Shiv Kumar vs State (Nct Of Delhi)
2013 Latest Caselaw 4568 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.A. 305/2009

                                                   Decided on 03.10.2013

IN THE MATTER OF :
SHIV KUMAR                                                ..... Appellant
                             Through: Mr. H.N. Pandey, Advocate with
                             appellant in person.


                       versus

STATE (NCT OF DELHI)                                     ..... Respondent
                             Through: Mr. Rajat Katyal, APP for the State


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The appellant is aggrieved by the judgment dated 28.03.2009

passed by the learned ASJ in a case arising out of FIR No.777/2003

lodged under Section 308 IPC at Police Station: Ashok Vihar, convicting

him under Sections 325/34 IPC and the order on sentence dated

31.03.2009, sentencing the appellant to undergo rigorous imprisonment

for a period of one year and pay a fine of ₹5,000/-, in default thereof, to

undergo simple imprisonment for three months.

2. Before considering the arguments advanced by both sides, the brief

facts of the case are being recapitulated hereinbelow.

3. On 29.12.2003 at about 9:30 AM, the complainant, Shri Naresh

duly accompanied by his sister, Pushpa were going from Jailorwala Bagh

to Ashok Vihar. On the way, the appellant herein, a resident of Lal Bagh

had passed some lewd remarks against the complainant's sister. When

the complainant objected, the appellant blew a whistle and immediately,

2-3 persons had arrived there holding dandas and started beating the

complainant due to which he had sustained injuries on his head, hand,

foot and other parts of the body. The complainant's sister accompanied

him to the police station and a DD entry was prepared at 10:46 PM

(Ex.PW8/B), whereafter Ct.Ugrasen (PW-6) took the complainant in a PCR

van to BJRM Hospital for undergoing the MLC. As per the prosecution, the

appellant could not be arrested and he was declared a proclaimed

offender by the trial court vide order dated 09.06.2006. Subsequently, he

was arrested on the information of a secret informer. The charge-sheet

came to be filed on 18.03.2008 under Section 308 IPC. Charges were

framed on 03.11.2008 and the appellant was charged for the offence

under Sections 308/34 IPC, to which he had pleaded not guilty.

4. In the course of the trial, the prosecution had examined ten

witnesses, including the complainant, Shri Naresh (PW-1),

complainant's sister, Pushpa (PW-2), the Radiologist of BJRM Hospital, Dr.

Shipra Rampal (PW-5), Ct. Ugrasen (PW-6), ASI Anita (PW-8) and the

Investigating Officer, SI Harun Ahmed (PW-10). After the evidence of the

prosecution was concluded, the statement of the appellant was recorded

under Section 313 Cr.PC, wherein he had denied the evidence put to him

and two witnesses were examined on his behalf, namely, Shri Noor Mohd.

(DW-1) and Shri Rajman (DW-2). After examining the evidence on record

and hearing the arguments on behalf of the appellant and the

prosecution, the trial court had opined that the appellant could not be

indicted under Section 308 IPC and it was a fit case for convicting him

under Sections 325/34 IPC. Following the aforesaid judgment of

conviction, the order on sentence came to be passed on 31.03.2009,

convicting the appellant to undergo rigorous imprisonment for a period of

one year with a fine of `5,000/- and in default of payment of fine, to

undergo simple imprisonment for a period of three months.

5. Learned counsel for the appellant has assailed the impugned

judgment on the ground that the trial court had failed to take into

consideration the fact that both, the complainant and the accused were

residents of the same locality and had also known each other, but despite

the same, surprisingly, while giving their statements to the Investigating

Officer or even at a later stage, the complainant and his sister could not

tell the name of the appellant. He, therefore, states that this had cast a

shadow of doubt as to the identity of the appellant and the trial court

failed to take into consideration the aforesaid aspect. It is further

canvassed by the learned counsel for the appellant that the statements of

the complainant(PW-1) and his sister(PW-2) are in contradiction to the

statements of Ct. Ugrasen (PW-6) and the Investigating Officer, SI Harun

Ahmed (PW-10). In this regard, he refers to their testimony to claim that

while PW-1 and PW-2 had stated that they had first visited the police

station with a complaint about the occurrence of the incident in question

and thereafter, the injured had proceeded to the hospital for undergoing a

MLC, PW-6 and PW-10 had deposed to the contrary and there was

sufficient reason to shake the credibility of PW-1 and PW-2, whose

deposition ought to have been held as unreliable.

