Shanti & Ors vs State (Nct Of Delhi)
2014 Latest Caselaw 6931 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                          CRL.A. No. 270 of 2010

        SHANTI & ORS                               ..... Appellants
                                   Through: Mr. Puneet Mittal and
                                   Mr. A.N. Aggarwal, Advocates.

                          versus

        STATE (NCT OF DELHI)              ..... Respondent
                          Through: Ms. Isha Khanna, APP
                          for the State.
                          Mr. Sanjeev Kumar & Mr. Ram
                          Kamal Prasad, Advocates for
                          Complainant.

        CORAM: JUSTICE S. MURALIDHAR
                          ORDER

18.12.2014

1. This appeal is directed against the judgment dated 6th February

2010 passed by the learned Additional Sessions Judge in Sessions

Case No. 24 of 2008, convicting the appellants for the offences under

Sections 452 IPC and 308/34 of IPC and the order on sentence dated

11th February 2010 sentencing each of them to undergo rigorous

imprisonment („RI‟) for a period of two years with a fine of Rs.2,000

each and in default, simple imprisonment („SI‟) for six months for

the offence under Section 452 IPC and RI for a period of 2 years

with fine of Rs.1,000 each and in default to undergo SI for three

months for the offence under Section 308/34 of IPC.

2. Savitri Devi (PW-1) stated that they lived in house No.C-489,

Street No. 14, Harsh Vihar, Delhi. On 26th November 2005, at

around 8.30 am, she was present in her house. Her son Sudesh (PW-

2) who works with the Delhi Home Guards was washing his face

outside. Nand Kishore (Accused No.2), who lived in the

neighbourhood started abusing PW-2. When PW-2 returned to his

house, A-2 and his sons Malkhan (A-3), Manoj (A-4) and Mohit

entered the house armed with iron pipe and iron rods. While A-2

gave a blow on the head of PW-2 with the iron pipe that he was

holding, A-3 and A-4 beat him with the iron rods. PW-1 then raised

an alarm for help. In the meanwhile, Shanti (A-1), wife of A-2 also

reached there and hit PW-1 on her head with a brick. PW-1 stated

that there was a history of ill-will between her family on the one side

and the family of the accused on the other. After assaulting PWs-1

and 2, the accused fled the spot.

3. At about 9.30 am, a wireless operator passed on information to the

Police Post („PP‟) Harsh Vihar, under the jurisdiction of Police

Station („PS‟) Nand Nagri, that an altercation was going on at house

No. C-489. He then recorded DD No.9 (Ex.PW-15/A) and sent it to

Head Constable Rajinder for further action. The incident was also

witnessed by Om Prakash (PW-5), who had a shop in Harsh Vihar.

On hearing the crying of a lady that her child was assaulted, PW-5

went to the house of PW-2 (Sudesh), which was two houses away

from his shop. He stated that he found PW-2 lying on the ground in

front of his house and the accused persons were assaulting him with

iron pipe and iron rods. He stated that Nand Kishore (A-2) was

having an iron pipe in his hands and Manoj (A-3) and Malkhan (A-4)

were having iron rods in their hands and A-1 was having a brick in

her hand. PW-5 stated that he pushed the accused persons from there.

A cot was then summoned and PW-2 was made to lie on it. Many

persons collected there. Someone summoned a three wheeler scooter

rickshaw. Within 5-7 minutes, a PCR van reached there. PW-2 was

taken to the GTB Hospital in the PCR van. PW-5 accompanied him

to the hospital. In his cross-examination, PW-5 stated that blood was

oozing out of the head of PW-2 and his clothes were drenched with

blood. The sleeve of the shirt and sweater worn by PW-5 were

stained with blood, but the police did not collect them.

4. Dr. M. Dass (PW-6) at the GTB hospital examined Savitri Devi,

PW-1, on 26th November 2005 and noticed the following injuries on

her person:

"1. Lacerated injury was present on right temporal region having dimension of 4cm x 2cm.

2. Abrasion of left elbow.

3. Swelling on right forearm."

He categorized the injuries as simple.

5. PW-6 also examined PW-2 and following injuries were noted on

his person:-

"1. Bleeding from right ear was present.

2. Lacerated injury with dimension of 4 cm long and 0.3 cm in depth over right temporal region."

6. While PW-1 was discharged on the same day, PW-2 was kept

under observation. An opinion on the injuries of PW-2 was obtained

subsequently from Dr. Brijesh Kumar (PW-16). He was shown the

treatment records and gave his opinion that while the injuries on PW-

1 were simple, the injuries on PW-2 were grievous.

7. Arvind Kumar, ASI of PS Nand Nagari (PW-10) was assigned DD

No. 10 (Ex. PW-10/A) for action. When he reached the spot, PW-10

was told that the injured had been shifted to GTB Hospital by a PCR

van. Leaving Constable Veer Sain (PW-11) at the spot, PW-10

reached the GTB Hospital where he found PWs-1 and 2 admitted.

