Kuldip Singh & Ors. vs State
2013 Latest Caselaw 619 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment Reserved on:05.02.2013
                                Judgment Delivered on:08.02.2013

+      CRL. APPEAL NO.129/2000

       1.KULDIP SINGH S/O SH.GURBACHAN SINGH
         RESIDENT OF H.NO.803, SECTOR-V,
         R.K.PURAM, NEW DELHI

       2.SURINDER PAL/SO SH.GURBACHAN SINGH
         RESIDENT OF H.NO.803, SECTOR-V
         R.K.PURAM, NEW DELHI

       3.CHARANJIT SINGH @CHANCHE @ CHINNA
         SON OF GURJEET SINGH
         RESIDENT OF 209, RBI QUARTERS,
         SECTOR-6, R.K.PURAM, NEW DELHI

       4.GURMUKH SINGH @ LADDU S/O SUKHDEV SINGH
         RESIDENT OF H.BNO.575, SECTOR-V
         R.K.PURAM, NEW DELHI              ...Appellants
                      Through: Appellants with their counsel Mr.
                                K. K. Manan, Adv

                                 Versus
       STATE                                        ...Respondent
                           Through:   Mr.Mukesh Kumar, APP along
                                      with SI Mahabir Singh P.S. R.K
                                      Puram.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 On 18.02.2000, the three appellants had been convicted for the

offence under Section 326 read with Section 34 of the Indian Penal

Code (IPC). They had been sentenced to undergo rigorous imprisonment

for three years and to pay fine of Rs. 5,000/- each and in default of

payment of fine, simple imprisonment for five months. Out of the fine

so realized, a sum of Rs.10,000/- was directed to be paid to the injured

Anand Prakash as compensation. Benefit of Section 428 Cr. PC had

been granted.

2 The version as set up by the prosecution is that on 30.04.1989, an

information was received that certain persons have been injured in front

of house NO. 467-469, Sector 6, R.K. Puram, Delhi. Inspector Kishan

Mohan (PW-7) reached the spot where it was learnt that injured have

been removed to the Safdarjung Hospital. Leaving Constable Ram Dutt

at the spot, the Investigating Officer reached the hospital. The injured

Anand Prakash (PW-2) was unfit for statement. The statement of the

complainant Ram Gopal Mishra (PW-1) was recorded. It was to the

effect that he along with his relative Ram Sahai Shukla (PW-3) had gone

to the market to eat „pan‟ where accused Surender Pal and Chinna came

to them and caught hold of the neck of PW-3 and started beating him as

he had teased a girl. PW-1 tried to save PW-3 but he was pushed aside.

The friend of his son Sanju saved them. This was at about 07:30 PM.

Thereafter at around 08:10 PM while he was sitting in his house,

accused Surender Pal and Chinna along with accused Kuldip and

Gurmukh Singh @ Laddu came to his house; (PW-2) who was their

neighbour asked them the reason. Ved Prakash (PW-4) brother of PW-2

also came out. Thereupon accused Laddu gave a slap to PW-4 and when

PW-2 tried to intervene a sword blow was inflicted upon his head. Iron

blows were given to Ranbir Singh who had also come to the scene by

accused Chinna. Accused persons thereafter fled away. The injured

PW-2 and Ranbir Singh were removed to the hospital. Their MLCs were

proved through Dr. Shalabh Kumar (PW-6). Ex. PW-6/B which is the

MLC of PW-2 and has recorded that there was a 4 inch X half inch bone

deep CLW on the right side of the scalp and there were three abrasions

1" X1"; the injury was opined to be grievous. X-ray reported a fracture

of the right parietal bone. The MLC of Ranbir Singh Ex. PW-6/C had

noted a CLW on the parietal-occipital region; it was a simple injury.

Ex. PW-6/A, the MLC of accused Kuldip Singh had recorded a simple

injury.

3 It was this evidence which had led to the filing of the chargesheet.

Accused persons were charged for the offence under Section 307/34

IPC. The prosecution had examined seven witnesses of whom their star

witness was Anand Prakash examined as PW-2. He has reiterated his

version on oath and given a separate role to the accused. All the accused

had come to the house of PW-1 and on hearing their noise PW-2,

neighbour of PW-1 came out. Accused Kuldip had inquired about Bunty

the son of his neighbor; accused Gurmukh Singh had given a slap to his

brother PW-4 Ved Prakash; accused Surender Pal had inflicted a sword

blow on PW-2 and an iron blow had been inflicted upon him by accused

Charanjit Singh and when Ranbir Singh tried to intervene, he was beaten

with an iron rod by accused Charanjit Singh; he thereafter became

unconscious. In his cross-examination, he was confronted with his

earlier version which he had given to police Ex. PW-2/DA.