6. It is next argued by the learned counsel for the appellant that

despite the fact that both, the appellant and the complainant were

residents of the same locality and it was alleged that a lot of people had

gathered at the spot at the time of the incident, not a single public

witness had been named and PW-2, sister of the complainant(PW-1)

cannot be treated as an independent witness for purposes of indicting the

appellant.

7. On the other hand, learned APP for the State has supported the

impugned judgment and submits that the same does not deserve any

interference. He denies the contention of the other side that PW-1 and

PW-2 had not named the appellant when the DD entry was made on the

date of the incident. He refers to the aforesaid DD entry (Ex.PW8/B) from

the trial court record and points out that the appellant has been duly

mentioned therein and described as "Thekedar". He further points out

that in the course of recording their testimony, PW-1 and PW-2 had

identified the appellant and therefore, his identity cannot be stated to be

under dispute. Learned APP also refers to the contents of the FIR

registered on the complaint of PW-1, wherein the complainant had stated

that he knew the appellant by the name of "Thekedar" and the said

person was a resident of Lal Bagh and he could identify him.

8. Learned APP denies the fact that there is any contradiction between

the testimony of PW-1 and PW-2 on one hand and PW-6 and PW-10 on

the other hand and states that if the same are read in a seriatim, the

sequence of events would fall into place and there is no scope of any

doubt about the occurrence of the incident and the role of the appellant.

Lastly, he submits that the mere absence of any public witness cannot be

a ground to acquit the appellant for the reason that the depositions of

PW-1 and PW-2 read in conjunction with the depositions of PW-6 and

PW-10 and the MLC of the victim would clearly corroborate the

prosecution version as to the occurrence of 29.12.2003 and the role

attributed to the appellant in that regard.

9. This court has carefully perused the impugned judgment and

examined the trial court record, including the evidence, both ocular and

documentary. After scrutinizing the trial court record, it clearly emerges

that the trial court had considered the submissions made by the counsel

for the appellant on the same lines as have been canvassed before this

court and it had concluded that the testimony of PW-1 and PW-2 could

not be discounted merely because PW-2 is the sister of the

complainant(PW-1), more so when both their testimonies were found to

be straightforward and cogent and nothing material had emerged from

their cross-examination to assist the appellant. In fact, a perusal of the

cross-examination of PW-1 reveals that though it had been put to him by

the defence that there was some quarrel between him and the appellant

in the past, prior to the date of the incident, the same had been

categorically denied by PW-1 in his testimony. The inevitable conclusion

of the trial court was that there was no reason whatsoever for PW-1 and

PW-2 to falsely implicate the appellant and there is no justification to

disbelieve them and discard their testimony. This Court concurs with the

aforesaid findings of the trial court and finds no justification to overturn

them.

10. Additionally, while perusing the depositions of PW-1 and PW-2, it is

noticed that both the said witnesses had correctly identified the appellant

as he was present in the Court at that time and therefore there can be no

quarrel as to his identity. The evidence on record reveals that not only

did PW-1 and PW-2 name the appellant and describe him as "Thekedar",

they had also stated that they could identify him. Therefore, for the

counsel for the appellant to contend that being residents of the same

area, it was not believable that PW-1 and PW-2 did not know the

appellant, is found to be devoid of merits. On the contrary, a perusal of

the DD entry as also the contents of the FIR, both establish the fact that

the appellant had been duly named and identified as "Thekedar" therein

and he was the same person who had assaulted the complainant,

alongwith 2-3 other persons.

