Rajbir Singh vs State
2014 Latest Caselaw 1815 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Date of Decision: 03.04.2014

                                           CRL. A. 752/2010
RAJBIR SINGH                                                           ..... Appellant
                         Through:          Mr. Hans Raj Singh, Adv.

                                               versus

STATE                                                                  ..... Respondent
                         Through:          Ms. Ritu Gauba, APP.

+                                          CRL.A. 753/2010

HARPAL SINGH                                                           ..... Appellant
                         Through:          Mr. Hans Raj Singh, Adv.

                                               versus

STATE                                                                  ..... Respondent
                         Through:          Ms. Ritu Gauba, APP.

+                                          CRL.A. 754/2010

NARENDER SINGH                                                         ..... Appellant
             Through:                      Mr. Hans Raj Singh, Adv.

                                               versus

STATE                                                                  ..... Respondent
                         Through:          Ms. Ritu Gauba, APP.
                                           CRL. A. 429/2014
JAIPAL SINGH                                                           ..... Appellant
                         Through:          Mr. Hans Raj Singh, Adv.

                                               versus

STATE                                                                  ..... Respondent
                         Through:          Ms. Ritu Gauba, APP.

Crl. A. Nos.752 of 2010, 753 of 2010, 754 of 2010 & 429/2014           Page 1 of 13
 CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                              JUDGEMENT

V.K. JAIN, J. (Oral)

On 28.8.2005, on receipt of copy of DD No.45B, Head Constable

Shailender Singh of Police Station Saraswati Vihar reached G-Block, Bihari

Chowk, Shakurpur, where he came to know that the injured persons had been

taken to BJRM Hospital by PCR van. When the aforesaid Head Constable

reached the hospital, Devender, Manish and Prem Singh were found admitted

there in injured condition. He recorded the statement of the complainant Prem

Singh who inter alia told him that he was residing in Shakpurpur along with his

uncle Devender and his cousin Manish and all of them were working in

Chaudhary Fashion at E-16/224, Tank Road, Bapa Nagar, Karol Bagh. He further

stated that earlier all of them were working with H.S. Garments owned by Shri

Harpal Singh and about 5-6 months ago they had left the employment of Mr.

Harpal Singh and taken up the employment with Laxman Chaudhary who also

was earlier working with Harpal Singh and had started his own factory after

resigning from there. He alleged that since the time they left the service of Harpal

Singh, he had become inimical to them and had been threatening them. He further

alleged that at about 11:00 p.m. on 28.8.2005, when they were coming to G-

Block, Shakurpur and reached Bihar Chowk, Harpal Singh, his brother Narender,

his uncle Jaipal and Rajbir, all of whom were armed with iron saria (rod) stopped

them on the way and attacked them with saria saying simultaneously that they

would tell them how to work with Laxman. He also alleged that Harpal Singh

gave saria blow to him. Rajbir Singh gave saria blow to his cousin Manish and

Jaipal and Narender gave saria blow to his uncle Devender. Somehow saving

their lives they ran towards police station. On the aforesaid complaint an FIR

under Sections 308/34 of IPC was registered.

2. All the four (4) persons named above were chargesheeted. On 3.9.2007,

the appellants were charged under Sections 308/34 of IPC to which they pleaded

not guilty. The prosecution thereupon examined ten (10) witnesses in support of

its case whereas three (3) witnesses, DW1 to DW3, including the appellant Harpal

Singh were examined in defence.

3. The complainant Prem Singh came in the witness box as PW6 and inter

alia stated that the accused Harpal was annoyed with them on account of their

having shifted to the factory of Laxman Chaudhary and had been threatening with

dire consequences in case they did not join his factory. He further alleged that on

28.8.2005 at about 11:00 p.m., he along with his uncle Devender and cousin

Manish was returning from the factory of Laxman Chaudhary and when they

reached Bihari Crossing in the area of Shakurpur all the four (4) accused were

found present on the side of the road with iron rods. They said that they would

teach them as to how they were working at the factory of Laxman Chaudhary and

then started beating them. Harpal inflicted iron rod blow on his head as a result of

which he became unconscious. Rajbir inflicted iron rod blows on Manish whereas

Jaipal and Narender caused injuries to Devender.

