Delhi High Court
Rakesh vs State Of Delhi on 23 January, 2014
$~24 to32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
(i) + CRL.A. 586/2001 & Crl. M.A. No. 2602/2011
SURENDER ..... Appellant
Through: Mr. Rohit Kumar, Advocate for
Mr.S.P. Kaushal, Advocate
versus
STATE OF DELHI ..... Respondent
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(ii) + CRL.A. 587/2001 & Crl. M.A. No. 2600/2011
SATISH ..... Appellant
Through: Mr. Rohit Kumar, Advocate for
Mr.S.P. Kaushal, Advocate
Versus
STATE OF DELHI ..... Respondent
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(iii) + CRL.A. 588/2001
HAWA SINGH ..... Appellant
Through: Mr. Rohit Kumar, Advocate for
Mr.S.P. Kaushal, Advocate
versus
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 1
Crl. Appl. Nos. 245,247,251 & 252 of 2003
STATE OF DELHI ..... Respondent
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(iv) + CRL.A. 589/2001 & Crl. M.A. No. 2601/2011
RAKESH ..... Appellant
Through: Mr. Rohit Kumar, Advocate for
Mr.S.P. Kaushal, Advocate
versus
STATE OF DELHI ..... Respondent
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(v) + CRL.A. 602/2001
VIRENDER ..... Appellant
Through: Mr. Rohit Kumar, Advocate for
Mr.S.P. Kaushal, Advocate
versus
STATE OF DELHI ..... Respondent
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(vi) + CRL.A. 245/2003
KULDEEP ..... Appellant
Through: Ms. Sahila Lamba, Advocate
(Amicus Curiae)
Versus
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 2
Crl. Appl. Nos. 245,247,251 & 252 of 2003
THE STATE (DELHI) ..... Respondent
Through: Mr. Ravi Nayak, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(vii) + CRL.A. 247/2003
VIJAY @ PAPPU ..... Appellant
Through: Ms. Sahila Lamba, Advocate
(Amicus Curiae)
Versus
THE STATE (DELHI) ..... Respondent
Through: Mr. Ravi Nayak, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(ix) + CRL.A. 251/2003
PRAKASH CHAND ..... Appellant
Through: Ms. Sahila Lamba, Advocate
(Amicus Curiae)
Versus
THE STATE (DELHI) ..... Respondent
Through: Mr. Ravi Nayak, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
(x) + CRL.A. 252/2003
MEDU RAM ..... Appellant
Through: Ms. Sahila Lamba, Advocate
(Amicus Curiae)
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 3
Crl. Appl. Nos. 245,247,251 & 252 of 2003
Versus
THE STATE (DELHI) ..... Respondent
Through: Mr. Ravi Nayak, Additional Public
Prosecutor for respondent-State
with ASI Tej Ram
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 23.01.2014
In the above captioned nine appeals, appellants in the first five
appeals, were tried in FIR No. 408/1997, under Sections 302/147/148/149
of IPC, registered at police station Najafgarh, Delhi whereas appellants of
remaining four appeals were accused in FIR No. 409/1997, under
Sections 147/148/149/323/325/308 of IPC, also registered at police
station Najafgarh, Delhi. The aforesaid two FIRs were registered in
respect of an incident of 21st June, 1997. It is pertinent to note that FIR
No. 409/1997 was registered after five days of this incident i.e. on 26 th
June, 1997.
In the above captioned first five appeals [Crl. Appl. Nos. 586, 587,
588, 589 & 602 of 2001], vide impugned judgment of 24 th May, 2001
appellants- Surinder, Satish, Hawa Singh, Rakesh and Virender have
been sentenced for the offences under Sections 304-II/307/323/
324/147/148 of IPC and vide impugned order of 21st July, 2001, these
appellants have been sentenced to rigorous imprisonment for a period of
six year for the main offence i.e. under Section 304-II of IPC and for the
allied offences, they have been sentenced to lesser varying terms.
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 4
Crl. Appl. Nos. 245,247,251 & 252 of 2003
In the remaining four appeals of Kuldeep, Vijay @ Pappu,
Prakash Chand & Medu Ram [Crl. Appl. Nos. 245,247,251 & 252 of
2003], impugned judgment of 25th February, 2003 convicts appellants
for offences under Sections 308/147/148 r/w Section 149 IPC and under
Section 452 IPC r/w Section 34 of IPC. Vide impugned order of 27 th
March, 2003, they have been sentenced to rigorous imprisonment for 2½
years for the main offence i.e. under Section 308 r/w Section 149 IPC and
for lesser terms for the remaining offences.