4 Submission of the learned counsel for the appellant is five-fold.

First submission is that there are material contradictions in the testimony

of PW2 and the so called other eye witnesses; the version as set up by

PW2 and PW1 is different from the versions given by PW3 and PW4 .

There is an inordinate delay in the registration of the FIR; the FIR had

been registered on the day following the incident i.e. 01.05.1989 for

which there is no explanation. Third submission being that the weapons

of the offence i.e. so called sword/rod has not been produced. The MLC

of PW2 shows that there are cuttings over the words „bone fracture‟ and

it also does not appear to be in the same hand-writing. Lastly it has been

submitted that the statement of PW2 was recorded after an unexplained

delay i.e. only on 03.05.1989 when admittedly he was conscious at the

time when the incident took place and he was taken to the hospital in a

bus for which he had to walk for 100 paces; the version set up by the

prosecution suffers from infirmities and accused persons are thus

entitled to a benefit of doubt and a consequential acquittal. The

additional submission being that the accused Kuldip and Chinna have

not been attributed with any specific role and as such the provisions of

Section 34 of the IPC also do not get attracted.

5      These submissions have been countered.


 6      Record shows that the star witness of the prosecution was PW2

Anand Prakash. His statement was recorded on 03.05.1989 as he

remained in the hospital up to 02.05.1989 and in fact in this intervening

period an application had been filed by the investigating officer to get

his statement recorded (Ex.PW7/B) but he being unfit for statement, his

statement could not be recorded till 03.05.1989. PW2 has attributed a

specific role to each of the accused persons; accused Kuldip had

enquired about Bantoo; accused Surender Pal had inflicted the sword

injury upon his head; accused Charanjit had returned a iron rod on his

head and when he tried to shield himself the blow landed on his hands;

accused Gurmukh had slapped his brother. Ranbir Singh had also

received injuries at the hands of accused Charanjit; all the other accused

persons also grappled with Ranbir; PW-2 thereafter became

unconscious. Admittedly statement of PW2 could not be recorded up to

03.05.1989 as in this intervening period, he was unfit for statement and

this is evident from the fact that the investigating officer on the first day

itself i.e. 30.04.1989 had moved an application seeking permission of

the doctor to get his statement recorded but it was declined. Nothing

could be elicited in the cross-examination of PW2 which could dislodge

his version. In fact PW2 has categorically stated that he had no enmity

with the accused persons.

7 The incident had occurred at 8.10 PM on 30.04.1989. The rukka

was taken at the mid-night of 12.10 AM on 01.05.1989 and the FIR was

registered shortly thereafter at 12.30 AM. The delay in taking rukka was

obviously for the reason that the urgency of removing the injured to the

hospital was first to be complied with; the rukka was then taken from

the hospital.

8 The case had been registered on the complaint of the PW1. As per

his version, he along with PW3 had gone to eat pan in their market and

when they were returning, they were accosted by the accused persons of

whom the accused Surender Pal, Chinna and Laduu @ Gurmukh Singh

had caught hold of PW3 on the pretext that he had teased a girl; Sanju a

friend of his son intervened. About almost one hour later when PW1

was sitting in his house, a noise was heard and he came out; he noticed

that PW2 his neighbour had also come out as all the four accused

persons had come there; it was at this time that accused Laduu @

Gurmukh Singh gave a slap to PW4 (brother of PW2) and when PW2

tried to save his brother accused Surender Pal gave him a blow with his

sword; Ranbir Singh who tried to save them was also beaten by accused

Chinna.

9 This version of PW1 and PW2 is not different from the versions

given by PW3 and PW4 both of whom are also eye witnesses. PW-2 and

PW-3 were also the witnesses to the first point of the incident which had

occurred at 7.00 pm when they had gone to the market to eat pan.

Learned counsel for the appellant has vehemently pointed that in this

version of PW3 he has stated that 15 to 20 persons armed had come to

the spot which is different from the version of PW1 and PW2. This

discrepancy even as noted and pointed out by the learned counsel for the

appellant is not a material reason to otherwise reject the well proven

case of the prosecution which stands further corroborated and affirmed

by PW4 who was the brother of PW2 and who had been slapped by

accused Laduu @ Gurmukh Singh which version of PW 4 also stands

corroborated by the stand of PW1 and PW2 as well.

10 Learned counsel for the appellant‟s endeavour to show that the

first versions of PW2 (Ex. PW2/DA) and PW4 (Ex. PW4/DA) are in

contrast with their deposition on oath in court also does not merit any

consideration. A perusal of the version of PW2 and PW4 when accosted

with their version recorded before investigating officer (Ex. PW2/DA

and Ex. PW4/DA respectively) shows that these are not material

discrepancies which have been pointed out; merely because in the first

statement under Section 161 of the Cr.P.C PW2 had not got recorded

that he was watching TV at the time when the incident had occurred or

that he had come out of his house for relaxation, cannot be a material

contrasts qua his deposition on oath. So also the confrontations noted in

Ex.PW4/DA and testimony of PW4 on oath in court; merely because in

Ex. PW4/DA it had not been recorded that Ranbir Singh and Gopal

Mishra had come to the spot later on would not materially affect the

version otherwise proved by the prosecution.