He collected their MLCs. PW-2 was declared unfit for statement.

However, PW-1 was able to make a statement (Ex.PW-1/A) on the

basis of which a rukka (Ex.PW-4/A) was prepared and given to HC

Rajinder for registering the FIR. PW-10 reached the spot with PW-1

by which time the Crime Team officials also reached the spot.

Photographs of the spot were taken. PW-10 prepared the site plan

(Ex.PW-10/B) at the instance of PW-1. He lifted the blood samples

from spot, kept them in a plastic container, converted them into

parcel, affixed the seal AK and took them into possession vide memo

Ex.PW-10/C.

8. At the instance of Om Prakash (PW-5), PW-10 and ASI Sumitra

(PW-13) arrested A-1 from jail ground and got her personal search

conducted on 26th November 2005 itself. PW-10 states that the

neighbours did not come forward to depose about the incident and

therefore he did not record their statements.

9. It must be noted at this stage that charges were framed against the

accused for the offences under Sections 452 and 308/34 IPC to

which they pleaded not guilty and claimed trial.

10. Sixteen witnesses were examined by the prosecution. When the

evidence was put to the four accused, they denied it and claimed to

have been falsely implicated. The defence examined four witnesses.

11. Jagan Singh Verma, a Technician from MTNL, was examined as

DW-1. He brought the summoned record concerning the attendance

of A-2 on 26th November 2005. According to him, as per the record,

A-2 was on duty from 7 am to 3 pm at Serial No. 4 of the register, a

photocopy of which was exhibited as Ex.DW-1/A. He clarified that

A-2 was on duty on that day up to 5 pm as he was on an overtime

duty of two hours. He also brought a copy of the complaint register,

a photocopy of which has been marked as Ex.DW-1/B. In his cross-

examination by the Public Prosecutor, DW-1 stated that there was no

computerised system from "which it can be ensured that A-2 had

attended his duty on a particular place and a particular time". He

agreed that A-2 remained on field duty and one could not locate his

duty position and prove his duty hours as maintained in the records.

He could not say whether A-2 remained continuously in the office

from 7 am to 5 pm on 26th November 2005.

12. Mallu (DW-2) claimed that he along with Manoj (A-4) and

Mohit (juvenile co-accused) and one Tinkoo along with two other

boys went to play cricket at the Ramlila Ground at around 7.15 am

and were there till 10.30 am. One person had come from near the

house of the accused persons and stated that a quarrel had taken

place at the house of the accused. Then they went to their respective

houses. In his cross-examination, DW-2 stated that all the accused

persons were his friends for the last six years and that he had come to

give evidence at the instance of the accused persons.

13. Sunil Kumar (DW-3) stated that at around 8.30 am on 26th

November 2005 he had gone to the shop of A-1 and noticed a boy

present there. A-1 had asked that boy as to why he was abusing at

which the boy rushed and returned with a saria in his hand and but

fell down and sustained an injury on his head. Thereafter pelting of

stones began and DW-3 ran to save himself. According to DW-3,

except A-1 none of the accused persons were present at the spot. In

his cross-examination DW-3 stated that the accused had asked him to

come to the Court to depose. He had stopped at the shop of A-1 for

about 5 to 10 minutes only.

14. Avniesh (DW-4) was a labourer working in the BS Foundry as a

Lathe Machine Operator. He was known to Manoj (A-4). He stated

that A-4 was a RSS worker like DW-4. On 26th November 2005, he

went to the house of A-4 at 8.30 pm and when he reached there he

found some people pelting stones and he also noticed A-1 present

there along with A-4. One person ran with a saria in his hand

towards the house of A-4 and fell down on the road due to which he

received injuries on his head. In his cross-examination he confirmed

that he and A-4 were friends because of their association with the

RSS. He did not tell the police about what he witnessed on 26 th

November 2005 at around 8.30 am or at any time on or after that day.

15. The trial Court on an analysis of the evidence found the

testimonies of PWs-1 and 2 i.e. the injured eye-witnesses to be

trustworthy. Merely because the weapons used in the offence i.e. iron

pipe and the iron rods were not recovered, the statements of PWs-1

and 2 could not be discarded. Although two of the defence witnesses

i.e. DWs-3 and 4 had mentioned about a boy coming there with a

saria none of them had stated who that boy was. Therefore, the

accused persons failed to prove that Sudhesh Kumar (PW-2)

sustained injuries by falling on the road when he rushed towards the

house of the accused carrying a saria.

16. As regards the plea of alibi of Nand Kishore (A-2), the trial Court

held that the evidence of DW-1 showed that the exact location of A-2

who remained on field duty could not be stated. That he was

continuously present from 7 am to 5 pm in the office also could not

be proved. The evidence of DW-3 showed that A-1 was present at

the spot and perhaps not at her house. The evidence of DW-2 also

could not prove that A-3 and A-4, who were supposed to be playing

cricket at the relevant time, were so far away so as not to be present

at the place when the crime was committed. Their plea of alibi was

also not proved. There were no infirmities in the depositions of the

two eye-witnesses i.e. PWs-1 and 2 who corroborated each other.

