement of the sentence for the

reasons detailed above. Crl.Rev.P.601/2007 is accordingly dismissed.

10. In the light of above discussion, A-1 to A-5 are convicted for

committing offence punishable under Section 308/34 IPC instead of

307/34 IPC. Sentence to undergo RI for three years for A-1 is left

undisturbed. The substantive sentence of the appellants A-2 to A-5 is

reduced to one year under Sections 308 and 452 IPC. The sentences shall

run concurrently and the appellants shall have benefit under Section 428

Cr.P.C. Needless to say, the appellants shall pay the fine imposed by the

Trial Court and the victim shall be entitled to ` 50,000/- as compensation

awarded by the Trial Court.

11. The appeal stands disposed of in the above terms. The

appellants are directed to surrender and serve the remainder of their

sentence. For this purpose, they shall appear before the Trial Court on

12th August, 2013, The Registry shall transmit the Trial Court records

forthwith to ensure compliance with the judgment.

(S.P.GARG) JUDGE AUGUST 01, 2013 tr