4. PW7 Manish is the cousin brother of the complainant. He corroborated the

deposition of the complainant as regards the appellant Harpal threatening them for

their having joined Laxman Chaudhary and the appellants causing injuries to them

with sarias in the night of 28.8.2005.

PW5 Devender is the uncle of the complainant. He also corroborated the

deposition of the complainant as regards appellant Harpal Singh being annoyed

with them as also with respect to their having been injured with sarias in the night

of 28.8.2005.

5. PW1 Dr. Neeraj Chaudhary proved the MLCs of Manish, Prem Singh and

Devender.

PW3 Dr. Shipra Rampal proved the X-Ray PW3/A in respect of Manish

who had no bone injury. She also proved X-Ray in respect of Devender and found

it to be a doubtful case of fracture.

PW9 S.I. Ram Saran inter alia stated that the accused Narender Singh

voluntary got recovered a saria from the corner of the room on the first floor of

House No.E-57, JJ Colony, Shakurpur. Similarly Jaipal Singh also got recovered

a saria from a room on the first floor of the aforesaid house.

In their respective statements under Section 313 of Cr.P.C., the appellants

denied the allegations against them and claimed to be innocent.

6. DW1 Dr. G.N. Sukhwani stated that he had examined the injured Jaipal

Singh, Rajbir, Khazan Singh, Harpal Singh and Narender Singh in his clinic on

29.8.2005 and noticed that Jaipal Singh had injury on his wrist whereas the other

persons had head injuries. According to him the certificates Ex.DW1/A to

DW1/D were issued by him in this regard.

DW2 Khazan Singh stated that the injured persons had taken Rs.20,000/-

each as advance from Shri Harpal Singh and on 28.8.2005, he had gone to the

factory of Chaudhary Fasions with Harpal Singh so that Harpal Singh could seek

return of the advance which he had paid to them. A quarrel ensued there but the

matter was pacified by the proprietor of Chaudhary Fashions and they agreed to

repay the entire advance amount by evening. He further stated that at about 11:00

p.m. Devender, Prem Singh, Amrish and Manish called them from their house. As

soon as Narender and Rajbir came out from the room Devender and Manish gave

saria blow on the head of Narender and Jaipal. Manish and Prem also hit danda

on the hand of Jaipal whereas Amrish and Prem Singh hit Harpal Singh on his

head using a saria for the purpose. He further stated that neighbours thereupon

gathered at the spot, snatched dandas and sarias from the above-referred persons

and gave beatings to them as a result of which Manish, Amrish, Prem and

Devender received injuries. The police was informed by someone and Manish,

Amrish, Prem and Devender were taken to a Government Hospital whereafter they

went to Dr. Sukhwani's clinic where they were medically examined.

7. The appellant Harpal Singh came in the witness box as DW3 and stated

that he had given advance of Rs.20,000/- each to Manish, Prem Singh, Devender

and Amrish. He further stated that on 28.8.2005, he along with Khazan Singh

went to Chaudhary Fashions where the above-referred persons started quarrelling

with them but they were pacified by the proprietor of Chaudhary Fashions and

they agreed to repay the advance amount by evening. He claimed that at about

11:00 p.m. on that day, he along with Jaipal Singh, Narender, Rajbir and Khazan

Singh was present in his house when Devender, Prem Singh, Amrish and Manish

came there and called them outside. As soon as they reached verandah Devender

and Manish hit them with sarias. On hearing their shouts he, Jaipal Singh and

Khazan Singh also went out in the verandah. Prem Singh and Manish attacked

them with danda and lathi and all of them except Jaipal sustained injuries whereas

Jaipal sustained wrist injuries due to beatings given by the aforesaid persons. He

claimed that on alarm being raised by them, people of the locality gathered there

and snatched the danda and lathis from the hands of the aforesaid persons and

gave beatings to them. He claimed that since Khazan Singh and Rajbir were badly

hurt he took them to Dr. Sukhwani's clinic where they were medically examined

and were advised X-rays at Shakti Super Siagnostic Centre, Shakti Nagar. He also

alleged that when the case was registered against them he made complaints

Ex.DW3/A to the ACP and the DCP whereas one copy of the complaint dated

21.9.2005 was given in the office of the SHO, Police Station Saraswati Vihar.