While entertaining the above captioned nine appeals, the
substantive sentence awarded to appellants was suspended. Now at the
final hearing of above captioned nine appeals, it was submitted by both
sides that since the two FIRs in question relate to one incident, therefore,
these appeals can be heard together. Accordingly, these appeals have
been taken up for hearing together and by this common order, they are
being disposed of.
In the above captioned first five appeals [Crl. Appl. Nos. 586, 587,
588, 589 & 602 of 2001], the initial prosecution version as noted in the
impugned judgment, is as under:-
"The allegations against the accused persons are that on
21.6.97 at about 9.30 P.M. complainant Vinod Kumar
alongwith his cousin Parkash was sitting on bus stand of
village Mitrao when Virender who also happened to be a
cousin in relation came there. He was drunk and he started
abusing Parkash. The complainant asked him not to do so.
Meanwhile, Hawa Singh, brother of Virender, also came there.
Hawa Singh gave a slap to the complainant. Virender and
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 5
Crl. Appl. Nos. 245,247,251 & 252 of 2003
Hawa Singh left for their house abusing and after about five
minutes, Virender, Rakesh, Hawa Singh, Satish and Surender,
who were all brothers, came armed with knives, iron rod, jelly
and lathi. Satish gave a lathi blow to Parkash, Surender gave
iron rod blow to Parkash on his head and Hawa Singh gave fist
blows and slaps to him (Parkash). On hearing the noise, Kuldip
and Lalu came there. While Rakesh inflicted 3 /4 knife blows to
Lalu, Virender caused injury to Kuldip with knife. Thereafter,
Mahinder Singh came to intervene and Rakesh gave a knife
blow to him (Mahinder) in his stomach and Satish gave lathi
blow to Mahinder Other members of the family of the
complainant including Medh Singh, Raju, Vijay and ladies who
came there to save them were also given beatings by above said
five accused persons with respective weapons and the wives of
Surinder, Satish and Hawa Singh threw stones from the roof of
their house due to which injuries were received by other
members of the family of the complainant.
Mahinder died as a result of injuries received by him. As
per post-mortem report, the death of Mahinder was as a result
of penetrating injury to transverse colon and it was sufficient to
cause death in the ordinary course of nature. Injury to Parkash,
Medh Singh and Birma Devi were found to be grievous by blunt
object while injuries to six other persons were simple by blunt
or sharp object. The police completed the investigation of the
case and filed challan in the court."
The counter version put forth by appellants in remaining/ last four
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 6
Crl. Appl. Nos. 245,247,251 & 252 of 2003
appeals [Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001] has been
dealt by trial court in the following manner:-
„Now looking into the facts of the present case, I find,
PW-1 Virender Singh has very specifically deposed that on the
day of occurrence, 15-20 persons came in front of their house
consisting of Medu Prakash, Kuldip and Pappu and they all
started abusing them and at that time, his elder brother Hawa
Singh enquired as to what has happened and why they have
brought lathis and dandas to their house and on that, Prakash
hit Hawa Singh on head with the help of lathi and Pappu gave
danda blows and Kuldip and Pappu threw Hawa Singh on the
road and when his brother Surener came to save Hawa Singh,
Prakash gave a lathi blow over his head and Pappu gave danda
blow and Medu gave jelly blow to Surender and in between
Kuldip gave a blow with iron rod on his head and when his
brother Satish was taking his father inside the room, at that
time, Medu asked him as to where he was taking his father and
that he is the bone of contention and he should be killed and at
that time, accused Joginder alongwith the other person hit his
father and all of them sustained injuries. PW2 Sunita, wife of
Surender, PW 5 Hawa Singh, PW6 Rakesh Kumar, PW7 Satish
Kumar, PW8 Surender Kumar, PW10 Bala, wife of Hawa
Singh, PW12 Laxman, they all corroborated the statement of
PW1 Viredner Singh and they all were the eye witnesses."
