Vikas vs The State (Nct Of Delhi) & Ors
2013 Latest Caselaw 543 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : January 08, 2013
                                  DECIDED ON : February 05, 2013

+      CRL.A. 917/2011


       VIKAS                                          ..... Appellant
                             Through :   Mr.L.K.Verma & Mr.Dinkar
                                         Verma, Advocates.

                             VERSUS

       THE STATE (NCT OF DELHI) & ORS          ..... Respondents
                     Through : Mr.M.N.Dudeja, APP.
                               ASI Sham Sunder, PS Defence
                               Colony.

+      CRL.A. 1055/2011

       NANAK & ORS                                   ..... Appellants
                             Through :   Mr.Ashok Mahipal, Advocate.

                             VERSUS

       THE STATE OF (NCT OF DELHI)         ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.
                               ASI Sham Sunder, PS Defence
                               Colony.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Nanak, Gir Raj and Sunil Kumar were arrested in case FIR

No.192/2006 and challaned to the court of trial for committing offence

under Section 308/34 IPC. Allegations against them were that on

15.11.2005 at about 05:45 A.M. at House No.376, Masjit Moth, they in

furtherance of common intention, voluntarily caused injury to Vikas and

attempted to commit culpable homicide not amounting to murder. The

prosecution examined eight witnesses. Statements of the accused under

Section 313 Cr.P.C. were recorded and they pleaded false implication. On

appreciating the evidence and considering the rival contentions of the

parties by the impugned judgment all the three accused persons were

convicted for committing offence under Section 323/34 IPC. They were

sentenced to undergo imprisonment till the Rising of the Court (TRC)

with fine `1,000/- each.

2. The convicts have preferred Crl.A.No.1055/2011 challenging

their conviction and sentence under Section 323/34 IPC. The complainant

has preferred Crl.A.No.917/2011 challenging acquittal of the accused

persons under Section 308 IPC. The victim further challenged the

sentence awarded to the accused persons which was not sufficient.

3. I have heard the learned APP for the State and learned

counsel for the appellants in both the appeals and have examined the Trial

Court record.

4. On scrutinizing the statement of witnesses including the

complainant coupled with medical evidence I find no illegality in the

findings of the Trial Court whereby the accused persons were held

responsible for causing injuries to Vikas in furtherance of their common

intention. Complainant-Vikas has filed complaint case. Under Section

156(3) Cr.P.C., the Metropolitan Magistrate directed the police to register

case under Section 308 IPC. While appearing as PW-1 the complainant

categorically named the accused persons for causing injuries to him on his

head with a brick. He attributed specific role to the accused persons.

PW-2 (Sri Kishan), complainant's father, admitted him in AIIMS. He

also deposed that the accused Sunil Kumar, Gir Raj caught hold Vikas and

Nanak gave a brick blow on his head. PW-4 (Smt.Savitri), PW-5

(Ramwati) have also corroborated the oral testimony of complainant-PW-

1 (Vikas). All these witnesses were cross-examined at length but no

material contradictions/discrepancies emerged in their statements to

disbelieve them. The accused did not deny their presence at the spot. The

accused Sunil Kumar and Nanak also sustained some injuries in the

incident and were medically examined. It further ensures their presence at

the spot and lends credence to the prosecution story that a quarrel took

place between the two parties on the said date. On receipt of DD No.35A

from PCR on 15.11.2005 around 05:00 A.M., PW-6 (SI Nizamuddin)

reached the spot. Accused Nanak, Gir Raj and Sunil were arrested and

Kalandra under Section 107/151 Cr.P.C. was prepared against them.

Copies of the DD No.35A and DD No.4A were exhibited as Ex.PW6/A

and Ex.PW6/B respectively. Copy of the Kalandra is exhibited as

Ex.PW6/C. PW-7 (Dr.Prem Parkash) proved MLC (Ex.PW7/A) prepared

by Dr.Ram Niranjan Sharma. One injury i.e. cut and lacerated wound was

found on the left temporal region. There is no conflict between the ocular

and medical evidence. There was no delay in lodging the First Information

Report when Kalandra under Section 107/151 Cr.P.C. was lodged soon

after the incident. The complainant was taken to AIIMS and was

medically examined at 05:17 A.M. i.e. within half hour of the occurrence.

Injuries were opined simple caused by blunt object. Injuries sustained by

Sunil Kumar and Nanak were only abrasion and were possible during

quarrel. On appreciating the evidence, the Trial Court held the accused

persons perpetrators of the crime. I find no reasons to deviate from these

findings. The Trial Court has convicted the accused, and rightly, under

Section 323 IPC. Admittedly, the complainant and the accused persons

were close relatives. They were residing in the same premises. It is

undisputed that property dispute was going on between them and civil

litigation was pending about the partition of the property. The quarrel had

taken place over a trivial issue when the motor-cycle was parked in the

passage by complainant's relative. The accused persons were not armed

with any deadly weapons. Only a single brick blow was inflicted on the

temporal region of the complainant and as per the MLC (Ex.PW-7/A) it

was a mere cut and lacerated wound. Its dimensions were not given in the

MLC. Within a few hours the complainant was discharged from the

hospital. He was not admitted for medical treatment for the injuries

sustained by him. It is not clear from where the brick was taken to inflict

injury. The brick was not seized from the spot. No attempt was made to

inflict repeated blows with the brick. No harm was caused to any other

family member of the complainant who reached the spot. All these facts

and circumstances categorically rule out that there was intention of the

accused persons to cause injuries which could be fatal. PW-7 (Dr.Prem

Prakash) in the cross-examination stated that normally an injury of this

nature would not cause death.

5. In the light of the above discussion, conviction of the accused

persons under Section 323 IPC is maintained. Regarding the order on

sentence the convicts have been sentenced to imprisonment till the Rising

of the Court (TRC) with fine of `1,000/- each. The convicts have prayed

for release on probation as two of them are government servants and any

such conviction and sentence would affect their service career. There is

force in the submissions of the convicts. The incident had taken place all

of a sudden over a trivial issue of parking of the motor-cycle in the

passage. The parties are related to each other. The accused are not

previous convicts. Two of them are government servants. The accused

were also arrested under Section 107/151 Cr.P.C. They remained in

custody for some period after their arrest under Section 308 IPC.

6. Considering all these facts and circumstances the order of

sentence requires modification and instead of sentence till TRC and fine

of `1,000/- each, the convicts are given benefit of probation. Considering

their age, character, antecedents and the fact that two of them are

government servants, instead of sentencing them at once to any

punishment, they are ordered to be released on probation of good conduct

on their furnishing personal bond in the sum of `20,000/- each with one

surety each in the like amount to the satisfaction of the Trial Court for a

period of one year, to appear and receive sentence when called upon and

in the meantime they shall keep peace and be of good behavior.

7. The appeal filed by the victim-Vikas i.e.Crl.A.No.917/2011

is dismissed.

8. Crl.A.No.1055/2011 filed by the convicts is disposed of

while maintaining the conviction under Section 323/34 IPC and

modifying the order on sentence as stated above.

9. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE February 05, 2013 sa