Satya Dev Pandey & Anr. vs State
2013 Latest Caselaw 5398 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 17th September, 2013
                              DECIDED ON : 22nd November, 2013

+      CRL.A. 491/2000

       SATYA DEV PANDEY & ANR.
                                                      ..... Appellants
                         Through :   Mr.D.M.Bhalla, Advocate.

                              VERSUS

       STATE
                                                     ..... Respondent
                         Through :   Mr.Lovkesh Sawhney, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Satyadev Pandey (A-1) and Ramji Pandey (A-2) impugn a

judgment dated 05.08.2000 of learned Additional Sessions Judge in

Sessions Case No.282/1997 arising out of FIR No.697/1996 registered at

Police Station Patel Nagar whereby they were convicted under Sections

308/323/34 IPC. By an order dated 09.08.2000 they were awarded

Rigorous Imprisonment for five years with fine `10,000/- each under

Section 308/34 IPC and Rigorous Imprisonment for one year with fine

`1,000/- each under Section 323/34 IPC. Both the sentences were to

operate concurrently.

2. Allegations against the appellant were that on 15.08.1996 at

about 03.30 P.M. at House No.2099/6A, Gali No.15, Pahari, Prem Nagar,

Delhi, they in furtherance of common intention inflicted injuries to

Krishan Dev Singh, Nand Kumari and Kaushal. The police machinery

came into motion when DD No.30B (Mark 'A) was recorded at Police

Station Patel Nagar at 03.57 P.M. on getting information from PCR about

a quarrel at House No.2103, Gali No.15, Prem Nagar. The investigation

was assigned to HC Pritpal Singh who with Ct.Bhim Sain went to the spot

i.e. House No.2099/6A, Gali No.15, Pahari, Prem Nagar, Delhi, and came

to know that the injured had already been taken to DDU hospital. Kaushal

Kumar who was injured in the occurrence was shifted to RML hospital.

The Investigating Officer collected their MLCs and lodged First

Information Report after recording Krishan Dev Singh's statement

(Ex.PW1/A). During investigation, statements of witnesses conversant

with the facts were recorded. The appellants were apprehended and

arrested. After completion of investigation, a charge-sheet was filed in

the court in which A-1 and A-2 were duly charged and brought to trial.

The prosecution examined 13 witnesses. In their 313 statements, the

appellants pleaded false implication. DW-1 (Krishan Murari Tiwari) and

DW-2 (Dhruva Singh) were examined in defence. On appreciating the

evidence and after considering the submissions of the parties, the Trial

Court by the impugned judgment convicted both the appellants for the

offences mentioned previously. It is significant to note that the trial court

did not take cognizance against Jashoda who was kept in Column No.2 in

the charge-sheet. In the order on charge dated 12.01.1999, the Trial Court

left the question open as Additional Public Prosecutor intended to move

application under Section 319 Cr.P.C. No such application was moved

during trial. It is further relevant to note that the Trial Court deprecated

Investigating Officer for not proceeding against Shiv-Poojan who was

implicated by the prosecution witnesses in their statements recorded under

Section 161 Cr.P.C. The learned Additional Public Prosecutor again

expressed his willingness to move an application under Section 319

Cr.P.C. after the evidence was recorded in the court. However, no such

application was ever moved during trial.

3. Learned counsel for the appellants 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

who had inflicted injuries to the accused persons and against whom a

complaint case was pending in the court of learned Metropolitan

Magistrate in which they were summoned. The prosecution was unable to

establish genesis of the quarrel and was not able to establish that the

appellants used to supply electricity to the complainant or other

neighbours. Vital discrepancies, omissions and improvements in the

evidence of the prosecution witnesses were ignored without valid reasons.

The prosecution witnesses narrated inconsistent version as to the role of

the appellants; the exact place of occurrence; the exact timings and the

manner in which the incident took place. Counsel adopted alternative

argument to take lenient view in the event of dismissal of appeal as the

appellants had already remained in custody for more than four months for

the incident occurred in 1996. Learned Additional Public Prosecutor

urged that the testimony of all the eye-witnesses including that of PW-4

(Kaushal Singh) who was deaf and dumb is consistent and minor

contradictions or improvements which do not affect the core of the

prosecution case are not of that magnitude to discard their version in

entirety.