In FIR No. 408/1997 [Crl. Appl. Nos. 586, 587, 588, 589 & 602
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 7
Crl. Appl. Nos. 245,247,251 & 252 of 2003
of 2001] prosecution had got examined twenty six witnesses to prove its
case. The stand taken by appellants-Surinder, Satish, Hawa Singh,
Rakesh and Virender, as summarized by trial court in the impugned order
is as under:-
"Accused Satish denied the entire incident and has
pleaded that he is innocent and he was present at this house at
the time of occurrence. He has further deposed that Parkash,
Medu, Kuldip, Vijay and others came to his house and started
abusing them. When his father intervened, he was also abused
by Parkash. They also committed trespass by forcibly entering
into their house and caused injuries to them. They also received
injuries and were hospitalized and the occurrence has taken
place inside and outside their residence. The cause of
aggression was that the complainant party had lost civil battle
in the court in respect of land case. Accused Hawa Singh has
also denied the entire incident and has taken the plea that there
is no tailoring shop in front of bus stand and has deposed that
they were called in the police station and were shown arrested.
The chura has been planted on them and he has also taken the
plea that the injured persons came to their house and
committed tress pass and caused injuries to them in a land
case. Accused Virender, Rakesh, Sunita, Anita and Bala has
also denied the entire incident and has taken the same plea."
Appellants in FIR No. 408/1997 [Crl. Appl. Nos. 586, 587, 588,
589 & 602 of 2001] got examined three witnesses in their defence. While
relying upon deposition of Prakash Chand (PW-1), Medu Ram (PW-2)
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 8
Crl. Appl. Nos. 245,247,251 & 252 of 2003
and Vijay Kumar (PW-3), trial court held appellants- Surinder, Satish,
Hawa Singh, Rakesh and Virender guilty for offence under Section 304 II
of IPC etc.
Mr. Ravi Nayak, learned Additional Public Prosecutor for
respondent-State supports the impugned judgment and order in FIR No.
408/1997 and has placed on record Verification Report confirming that
appellants Surinder & ors. have clean antecedents and as per nominal
roll, appellants- Surinder has remained behind bars in this case for a
period of three years and appellants- Satish, Hawa Singh, Rakesh and
Virender have remained behind bars for a period of above four years.
At the hearing of these appeals, conviction of appellants- Surinder,
Satish, Hawa Singh, Rakesh and Virender [in Crl. Appl. Nos. 586, 587,
588, 589 & 602 of 2001] was rightly not assailed on merits, as upon
scrutiny of the impugned judgment, I find that their conviction for
offence under Section 304 II and allied offences is well merited. On the
quantum of sentence, it was submitted on behalf of appellants- Surinder,
Satish, Hawa Singh, Rakesh and Virender that they are first offenders and
it was pointed out that even in the impugned judgment, trial court has
held that the incident in question had taken place near house of
appellants-accused- Surinder & ors. and that death of deceased was due
to septicemia. It is submitted on behalf of appellants- Surinder & ors.
that appellants have faced agony of trial and these proceedings since the
year 1997 and these appellants have family responsibilities to shoulder
and that they have remained behind bars for a period of four years and so.
Thus, it is submitted that in the peculiarity of this case, the
substantive sentence awarded to appellants- Surinder, Satish, Hawa
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 9
Crl. Appl. Nos. 245,247,251 & 252 of 2003
Singh, Rakesh and Virender deserves to be reduced to the period already
undergone by them.
While maintaining conviction of appellants- Surinder, Satish,
Hawa Singh, Rakesh and Virender, the peculiar facts and circumstances
of FIR No. 408/1997 persuades this Court to reduce the substantive
sentence awarded to them by trial court to the period already undergone
by them in view of clean antecedents of these five appellants and the fact
that they have already faced agony of these proceedings for last seventeen
years.
So far as appeals of appellants - Kuldeep, Vijay @ Pappu, Prakash
Chand & Medu Ram [in Crl. Appl. Nos. 245,247,251 & 252 of 2003] are
concerned, I find that none has appeared on their behalf. Mr.Ravi Nayak,
learned Additional Public Prosecutor for respondent-State submits that he
had informed Mr. Ikrant Sharma, Advocate for these appellants on his
mobile No.9810069880 and he said that he would be appearing before
this Court today in these matters but he has not appeared today in the
Court.
Since these appeals pertain to one incident which is subject matter
of appeals in the cross FIR No. 408/1997, therefore, Ms. Sahila Lamba,
Advocate present in Court, who is on the panel of Delhi High Court
Legal Services Committee, is appointed as Amicus Curiae Counsel to
appear on behalf of appellants- Kuldeep, Vijay @ Pappu, Prakash Chand
& Medu Ram in appeals [Crl. Appl. Nos. 245,247,251 & 252 of 2003]
pertaining to FIR No. 409/1997.