11 This is a case where the gamut of the evidence brought on record

shows that eye witnesses PW1 to PW4 are all corroborative of one and

another; trivial discrepancies here and there do not disturb their

otherwise well explained versions. While appreciating the evidence of

a witness ground realities and fact situations have to be kept in mind; the

testimony of a witness has to be read as whole and wherever there is a

ring of truth found in it, the court must evaluate it in that background;

the general tenor of the testimony has to be borne in mind. Non-

examination of Ranbir Singh, the other injured, would also not disturb

the case of the prosecution as in one part of the record of the trial court it

has been noted that Ranbir Singh had come to get his testimony

recorded but thereafter was not available to the prosecution as a witness;

it is not as if the prosecution has deliberately withheld him. The other

eye witnesses have sufficiently proved the case of the prosecution.

12 The MLC of PW2 has been proved as Ex. PW6/B. There was a 4

inch X half inch bone deep CLW on the right side on scalp in addition to

three abrasions 1" X1" on the scalp; injuries were opined to be grievous.

X-ray report had noted a fracture of the parietal bone on the right side.

This medical evidence shows that the injuries were of a serious nature

being on the right side of the head of the injured, a vital part of the body.

Even presuming that the weapon of offence has not been recovered, it

would not diminish the case of the prosecution as it is not the case of the

accused that they were not at the spot or that they were not carrying the

sword; no such suggestion has even been given to any of the witnesses

of the prosecution. Even in their statements recorded under Section 313

of the Cr.P.C. the only defence sought to be set up by the accused is that

they were innocent and have been falsely implicated with no further

particulars. .

13 This ocular testimony of the witnesses corroborated by the MLC

Ex. PW6/B endorsing the injury of the PW2 as grievous i.e. a fracture of

the right parietal bone proves the version of the prosecution.

14 The only submission of the appellant which merits consideration

is that the accused Kuldip had also been injured and no explanation

seems to be forthcoming as to how he had sustained injuries and in the

absence of which the investigation appears to be tainted for which

benefit of doubt has to be given to the accused. For this submission

reliance has been placed upon AIR 1976 SC 2263 Lakshmi Singh and

Others Vs. State of Bihar.

15 This submission of the appellant has to be noted in the context of

the facts of the present case. There is no doubt that accused Kuldip had

been injured but he had been taken to the hospital and his MLC has

been proved through PW6 as Ex. PW6/A noting that he had suffered a

simple injury. Even in his statement under Section 313 of the Cr.P.C

accused Kuldip has not given a counter version which would be in

contrast to the version of the prosecution; only submission being that he

is innocent and falsely implicated. In this background, in view of the

judgment of Amar Malla and Ors. vs. State of Tripura (2002) 7 SCC

256 where it was held by the Supreme Court that merely because the

prosecution has not been able to explain the simple injury suffered by

the accused the otherwise well proven case of prosecution for this lapse

on the part of the investigating officer cannot be thrown out. The

relevant extract reads as under:-

"It is well-settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto, the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eye-witnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the Investigating Officer." 16 The accused persons have been convicted for the offence under

Section 326 read with 34 of the IPC which is based on the concept of

common intention. The testimony of the eye witnesses clearly show that

the all the accused had come to the scene with the intent to accost the

injured and PW2 having explained the role of each and every accused

persons and in these circumstances whether an actual active role has

been attributed to one or the other may not be relevant for the purpose of

examining the "common intention" as contended in Section 34 of the

IPC. All accused persons had a joint purpose.

 17     The conviction calls for no interference.

18     However, keeping in mind the fact that the incident had occurred

in April 1989 i.e. 24 years ago and the accused persons having grown

over the years with their families having extended and they not having

been embroiled in any other incident and the present case also as set up

by the prosecution being a case of a sudden quarrel; this court is inclined

to reduce the sentence

19 Accordingly the sentence of RI 3 years is reduced to RI 18

months with a fine of Rs.5,000/- for each accused; in default of payment

of fine SI two months. The entire fine so realized shall be paid to the

injured Anand Prakash. The Court has been informed that as per the

nominal roll, each of the accused have suffered incarceration for about

10-11 days. Benefit of Section 428 of the Cr.PC be also granted.

20 With this modification, this appeal stands disposed of.

FEBRUARY 08, 2013                             INDERMEET KAUR, J.
A/rb