Delhi High Court

Ramesh Kumar & Ors. vs State on 4 September, 2013

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 13th AUGUST, 2013
                               DECIDED ON : 4th SEPTEMBER, 2013

+                        CRL.A. 324/2001

       RAMESH KUMAR & Ors.                               ..... Appellants
                         Through :    Mr.R.N.Mittal, Sr.Advocate with
                                      Mr.Ankit Goal, Advocate.

                         versus

       STATE                                          ..... Respondent
                         Through :    Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Ram Kishan, Ramesh Kumar, Rajesh Kumar, Suresh, Rajbir

& Krishan were arrested in case FIR No. 13/1991 registered at PS Delhi

Cantt and sent for trial for committing offences punishable under Sections

302/325/34 IPC on the allegations that on 09.01.1991 at 06.30 P.M. at

Stall No.8, Sadar Bazar, Delhi they formed an unlawful assembly and in

furtherance of their common object committed murder of Jagdish by

inflicting injuries with lathies on his body. They also caused injuries to

Jagjit Singh. Both Jagjit Singh and Jagdish were taken to DDU Hospital.

Jagdish was referred to Willington Hospital and on 16.01.1991 he

succumbed to the injuries. The Investigating Officer lodged First

Information Report after recording Jagjit Singh's statement (Ex.PW-6/1).

During the course of investigation, the accused persons were apprehended

and arrested. The crime weapon was recovered. The Investigating Officer

recorded statements of the witnesses conversant with the facts and after

completion of investigation, a charge-sheet was submitted against them in

the Court. The prosecution examined fourteen witnesses. In their 313

statements, the accused persons pleaded false implication. On appreciating

the evidence and after considering the rival contentions of the parties, the

Trial Court, by the impugned judgment, convicted Ram Kishan under

Section 302 IPC & 325/34 IPC. Ramesh Kumar, Suresh and Krishan were

held guilty under Section 325/34 IPC. Rajesh Kumar and Rajbir were

acquitted of the charges. It is significant to note that the State did not

challenge their acquittal.

2. Ram Kishan impugned the judgment in Crl.A. 371/2001

before this Court which was decided on 18.08.2009. Conviction of the

appellant - Ram Kishan under Section 302 IPC was modified and altered

to Section 304 part-I IPC while maintaining conviction under Section

325/34 IPC. He was sentenced to undergo RI for ten years under Section

304 part-I IPC. It is further relevant to note that during the pendency of

the appeal Ramesh Kumar (the appellant) expired and proceedings against

him were dropped as abated on 13.08.2013.

3. The appellants' counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and the

judgment is based upon conjectures and surmises. PW-1 (Amrik Singh),

PW-4 (Nanak Singh), PW-5 (Braham Dutt) and PW-9 (Neer Singh)

resiled from their statements and did not support the prosecution. PW-6

(Jagjit Singh) gave a vague statement that after sustaining injuries they

fell down. He did not elaborate as to which of the appellants had inflicted

which injury on his body. Recovery of lathi is doubtful. Jagjit Singh was

conscious and oriented and was discharged on the same day. There are

over-writings on the MLC (Ex.PW-8/A) and Radiologist was not

examined to prove fracture on Jagjit's body. The injuries were not

'grievous' in nature. Learned counsel adopted an alternative contention to

release the appellants on probation, if found guilty. Learned Addl.Public

Prosecutor urged that there is no valid reasons to discard the PW-6 (Jagjit

Singh)'s testimony who was injured in the incident.

4. I have considered the submissions of the parties and have

examined the record. Ram Kishan was convicted under Section 302 IPC

on the same set of evidence. In the Crl.A. 371/2001 before this Court his

conviction under Section 302 IPC was altered to 304 part-I IPC. The said

conviction was based primarily on the statement of PW-6 (Jagjit Singh)

and it was accepted and believed by this Court. There are no sound

reasons to disbelieve him as he sustained injuries in the incident and was

taken to DDU Hospital from the spot. Number of injuries sustained by

him confirms his presence at the spot. He had no ulterior motive to falsely

rope in the accused and to let the real culprit go scot free for the injuries

caused to him and his brother Jagdish. This Court in Crl.A. 371/2001

confirmed Ram Kishan's conviction under Section 325/34 IPC. The First

Information Report was lodged on the statement Ex.PW-6/1. The

occurrence took place at about 06.30 P.M. Rukka (Ex.PW-12/1) was sent

for lodging the First Information Report at 08.15 P.M. without any delay.