17. Mr. Puneet Mittal, learned counsel for the Appellants, submitted

that the allegations against the accused were exaggerated; the

weapons allegedly used and the injuries suffered by the two victims

do not match each other. The previous incidents involving the two

families having been compromised, there was no motive for the

crime. He submitted that PWs-1 and 2 had deposed artificially in a

parrot-like manner which made the events described by them

improbable. Mr. Mittal submitted that the site plan was not drawn up

on the pointing out of PW-2 who was in the best position to say

where he was washing his face and where the incident took place. It

is submitted that the plea of alibi of each of the accused was wrongly

disbelieved by the trial Court. Lastly, it was submitted that the failure

to recover the weapons weakened the prosecution case considerably.

18. The entire case of the prosecution rests on the versions of the two

injured eye-witnesses, PWs-1 and 2. As rightly observed by the trial

Court, their depositions are cogent and consistent on the material

particulars i.e. the naming of the accused, the weapons wielded by

them and the role attributed to each of them. Their evidence is

corroborated by the MLCs of PWs-1 and 2 and the photographs

taken of the scene of crime. There was a history of enmity between

the families of the accused and the injured victims and this formed

the backdrop for the incident took place, triggered as it was by a

seemingly trivial issue of PW-2 washing his face in front of his

house. The fact, however, remains that PWs-1 and 2 have more than

adequately proved their versions. Their versions have been fully

corroborated by an independent witness, PW-5, to the effect that the

accused were the aggressors and caused injuries to PWs-1 and 2 with

iron pipe, iron rods and a brick.

19. Mr. Mittal pointed out that the MLCs showed that there was only

one wound each on the parietal region of both PWs-1 and 2. This

rendered their description of what transpired highly exaggerated. It

is seen from the MLCs that apart from the injuries on the head

suffered by each of them i.e. PWs-1 and 2 there were other wounds

including abrasions and swelling on the arms as well. Clearly,

therefore, the versions of PWs-1 and 2 that they were beaten with

iron rods cannot be disbelieved.

20. As already noted, PW-5 is an independent witness who has fully

corroborated PWs-1 and 2. His version does not appear to have been

shaken in his cross-examination.

21. The plea of alibi put forth by A-2 has been rightly disbelieved by

the trial Court. What was produced by DW-1 was the duty roster

which by itself does not show that A-2 was present in his office

throughout from 7 am to 5 pm on 26 th November 2005. The duty

roster is very different from an attendance sheet. In fact some of the

duties have been assigned even after noon time. A-2 did not examine

any other co-worker to speak about his presence elsewhere at the

given time on 26th November 2005. Even the evidence of the other

defence witnesses i.e. DWs-2, 3 and 4 did not conclusively prove the

plea of alibi set up by A-1, A-3 and A-4.

22. The non-recovery of the weapons does not affect the prosecution

case inasmuch as PWs-1 and 2 have spoken clearly and consistently.

Their cross-examination did not bring forth any major

inconsistencies or omissions. Being the injured witnesses their

testimonies deserve to be to accorded a high credibility. The nature

of the injuries as far as PW-2 is concerned, is clearly grievous. The

injury was on the head and caused with an iron pipe or iron rod.

23. Consequently, this Court is unable to find any error having been

committed by the trial Court in convicting the Appellants for the

offences under Sections 452 and 308/34 IPC. The judgment of the

trial Court convicting the Appellants for the said offences is

accordingly affirmed.

24. On the question of sentence, Mr. Mittal pleaded that there had

been no untoward incident since then. In fact, the accused have not

been living in the same area since the date of the incident. He

pleaded that the Appellants should be granted the benefit of

probation. This plea was opposed by learned counsel for the

Complainant party who sought to be heard in the matter. However,

this being a criminal appeal there is no automatic right of a

Complainant to address arguments. Learned APP, pointed out in

terms of the judgment of the Supreme Court in MCD v. State of

Delhi (2005) 4 SCC 605 before considering the question of giving

the accused the benefit of probation, the Court must call for a report

of the Probation Officer.

25. In these circumstances, the Court directs that a report be

submitted by the Probation Officer regarding each of the Appellants

particularly with reference to the period subsequent to the offence in

question. A report be submitted to this Court within six weeks. As

and when the report is received, copies thereof be made by the

Registry and given to learned counsel for the Appellants as well the

learned APP. The question of sentence/grant of the benefit of

probation will be considered by the Court after the receipt of the said

report.

26. List for further hearing on 20th February 2015.

27. The matter be treated as part-heard.

28. A copy of this order be sent forthwith to the Secretary (Home),

Government of the National Capital Territory of Delhi and the

Probation Officer for compliance in terms of para 25 above.

S. MURALIDHAR, J.

DECEMBER 18, 2014 BG/dn