4. The occurrence took place at around 03.30 P.M. on

15.08.1996 in which Krishan Dev Singh, Nand Kumari and Kaushal

suffered injuries and were taken to Deen Dayal Upadhaya hospital. MLC

(Ex.PW-11/A of Kaushal) records arrival time at the hospital as 04.40

P.M. DD No.30B (Mark A) was recorded at 03.57 P.M. regarding

quarrel at House No.2103, Gali No.15, Prem Nagar, Delhi. The

Investigating Officer recorded victim's statement (Ex.PW-1/A) and

lodged First Information Report at 07.40 P.M. after making endorsement

(Ex.PW-1/A) over it. Krishan Dev who sustained simple injuries on nose

was conscious and oriented and was not admitted in the hospital. In his

statement made to the police at the first instance, Krishan Dev Singh gave

graphic detail of the incident and implicated only A-2 for inflicting

injuries to them. He also narrated the genesis of the quarrel i.e.

appellants' refusal to return the amount paid by the complainant and other

neighbours for supplying electricity to them. The complainant, however,

did not attribute any role to A-1 in the occurrence and even did not claim

his presence at the spot. It appears that subsequently supplementary

statement of the complainant was recorded on 16.08.1996 in which he

implicated A-1 and one Shiv Poojan for inflicting injuries and instigating

A-2. The complainant did not give any plausible reason as to why A-1

and Shiv Poojan were not named at the first instance in the FIR. In the

case of Jail Prakash Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 the

Supreme Court held:-

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The

object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

5. The prosecution examined all the injured and one Shakuntala,

an eye-witness, in the court. They have narrated inconsistent and

conflicting version regarding the role played by A-1 in the occurrence.

The complainant-Krishan Dev Singh deposed that when he, his wife,

Ganga Ram and other neighbours went to Jashoda Devi to lodge

complaint for not providing them electricity or else to refund their charges

paid in advance, A-2 and his wife abused them and declined to refund the

money. Thereafter A-2 gave a danda blow on Nand Kumari's arms and

legs. When he intervened, he was inflicted with lathi blows. A-1 standing

nearby threw a stone upon him which hit on his nose. When his nephew

Kaushal, who was deaf and dumb came there, he was given danda blows

on his face by A-2 along with other persons namely Shiv Poojan etc. He

further deposed that A-1 caught hold of him and A-2 gave a lathi blow on

his body. Accused Shiv Poojan too had exhorted A-2 to kill them. PW-2

(Nand Kumari) deposed that on 14.08.2013 at about 04.00 P.M. she along

with her neighboures had gone to complain disconnection of electricity

facility to them. A-1 and A-2 present in the house abused them and she

came back. On 15.08.1996, when they had gone to the accused persons to

demand their money back or to supply electricity to them, A-2 suddenly

picked-up a lathi and hit her on left hip. A-1 and Shiv Poojan also joined

him. When her husband Krishan Dev intervened, he was beaten up and he

received injuries on nose. Kaushal who arrived at the spot was also

beaten up with lathi on his face. PW-4 (Kaushal Singh) implicated only

A-2 for assaulting him by a danda or an iron rod on his head, chest and

face. PW-3 (Shakuntala) testified that when they had gone to the house of

the accused persons to demand their money back, A-2 brought a lathi

from house and hit two blows on Nand Kumari's body. When her

husband and nephew arrived, both the accused gave beatings to them with

lathi, hockey and fist etc. On scrutinizing the statements of all these

ocular witnesses, it reveals, that they have given contradictory and

conflicting statements regarding the role played by A-1 in the occurrence.

Their statements are not at tandem with the complaint lodged by the

complainant at the earliest with the police. No crime weapon was

recovered during investigation. In my considered view the prosecution

was not able to establish if any specific role was played by A-1 in

inflicting injuries to the victims. Shiv Poojan's involvement was not

investigated and no charge-sheet or application under Section 319 Cr.P.C.

was moved against him. These witnesses have, however, in unison

deposed that the real assailant who caused injuries to them was A-2.