11. The next contention of the counsel for the appellant is that there

are material contradictions in the depositions of PW-1 and PW-2 on one

hand and PW-6 and PW-10 on the other hand. It is relevant to note that

the incident in question had taken place on 29.12.2003, whereas the

testimony of the aforesaid witnesses was recorded in November, 2008,

i.e., after almost five years from the date of the incident. In such

circumstances, if the testimony of PW-6 did not exactly match with the

testimony of the Investigating Officer, PW-10, that itself is not

considered sufficient to discard their entire testimony. The submission of

the counsel for the appellant that PW-6 had turned hostile and therefore,

he had to be cross-examined by the learned APP can also not be of any

assistance to the appellant for the reason that PW-6 had himself stated

that he had forgotten certain facts because of the lapse of time and

further it is noticed that SI Harun Ahmed (PW-10) had narrated the exact

sequence of events. In any case, the discrepancy in the sequence of

events as per the appellant is that while PW-6 had stated that PW-1 and

PW-2 were taken from the spot directly to the hospital for treatment, PW-

1, PW-2 and PW-10 had stated that they had gone to the police station

first to record the complaint and thereafter, the injured had been taken in

a PCR van to the hospital for preparation of MLC. The said minor

inaccuracy in the testimony of PW-6 cannot shake the very foundation of

the entire prosecution case to their detriment.

12. The claim of the learned counsel for the appellant that there had

been inordinate delay in registering the FIR has to be seen in the light of

the incident that had occurred on 29.12.2003. As per the complainant

(PW-1), it was at about 9:30 AM on 29.12.2003 that the appellant had

started passing lewd remarks against his sister (PW-2), which was

followed by beatings given by the appellant and his associates to the

complainant and his sister. The DD entry reveals that the complainant

and his sister had reached the police station after about one hour at

10:46 AM and they were sent in a PCR van to BJRM Hospital. A perusal of

the MLC of PW-1 reveals that he had arrived at BJRM Hospital with Ct.

Ugrasen (PW-6) at 11:30 AM, i.e., in less than one hour from the time

when PW-1 and PW-2 had reached the police station with a complaint.

Dr. Shipra Rampal (PW-5) had deposed that the injured had suffered a

fracture on the left forearm and the left foot. In other words, the injuries

suffered by the complainant were grievous in nature. After the MLC was

undertaken and the doctor had declared the injured fit for his statement

to be recorded, the Investigating Officer had recorded his statement and

then prepared a Rukka in the hospital and forwarded the same to the

police station through Ct. Ugrasen (PW-6).

13. A perusal of the FIR reveals that the same was registered at about

3:55 PM on the same day. Considering the fact that the victim had

undergone an X-ray and was administered treatment at the hospital, it is

not improbable that the said process would have taken at least another 2-

3 hours before his statement could have been recorded for the purpose of

registering the FIR. In view of the aforesaid sequence of events that have

unfolded themselves on a perusal of the trial court records, this Court is

of the opinion that merely because the incident in question had occurred

at 9:30 AM and the FIR came to be registered at 3:55 PM, cannot be

reason enough to create any suspicion about the manner of registration of

the FIR and nor can it be said that there was inexplicable delay in the

registration of the FIR.

14. In view of the aforesaid facts and circumstances and having

carefully perused the impugned judgment in the light of the evidence on

record, this Court is of the opinion that neither is there any illegality or

irregularity in the impugned judgment, nor is there any non-appreciation

or mis-appreciation of facts by the trial court that deserves interference in

appeal. Further, taking into consideration the nature of the injuries

suffered by the injured, the trial court had arrived at a conclusion that it

was not a case where provisions of Section 308 IPC were attracted and

had indicted the appellant under Section 325 IPC. The said provision

contemplates punishment with imprisonment for a term that may extend

to seven years alongwith fine. This Court is of the opinion that as against

the aforesaid quantum of sentence, the appellant has been awarded a

very light sentence of rigorous imprisonment of one year and a fine of

`5,000/- and there is no justification for interfering either in the impugned

judgment of conviction or the order on sentence. Accordingly, the present

appeal is dismissed as being devoid of any merits. The appellant, who is

present in Court, is directed to be taken into custody and sent to jail to

serve the sentence awarded by the trial court.

                                                           (HIMA KOHLI)
OCTOBER      03, 2013                                         JUDGE
rkb/mk