8. Vide impunged judgement dated 1.6.2010, all the appellants were

convicted under Sections 308/34 of IPC and vide impugned Order on Sentence

dated 4.6.2010, they were sentenced to undergo RI for three (3) years each and to

pay fine of Rs.2,000/- each or to undergo SI for six (6) months each in default.

Being aggrieved from their conviction and sentence awarded to them, the

appellants are before this Court by way of these appeals.

9. The main question which comes up for consideration is as whether charge

under Section 308 of IPC is made out in the facts of the case. It was held by the

Hon'ble Supreme Court in Ved Kumari and another v. State and another

[96(2002) DLT 820] that in order to constitute offence under section 308 IPC it

must be proved (i) that the accused committed an act; (ii) that the said act was

committed with the intention or knowledge to commit culpable homicide not

amounting to murder and (iii) that the offence was committed under such

circumstances if the accused by that act had caused death he could have been

guilty of culpable homicide. It was further ruled that intention is a question of fact

which is gathered from the acts committed by the accused and knowledge means

awareness of the consequences of the act.

In Velu lia Javelu v. State [2004 Crl.LJ 3783], when the prosecution

witnesses were unloading the iron rods after parking their lorry in front of the

factory, the accused came there in a van, questioned PW2 for parking his lorry in

such a way which was preventing his vehicle from coming snide the factory, and

that resulted in an altercation between them. Within a few minutes the accused

armed with an iron pipe hit on the back side scalp of PW2. It was held that since

the appellant caused the blow in a spur of moment and there was no proper

planning or pre-meditation, the offences punishable under Section 308 of IPC was

not made out and the appellant was guilty only of offence punishable under

Section 324 thereof

In Bishan Singh and another v The State [(2007) 13 SCC 65, the injured

suffered as many as seven injuries including three lacerated wound out of which

two were on the scalp and one was on the right forehead. He also had a fracture

with dislocation of wrist joint. The Apex Court, however, felt that the accused

could not be convicted under Section 308 of IPC and the case would fall under

Section 323 and 325 thereof.

10. There is no witness of seizure of iron sarias from the appellants Narender

Singh and Jaipal. Even the Investigating Officer, in his examination in chief, did

not refer to the recovery of any saria at their instance and it was only during the

cross examination that on suggestion of learned Additional Public Prosecutor that

he admitted that accused Narender Singh got recovered sarias from his house E-

57, JJ Colony, Shakarpur from a corner of a room on the first floor, Jaipal also got

recovered saria from the same house, from the corner of a room, on the first floor.

Thus, the alleged recovery of sarias, according to this witness, took place only on

22.09.2005. There is no other witness of the alleged recovery of sarias. Even the

police official did not witness the said recovery. Admittedly, the name of Jaipal

and Narender Singh were disclosed by the complainant in the FIR itself, which

was lodged on 29.08.2005. It is not as if the address of the aforesaid persons was

not known to the Investigating Officer. In fact, all the appellants are residents of

the same house, as can be seen from their addresses given in the charge-sheet.

Admittedly, the other two accused were arrested on 16.09.2005 from the house E-

57, JJ Colony, Shakarpur, which is the same house from which the sarias are

stated to have been recovered on 22.09.2005. In his cross examination, the

Investigating Officer admitted that efforts were made by him on 16.09.2005 also

to search the sarias, but the same could not be found. I fail to appreciate how the

Investigating Officer was unable to recover the sarias form the same house on

16.09.2005, but was able to find them on 22.09.2005. In these circumstances, the

recovery of sarias from the house E-57, JJ Colony, Shakarpur on 29.09.2005

becomes highly suspicious.

Moreover, the appellants - Narender Singh and Jaipal were not likely to

retain the sarias in their hosue till 22.09.2005 when their co-accused residing in

the same house had been arrested on 16.09.2005. Even if the rooms from where

the sarias are alleged to have been recovered were not searched on 16.4.2005,

once their co-accused were arrested, Narender and Jaipal would certainly have

thrown away the sarias instead of keeping them in their rooms. In fact, the person

using a weapon is most unlikely to keep the weapon of offence in his own house

particularly when he knows that the victim of the crime being known to him was

bound to name him before the police and in that event his house would be the first

place to be searched for recovery of the weapon of offence.