The FIR is a very material document on which the entire case of the

prosecution is built. In his statement (Ex.PW-6/1) given at the first

instance to the police the victim Jagjit Singh gave graphic details as to

how and under what circumstances, the assailants inflicted injuries to him

and his brother Jagdish. The appellants were named and specific role was

attributed to them. He also assigned motive to the assailants to inflict

injuries as on that day at 06.00 A.M. a quarrel had taken place between

Ram Kishan and Jagidsh over a trivial issue. While appearing as PW-6 in

his Court statement Jagjit proved the version given to the police without

variation. His testimony could not be shattered on material facts in the

cross-examination. His ocular testimony has been corroborated by

medical evidence. PW-8 (Dr.Umed Singh) has proved MLC (Ex.PW-8/A)

prepared by Dr.Mitra Basu. As per the MLC, injuries were 'grievous' in

nature caused by blunt object. PW-8 (Dr.Umed Singh) had medically

examined Jagjit Singh and found evidence of fracture left scapular and

ulnar bone of right forearm. His observations on MLC (Ex.PW-8/A) are

Ex.PW-8/B. In the cross-examination, he elaborated that fracture can be

deducted on clinical examination as well. The word 'grievous' was

incorporated in MLC (Ex.PW-8/A) on the basis of report of the

Radiologist. He was fair enough to admit that the word 'grievous' was not

written in his presence. It is true that PW-4 (Nanak Singh), PW-5 (Braham

Dutt) and PW-9 (Neer Singh) have resiled from their previous statements

and have not opted to support the prosecution on all material facts but that

does not dilute the PW-6 (Jagjit Singh)'s version. PW-9 (Neer Singh),

nevertheless, deposed that on 09.01.1991, he had gone to meet Jagdish at

Delhi Cantt. At about 06.30 P.M. all the accused came in a tempo at

Jagdish's shop. The accused Krishan then called Jagdish and he went

towards him (the accused). He heard that someone had given a lathi blow

to Jagdish. He was about 20 steps away from that place and was not aware

as to who had inflicted the lathi blows to him (Jagdish). When he reached

the spot, he saw accused Krishan giving a lathi blow to Jagdish. He asked

Krishan not to assault Jagdish after he fell down. Krishan then left Jagdish

and gave a lathi blow on his back and left hand. The testimony of this

witness establishes presence of Krishan at the spot with co-accused

persons. It is settled legal proposition that statement of hostile witnesses

cannot be rejected in toto. The evidence of such witnesses cannot be

treated as effaced or washed off the record altogether. It can be accepted

to the extent that their version is found to be dependable, upon a careful

scrutiny thereof. Statement of PW-9 (Neer Singh) can be taken in to

consideration to the extent it is in consonance with the testimony of PW-6

(Jagjit Singh). In Crl.A. 371/2001 this Court observed that PW-6 (Jagjit

Singh) had given an exaggerated version and for that reason Ram

Kishan's conviction was altered to 304 part-I IPC. However, his testimony

was believed for conviction under Section 325/34 IPC. I find no reason to

disbelieve him qua the appellants' involvement/ complicity in the

incident.

5. In the case of 'State of Uttar Pradesh vs.Naresh and Ors.',

(2011) 4 SCC 324, the Supreme Court held:

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

6. In the case of 'Abdul Sayed Vs.State of Madhya Pradesh',

(2010) 10 SCC 259, the Supreme Court held :

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".

7. The conviction of the appellants under Section 325/34 IPC is

based upon fair appraisal of the evidence and no interference is called for.

The appellants have been sentenced to undergo RI for one year with fine `

8,000/- each. The incident took place in 1991. Both the appellants have

remained in custody for some period in this case after their arrest and

before grant of bail. They have no criminal antecedents and are not

involved in any other criminal case. There was no animosity/ enmity

between the victims and the assailants. The altercation had taken place in

the morning over a trivial issue. The appellants were not held guilty for

inflicting injury to the deceased Jagdish. Rajesh Kumar and Rajbir

arrested in this case remained in custody for some period before acquittal.

Ramesh Kumar has expired during the pendency of the appeal. No useful