There are no valid or sound reasons to disbelieve the statements of injured

witnesses to that extent. Despite searching cross-examination, no material

discrepancies or contradictions could be elicited on this score. In his 313

statement A-2 miserably failed to establish the plea of alibi and the

defence was out-rightly rejected by the Trial Court. DW-1 (Krishan

Murari Tewari) and DW-2 (Dhruva Singh) claimed on 15.08.1996 the

injured persons had given beatings to A-1 there. They also admitted that

Kaushal sustained injuries on head but it was due to fall from the roof.

Krishan Dev and Nand Kumari sustained injuries due to damaged cement

roof. The accused persons did not produce any medical evidence to

substantiate that any injuries were caused to them in the said occurrence.

In my considered view the prosecution was able to establish beyond doubt

that A-2 was the author of the injuries to the victims.

6. The prosecution did not produce the examining doctors who

prepared the MLCs to ascertain the nature of injuries sustained by the

victims. PW-11 ( J.C.Vashist), record clerk, D.D.U.hospital and Kartar

Singh PW-12, Record Clerk, RML hospital were examined to prove the

MLCs Ex.PW-11/A (prepared by Dr.Rakesh Saha of PW-4- Kaushal) and

Ex.PW-12/A ( prepared by Dr.Pankaj of PW-2-Nand Kumari). They

identified signatures of the concerned doctors on the MLCs. In the cross-

examination, they admitted that neither MLCs were prepared nor the

patients were examined in their presence. No attempt was made by the

prosecution to find out the whereabouts of the examining doctors. Again

the prosecution did not bother to examine any other competent doctor to

give opinion on the basis of the MLCs regarding the nature of injuries

sustained by the victims. PW-1 (Krishan Dev Singh) and PW-2 (Nand

Kumari) sustained simple injuries by blunt object. The nature of injuries

on the person of Kaushal does not find mention in the medical documents

exhibited during trial. The prosecution could not recover the crime

weapon. It has come in evidence that earlier to the incident, the victims

and A-2 were acquainted with each other and lived in the same locality.

There is no history of hostile relations between them. A dispute arose due

to non-supply of electricity to the victims and other neighbours as per

previous arrangements and when the appellants declined to refund the

money collected for supply of electricity. Apparently, it was a sudden

quarrel without any pre-planning and pre-meditation. No deadly weapons

were used in the incident. 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 and may not. In the instant case, the initial

confrontation had taken place with PW-1, PW-2 and other neighbours.

PW-4 (Kaushal) was not present at scene at the time of the said altercation

and his visit to the spot was sudden and unexpected. When he intervened

in the quarrel to support his relatives, he suffered injuries in a sudden

scuffle. A-2 cannot be held liable for committing offence under Section

308 IPC. The prosecution, however, succeeded to prove and establish that

A-2 voluntarily caused simple hurt with blunt object to PW-1, 2 and 4. A-

2's conviction stands altered from Section 308/34 IPC to Section 323/34

IPC. A-2 was ordered to undergo Rigorous Imprisonment for five years

with fine `10,000/- under Section 308/34 IPC and Rigorous Imprisonment

for one year with fine `1,000/- under Section 323/34 IPC. Appeal file

reveals that A-2 remained in custody before enlargement on bail vide

order dated 13.12.2000 for more than four months. Nothing has come on

record that A-2 had criminal antecedents or was involved in any criminal

case after enlargement on bail. The occurrence pertains to the year 1996.

A-2 has suffered ordeal of trial/appeal for about 17 years. Considering

these mitigating circumstances, A-2 is ordered to be released for the

period already undergone by him in custody in this case. He shall,

however, pay the unpaid fine (if any). Since PW-4 (Kaushal) aged about

27 years at the time of incident, who was deaf and dumb suffered injuries

and remained admitted in hospital for five days, A-2 is further directed to

pay Rs.50,000/- as compensation to him. A-2 shall deposit this amount

and fine amount (if any) within 15 days in the Trial Court and it shall be

released to PW-4 (Kaushal) after notice. Benefit of doubt is extended to

A-1 and his conviction and sentence are set aside.

7. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith along with the copy of this order. Copy be

also sent to Superintendent Jail for intimation.

(S.P.GARG) JUDGE November 22, 2013 sa