11. The sarias alleged to have been recovered from the appellants - Narender

Singh and Jaipal were not shown to any of the eye witness during their deposition

in the court. The sarias were not sent to the doctor to obtain an opinion as to

whether the injuries to the victims could have been caused using those sarias or

not. In these circumstances, the court cannot be sure as to whether the appellants

had used the sarias or some other weapon for causing injuries to the injured

persons. In any case, the court does not know what was the shape and size of the

sarias alleged to have been used for causing injuries to the complainant and his

companions.

12. A perusal of the medical record of the appellants would show that they

were treated in Dr. Sukhwani Clinic on 29.08.2005 itself, though the injuries

sustained by them were superficial. However, no attempt has been made by the

prosecution to explain the injuries sustained by the appellants. The deposition of

the injured persons also does not explain how the said injuries came to be

sustained by the appellants. The logical inference in such circumstances would be

that a quarrel had ensued between the appellants on the one hand and PW6 - Prem

Singh, PW7 - Manish and PW5 - Devender on the other hand in which both the

parties sustained injuries though the injuries sustained by the appellants were

minimal.

13. A perusal of the MLC of Manish would show that he had three clean

lacerated wounds - one measuring 4 cmx05 cm, the second wound measuring 2

cm x0.5 cm and the last wound measuring 2cm x 2.5 cm. The injured Prem Singh

had two clean lacerated wounds both measuring 2 cm x 5 cm x. .5 cm. Devender

also had two clean lacerated wounds - one of 8.1 x.5 cm and the other measuring

6 cm x .5 cm. In none of the MLCs, the depth of any wound has been given. None

of the doctors who examined the injured persons has been produced by the

prosecution and the MLC were exhibited in the deposition of another doctor who

was deputed by the Medical Suptd. to deposit in their place. Since no depth of the

wound has been given in the MLCs, the inference is that the wounds were

superficial and not deep, which in turn, indicates that the blows to the injured

persons were not given with much force. Had the blows to the injured persons

been given with substantial force, the wounds would not have been superficial.

14. In these circumstances, when the injuries have been caused in the course of

a quarrel, both the parties have sustained injuries, the weapon of offence has not

been produced, the court does not know what precisely was the weapon used and

what was its shape and size, it would be difficult to say that the appellants caused

the injuries to the prosecution witnesses with such intention or knowledge and

under such circumstances that if they by that act had caused death they would be

guilty of culpable homicide not amounting to murder.

Consequently, the conviction of the appellants under Section 308 of IPC

would not be justified. In the facts and circumstances of the case, the appellants

are likely to be convicted are likely to be convicted under Section 323/34 of IPC

for causing hurt to the prosecution witnesses.

15. For the reasons stated hereinabove while acquitting the appellants of the

charge under Section 308 of IPC read with section 34 thereof, they are convicted

under Section 323 of IPC read with Section 34 thereof. The learned counsel for

the appellants, other than appellant - Jaipal, states on instructions from the

aforesaid appellant that they shall pay, jointly, an amount of Rs.50,000/- each to

all the three injured persons namely Devender, Manish and Prem Singh. In view

of the aforesaid undertaking, the appellants are granted benefit of probation,

subject to all the three injured being paid compensation in terms of the statement

made by the learned counsel. The appellants are, therefore, released on furnishing

bonds of peace and good conduct in the sum of Rs.10,000/- each with one surety

each in the like amount during the period of one year. During the period of bond,

they shall maintain peace and good conduct and refrain from committing any

crime. They shall also appear, as and when directed, to receive the sentence

imposed on them. The pay orders in the names of the injured persons shall be

submitted by them along with the bonds of peace and good conduct within two

weeks from today. In the event of failure to pay the compensation and/or furnish

bonds of peace and good conduct, they shall undergo RI for one year each.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail Suptd for information

and necessary action.

Trial court record be sent back along with a copy of this order.

APRIL 03, 2014                                                  V.K. JAIN, J.
b'nesh /rd