Sunil Sharma vs State
2013 Latest Caselaw 3999 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of decision: September 09, 2013
+                         CRL.A.219/2004
      SUNIL SHARMA                                  ..... Appellant
               Represented by:         Mr.Saahila Lamba, Advocate/
                                       Amicus Curiae.

                                       versus

      STATE                                       ..... Respondent
                    Represented by:    Mr.Pawan Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

PRADEEP NANDRAJOG, J. (Oral)

1. Since none appears for the appellant Ms.Saahila Lamba, Advocate on the panel of Delhi High Court Legal Services Committee has been requested to assist the Court on behalf of the appellant.

2. Fee of learned Amicus Curiae Ms.Saahila Lamba, Advocate shall be paid by the Delhi High Court Legal Services Committee.

3. It was April 08, 1999. Dr. Tara Chand PW-5, went to PS Dabri and made a statement Ex.PW-5/A on basis whereof FIR for offences punishable under Section 308/34 IPC was registered against appellant Sunil Sharma, s/o Om Prakash and two other persons named Puran Chand and Vinod Kumar.

4. As per the statement Ex.PW-5/A, Dr.Tara Chand stated that on April 06, 1999 he had purchased saria (iron rod) from the shop owned by the appellant Sunil Sharma at 5.00 PM. The appellant had assured to send the

saria as per specifications required at his residence where construction work was on. When the saria reached the residence of Dr.Tara Chand it was not up to the specifications and therefore, accompanied by his brother-in-law Kartar Singh PW-4, he went to the shop of the appellant to sort out the issue. The appellant insisted of having sent saria of the requisite specifications. Enraged, appellant along with his co-accused associate Puran Chand and Vinod Kumar started beating him during the assault, appellant inflicted a saria blow on his i.e. Dr.Tara Chand's head, who was removed to Safdarjung Hospital where a doctor examined him.

5. The appellant and co-accused Puran Chand and Vinod Kumar were sent for trial for having committed offences punishable under Section 308/34 IPC.

6. It is apparent that the fate of the case of the prosecution would hinge upon the testimony of Dr.Tara Chand PW-5 and Kartar Singh PW-4.

7. Both witnesses deposed as per the indictment. Tara Chand stood by his statement Ex.PW-5/A on basis whereof the FIR was registered.

8. Dr.R.P.Arora PW-1, deposed that he was on duty at Safdarjung Hospital on April 06, 1999 when a doctor working under him examined Dr.Tara Chand and prepared the MLC Ex.PW-1/A.

9. The MLC Ex.PW-1/A records that a 2½ inch long clear lacerated wound was found on the scalp of Dr.Tara Chand. The injury was simple in nature. It was caused by a blunt object.

10. Holding Dr.Tara Chand and Kartar Singh as trustworthy witnesses, influenced by the fact that a saria was used as the weapon to inflict an injury on the vital part of the body i.e. the head, vide impugned judgment dated February 26, 2004 the appellant Sunil Sharma has been convicted for the

offence punishable under Section 308 IPC. Co-accused Vinod Kumar and Puran Chand alias Raj have been convicted for causing voluntary hurt to Dr.Tara Chand i.e. for having committed the offence punishable under Section 323 IPC.

11. Vide order on sentence dated February 26, 2004, whereas appellant has been sentenced to undergo imprisonment for three years, the two co-accused have been let off with a fine in sum of `1,000/- each.

12. With the aid of learned Amicus Curiae Ms.Saahila Lamba, I have perused the testimony of Kartar Singh PW-4 and Dr.Tara Chand PW-5. I find that Dr.Tara Chand PW-5 has deposed in complete harmony with his statement Ex.PW-5/A on basis whereof the FIR was registered. Kartar Singh has corroborated. Since neither Dr.Tara Chand nor Kartar Singh were shaken during cross-examination I have no reason to disbelieve their testimony.

13. Learned counsel Ms.Saahila Lamba would urge that the evidence establishes that the incident took place at 9.00 PM (as per the testimony of Dr.Tara Chand and Kartar Singh) for the reason Kartar Singh claimed to have gone to the shop of the appellant and had placed an order for saria at 5.00 PM; the saria as per the specification was to be delivered to the house of Kartar Singh; it was delivered after 5.00 PM; since Dr.Tara Chand was of the opinion that the saria was not of the specification he went to the shop of the appellant. This was around 9.00 PM. Learned Amicus further points out that from the testimony of Tara Chand and Kartar Singh it is apparent that there was some hot exchange of words. Of course, counsel would hasten to add that while deposing, Dr.Tara Chand and Kartar Singh would give a one-sided version. Referring to the MLC PW-1/A learned counsel

would urge that the injury was recorded to be a simple injury. Learned Amicus would further highlight that the MLC does not even record that due to the wound being ruptured stitches had to be put.

14. On a perusal of the testimony of Dr.Tara Chand and Kartar Singh, it is apparent that an incident took place all of a sudden without any prior motive. It is not the case of the prosecution that the appellant had any enmity with the victims. It appears to be a case where Dr.Tara Chand stood by his accusation that the appellant had sent saria which was not of the required specification and the appellant stuck to his version that the saria sent by him was of the requisite specification.

15. That offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstance that if by the act death would have resulted, the accused would be guilty of culpable homicide not amounting to murder.

16. In the instant case the intention of the appellant would at best be to beat the victim. Evidence establishes that during the verbal spat, in a sudden burst of anger, the appellant inflicted a saria blow on the head of Dr.Tara Chand; but not very forcefully. Besides, the time being 9.00 PM and it being dark also has to be kept in mind. Under the circumstances it has to be held that the offence committed by the appellant is not the offence punishable under Section 308 IPC but the offence punishable under Section 324 IPC because of the fact that an iron rod i.e. saria would be a dangerous weapon. The hurt caused to the victim was obviously voluntary.

17. Accordingly, the judgment and order dated February 26, 2004 is modified. Appellant is acquitted for having committed an offence punishable under Section 308 IPC. But he is convicted for having

committed an offence punishable under Section 324 IPC.

18. On the subject of sentence to be imposed upon the appellant, I find from the Nominal Roll handed over in Court today that the appellant has undergone a sentence for a meagre period of 6 days.

19. The incident took place on April 06, 1999 i.e. more than 14 years ago. The Nominal Roll would evidence that the appellant has not been sent to Jail either as an under trial or as a convict for having committed any other offence.

20. From the facts noted hereinabove it is apparent that Sunil Sharma, the appellant, was engaged meaningfully in life carrying on his business. Instant incident appears to be his solitary brush with the law.

21. For the offence committed by the appellant, I sentence him to undergo simple imprisonment for a period of one year but I simultaneously exercise the powers under the Probation of Offenders Act, 1958 and thus suspend the sentence directing the appellant to be released on probation requiring him to maintain good conduct for a period of one year and for which he would execute a bond before the learned Trial Court.

22. Order on sentence dated February 26, 2004 passed by the learned Trial Judge is modified as above.

23. Exercising power under Section 357 Cr.PC I direct the appellant to compensate Dr.Tara Chand in sum of `25,000/- (Rupees Twenty Five Thousand only).

24. The SHO of the concerned Police Station would ensure that the compensation is paid by the appellant to Dr.Tara Singh.

25. Since the appeal has been disposed of with assistance of learned Amicus Curiae, the SHO of the concerned Police Station is directed to serve

a copy of instant decision on the appellant and for which the Registry would supply two sets of certified copies of the decision to the learned counsel for the State.

26. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

SEPTEMBER 09, 2013 rk