The counter version of this incident, as put forth in FIR No.
409/1997 and as noticed in the impugned judgment of 25 th February,
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 10
Crl. Appl. Nos. 245,247,251 & 252 of 2003
2003 is as under:-
"Thereafter, the I.O. recorded the statement of Hawa
Singh who have his statement to the effect that he is doing the
job of cultivation. He has further deposed that on 21.6.1997 at
about 9.30 p.m. while he was at his house, he came to know that
Vinod @ Kala and Parkash Chand have quarreled with his
brother Virender Singh. He reached there and gave slap to
Vinod and one slap to his brother Virender and asked them as
to why they were quarrelling and then both the parties went
back to their house. After some time, 15-20 persons including
Satpal @ Lalu, Jagbir, Vinod @ Kala, Parkash Chand, Kuldip,
Mahender Singh, Ramesh, Pappu etc. came to their house and
they were armed with lathi, jelly and started beating them.
Satpal gave lathi blow on his head and Kale, Jagbir and
Ramesh also gave lathi blows to him and his brother Virender
was also beaten by Mahender Singh, Kuldip, Pappu with lathis
and dandas and his another brother Surender Sing was beaten
by Jagbir and Vinod. Then, they all went to their other house
where his father is residing and gave him beatings and they
sustained injuries."
While accepting the afore-referred counter version put forth by
Virender Singh (PW-1), Sunita (PW-2 and Hawa Singh (PW-5),
appellants- Kuldeep, Vijay @ Pappu, Prakash Chand & Medu Ram have
been held guilty of offence under Section 308 of IPC and for allied
offences.
With the able assistance of Ms. Sahila Lamba, learned Amicus
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 11
Crl. Appl. Nos. 245,247,251 & 252 of 2003
Curiae Counsel appearing for appellants [in Crl. Appl. Nos. 586, 587,
588, 589 & 602 of 2001] and Ms. Nishi Jain, learned Additional Public
Prosecutor for respondent-State, evidence on record has been scrutinized
and impugned judgment is perused.
After hearing both the sides, I find that two versions in respect of
one incident are put-forth and both the versions cannot be accepted to be
true. Trial court has erred in doing so in FIR No. 409/1997. After
accepting the initial version given in FIR No. 408/1997 [Crl. Appl. Nos.
586, 587, 588, 589 & 602 of 2001] , it was not open to trial court to have
accepted the counter version in FIR No. 409/2007 [Crl. Appl. Nos.
245,247,251 & 252 of 2003]. It is nobody's case that there was a free
fight and it was known as to who was the aggressor. Otherwise also, it
does not appear to be so from the fact of these cases. I find that
conviction of appellants-Surinder, Satish, Hawa Singh, Rakesh and
Virender in FIR No. 408/1997 1997 [in Crl. Appl. Nos. 586, 587, 588,
589 & 602 of 2001] is acceptable and legally sustainable whereas
conviction of appellants-Kuldeep, Vijay @ Pappu, Prakash Chand &
Medu Ram [in Crl. Appl. Nos. 245,247,251 & 252 of 2003] in FIR No.
409/1997 is not clearly unsustainable.
In view of the aforesaid, appeals of appellants-Kuldeep, Vijay @
Pappu, Prakash Chand & Medu Ram [Crl. Appl. Nos. 245,247,251 &
252 of 2003 pertaining to FIR No. 409/1997] are accepted and the
impugned judgment of 25th February, 2003 is set aside. However,
conviction of appellants - Surinder, Satish, Hawa Singh, Rakesh and
Virender [Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 in FIR No.
408/1997] is maintained while directing that the substantive sentence
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 12
Crl. Appl. Nos. 245,247,251 & 252 of 2003
awarded to them by trial court stands reduced to the period already
undergone by them in view of the fact that they have already faced agony
of these proceedings for last seventeen years.
The above captioned nine appeals and applications are accordingly
disposed of in aforesaid terms. Ms. Sahila Lamba, learned Amicus Curiae
Counsel, shall be entitled to the scheduled fee from Delhi High Court
Legal Services Committee for her able assistance rendered in disposal of
Criminal Appeal Nos. 245/2003, 247/2003, 251/2003 & 252/2003.
(SUNIL GAUR)
JUDGE
JANUARY 23, 2014
r
Crl. Appl. Nos. 586, 587, 588, 589 & 602 of 2001 Page 13
Crl. Appl. Nos. 245,247,251 & 252 of 2003
