Ashok Kumar @ Pintu & Ors. vs State Of Delhi
2013 Latest Caselaw 4531 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                     RESERVED ON : 25th SEPTEMBER, 2013
                     DECIDED ON : 01st OCTOBER, 2013

+                         CRL.A. 472/2001
       ASHOK KUMAR @ PINTU & ORS.             ....Appellants
                Through : Mr.M.L.Yadav, Advocate with
                          Mr.Lokesh Chandra, Advocate.
                          VERSUS
       STATE OF DELHI                              ....Respondent
                Through : Mr.M.N.Dudeja, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. Ashok Kumar @ Pintu (A-1), Anil Kumar @ Mota (A-2) and

Narender Kumar (A-3) were arrested in case FIR No.341/92 PS Mehrauli

and sent for trial on the allegations that on 06.10.1992 at about 06.45 P.M.

outside shop of Kanwar Pal Halwai, Ward No.1, Mehrauli, they in

furtherance of common intention inflicted injuries with iron rod and lathi

to Rajesh Kumar and Satish Kumar in an attempt to commit culpable

homicide. The prosecution examined ten witnesses. The Trial Court, on

appreciating the evidence, convicted all of them under Section 308/34 IPC

by a judgment dated 30.06.2001 in Sessions Case No. 17/94. By an order

dated 05.07.2001, they were sentenced to undergo RI for four years each.

Being aggrieved, the appellants have preferred the appeal. It is relevant to

note that A-2 (Anil Kumar) expired during the pendency of the appeal and

proceedings against him were dropped as abated by an order dated

18.11.2010.

2. I have heard the learned counsel for the parties and have

examined the record. The police machinery was set in motion when Daily

Diary (DD) No. 12A (Ex.PW-3/B) recorded at 07.10 P.M. at PS Mehrauli

on getting information about a quarrel at Harijan Basti, Mehrauli. The

investigation was assigned to SI Lal Chand who with Const. Naresh went

to the spot. Daily Diary (DD) No. 14/A (Ex.PW-3/C) was recorded at

08.15 P.M. when Const.Sunil Kumar informed about admission of Rajesh

Kumar in injured condition at Safdarjang Hospital. The Investigating

Officer lodged First Information Report after recording Rakesh Kumar's

statement (Ex.PW-6/A). He gave detailed account of the incident as to

how and under what circumstances the assailants had inflicted injuries to

Rajesh Kumar and Satish Kumar. The assailants were named in the FIR

and specific role was attributed to them. The occurrence happened at

about 06.45 P.M. The FIR was lodged at 09.40 P.M. after sending rukka

(Ex.PW-9/B). There was no delay in lodging the report and it ruled out

fabrication of a false story.

3. PW-5 (Rajesh Kumar) in his Court statement implicated all

the assailants / accused persons and assigned motive for inflicting injuries

as they had not contributed donation at the time of Balmiki Jyanti. He

deposed that A-3 caught hold him from back and A-1 and A-2 caused

injuries with iron rod and lathi. He sustained iron rod blows on his head

and became unconscious. When he regained consciousness, he found an

injury on his left ear also. Despite lengthy cross-examination, no material

discrepancies could be elicited to disbelieve the version given by the

victim. PW-6 (Rakesh Kumar) also corroborated him on material facts

and deposed on similar lines regarding the role played by each assailant in

inflicting injuries to Rajesh Kumar and Satish Kumar. PW-8

(Dr.N.D.Deshpandey) proved Rajesh Kumar's MLC (Ex.PW-8/A) where

the injuries were opined as 'grievous' caused by blunt weapon. There is

no inconsistency between the ocular and medical evidence. The injuries

sustained by Rajesh Kumar are not under challenge. The appellants have

pleaded that he had sustained injuries at some other place and falsely

implicated them due to previous enmity. No such evidence has come on

record to substantiate this fact. The injuries are not self-inflicted or

accidental. The injured were not expected to let the real culprit go scot

free and falsely implicate the accused persons in the absence of any prior

animosity. It is true that PW-2 (Satish Kumar), the other injured, has

opted not to support the prosecution and has exonerated the accused

persons. However, that does not dilute the credibility of the version given

by PW-5 (Rajesh Kumar). The findings of the Trial Court holding the

appellants' guilty for inflicting injuries are based upon fair appraisal of

evidence and require no interference. Apparently, the appellants were

author of the injuries inflicted to Rajesh Kumar.

4. I am not convinced that the prosecution was able to establish

commission of offence under Section 308/34 IPC. It has come on record

that the appellants and the victims had no previous enmity. On the day of

occurrence, the victims were returning to their respective houses after

witnessing Dussehra festival. The accused persons were not aware about

their arrival at the spot and did not anticipate it and it ruled out pre-plan or

meditation. No weapon of offence was recovered from their possession.

The assailants did not inflict repeated fatal blows on the vital organs of the

victims. PW-2 (Satish Kumar) sustained only injuries 'simple' in nature

caused by blunt object. Injuries on the body of Rajesh Kumar were (a)

Clean lacerated wound (CLW) on left ear lobe, tragus & angle of

mandible, (b) Contusion haematoma on left occipital region. PW-1

(Dr.M.K.Mittal), who examined the patient Rajesh Kumar did not notice

any bone injury in his report (Ex.PW-1/A). The victim was discharged

after examination and did not remain admitted in the hospital for long

duration. It appears that a quarrel / altercation took place between both the

parties and in the incident injuries were inflicted to Rajesh Kumar and

Satish Kumar with blunt objects voluntarily. In order to succeed in a

prosecution under Section 308 IPC, the prosecution was to prove that the

injuries to Rajesh Kumar were caused by the appellants with such

intention or knowledge and under such circumstances that if these had

caused death, the act of the appellants would have amounted to culpable

homicide not amounting to murder. The intention and knowledge are

lacking in the present case. The prosecution has established that the

appellants in furtherance of their common intention voluntarily caused

'grievous' injuries with sharp object to Rajesh Kumar and they are

perpetrators of the crime under Section 325/34 IPC.

5. The incident took place on 06.10.1992, A-2 (Anil Kumar)

has since expired. The appellants have suffered agony of trial / appeal for

more than twenty years. They have remained in custody for some duration

before grant of bail. They have clean antecedents and are not involved in

any other criminal activity. The offence has been altered to 325/34 IPC.

There was no previous history of enmity between the parties. The

occurrence was an outcome of a sudden flare without prior planning or

meditation. They deserve extension of benefit of the beneficial legislation

applicable to first offenders. Of course, they can be directed to pay

reasonable compensation to the victims. Taking into consideration all

these mitigating circumstances, it is a fit case where the appellants can be

released on probation of good behaviour. The order on sentence is

modified and instead of sentencing the appellants at once to any

punishment, they are ordered to be released on probation on their

furnishing personal bond in the sum of ` 50,000/-, each with one surety,

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

of two years and to appear and receive sentence when called upon, and in

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

Kumar @ Pintu (A-1) and Narender Kumar (A-3) shall deposit ` 40,000/-

each as compensation before the Trial Court within 15 days. The Trial

Court shall issue notice to the injured / victims - Rajesh Kumar to receive

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

Trial Court record be sent back forthwith with the copy of the order for

compliance.

                                                    (S.P.GARG)
OCTOBER 01, 2013/tr                                   JUDGE