Rashid vs State
2014 Latest Caselaw 460 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 29th NOVEMBER, 2013
                             DECIDED ON : 24th JANUARY, 2014


+                         CRL.A. 583/2000

       RASHID                                         ....Appellant
                    Through :    Mr. S.K.Bhalla, Advocate.


                                 versus


       STATE                                         ....Respondent
                    Through :    Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Rashid (the appellant) challenges the legality and correctness

of a judgment dated 15.09.2000 of learned Addl. Sessions Judge in

Sessions Case No. 116/98 arising out of FIR No. 431/98 PS Sultanpuri

whereby he was convicted for committing offences punishable under

Sections 304/324 IPC. By an order on sentence dated 19.09.2000, he was

awarded RI for seven years with fine ` 1,000/- under Section 304 IPC and

RI for one year with fine ` 500/- under Section 324 IPC. Both the

sentences were to operate concurrently.

2. Allegations against the appellant were that on 03.07.1998 at

about 08.00 A.M. opposite Hanuman Mandir, P-4 Block, Sultanpuri, he

and his associate Harish Kumar inflicted injuries to Anil Kumar,

Ghanshyam and Dhani Ram. Dhani Ram succumbed to the injuries and

post-mortem examination on the body was conducted. During the course

of investigation, statements of the witnesses conversant with the facts

were recorded. After completion of investigation, a charge-sheet was filed

against the appellant and Harish Kumar for committing offences under

Section 304/324/34 IPC. Vide order dated 01.02.1999, Harish was

discharged. Charge under Section 304/324 IPC was framed against the

appellant to which he pleaded not guilty and claimed trial. To bring home

the charge, the prosecution examined seven witnesses. In 313 statement,

the appellant pleaded false implication and claimed that he was assaulted

and injured by the complainant party when the people present at the spot

did not permit them to forcibly draw water from the water tank. DW-1

(Rahmit Ullaha), DW-2 (Suraj Pal) and DW-3 (Chaman Lal) appeared in

his defence. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court, by the impugned judgment held

Rashid guilty for the offences mentioned previously. Being aggrieved, the

appellant has preferred the appeal.

3. I have heard the learned counsel for the parties and have

examined the record. Appellant‟s counsel urged that the Trial Court did

not appreciate the evidence in its true and proper perspective and fell in

grave error in relying upon the testimonies of interested witnesses without

independent corroboration. The Trial Court did not notice that ocular

testimony of the deceased‟s relatives was at variance with medical

evidence. It was highly improbable for PW-1 (Anil Kumar) and PW-2

(Ghanshyam) to observe as to how and by whom the injuries were

inflicted to Dhani Ram when allegedly they were attacked simultaneously.

Vital discrepancies and contradictions emerging in the statements of PW-

1 and PW-2 were ignored without valid reasons. Counsel adopted

alternative argument to take lenient view as Rashid had already undergone

13 months in custody. Learned Addl. Public Prosecutor urged that the

impugned judgment is based upon fair appraisal of the evidence and needs

no interference.

4. It is admitted position that dispute arose on 03.07.1998 at

about 08.00 A.M. at the spot when PW-1 (Anil Kumar) had gone to fetch

water from a water tank. It is also not denied that in the said quarrel, PW-

1 (Anil Kumar), PW-2 (Ghanshyam) and Dhani Ram sustained injuries.

Appellant‟s contention is that he was not the author of the injuries and

these were inflicted by public persons preset at the water tank who had not

allowed the complainant party to draw water from the water-tank out of

turn and they wanted to get water on priority due to marriage in their

family. Further contention of the appellant is that he also received injuries

at the hands of the complainant party and was medically examined.

5. The occurrence took place at around 08.00 A.M. in which

PW-1 (Anil Kumar), his father PW-2 (Ghanshyam) and grandfather

(Dhani Ram) sustained injuries. Daily Diary (DD) No. 21 B (Ex.PW-5/A)

was recorded at 08.25 A.M. at PS Sultanpuri on getting information about

the quarrel. The investigation was assigned to SI Sri Kishan who with

Const. Puran Mal went to the spot. The injured had already been taken to

DDU Hospital. Dhani Ram‟s MLC (Ex.PW-5/B) and Ghanshyam‟s MLC

(Ex.PW-5/C) recorded their arrival time at about 09.23 A.M. and 09.57

A.M., respectively. The Investigating Officer, after recording Anil

Kumar‟s statement (Ex.PW-1/A) lodged First Information Report without

undue delay. In the statement, complainant - Anil Kumar disclosed that at

about 08.00 A.M., he had gone to fetch water from a water tank near

Hanuman Mandir, P-4 Block, Sultanpuri where a large crowd was present.

Rashid and Harish who lived at P-4 Block were getting water from the

water tank. He requested Rashid to allow him to take water due to

marriage at their home. On that, Rashid started beating him with fist and

blows. Harish also gave him beatings. When his father and grandfather

came to know about the quarrel, they rushed to the spot to intervene.

Harish fled the spot and Rashid went to the roof of his house and started

throwing bricks at them as a result his father and grandfather sustained

injuries on their heads. He also got injury in a scuffle with a sharp object

on his right hand.

6. Prompt and early reporting of the occurrence by the

informant with all its vivid details gives an assurance regarding its true

version. In the instant case, the First Information Report was lodged in

promptitude and the complainant - Anil Kumar whose presence at the

spot is undisputed gave detailed account of the occurrence and implicated

Rashid for inflicting injuries to his father and grandfather while pelting

bricks from the roof of his house. Since the FIR was lodged without delay,

there was least possibility of the complainant to concoct a false story in

such a short interval. The complainant narrated the genesis of the

occurrence minutely. While appearing as PW-1 in his Court statement

Anil Kumar proved the version given to the police at the earliest available

opportunity without any variation. He deposed that when he went to fetch

water from the water tank, Rashid was also standing among others there.

He asked them to allow him to take water first due to marriage in their

family to which the accused objected. He and his associate started beating

him. When his family members came to know, his father and grandfather

arrived there. Rashid went to the roof of his house and started pelting

stones which hit his father and grandfather and they sustained injuries on

head. They were taken to hospital. Police recorded his statement (Ex.PW-

1/A). His grandfather expired at Safdarjung Hospital. In the cross-

examination, he denied that statement made by him was tutored by the

police outside the court. He denied that he had removed the utensils of

Rashid and Harish and forcibly wanted to take water out of turn. He

denied that when they forcibly tried to take water out of turn, they were

beaten by „other persons‟ who had assembled there and not by the

accused. He further denied that they had given beatings to the appellant

and Harish. On scanning the testimony of the witness, it transpires that

material facts deposed by him remained unchallenged and uncontroverted

in the cross-examination. No material discrepancies could be elicited to

discard his version. Presence of the appellant at the spot is not under

challenge. The residents of the locality had gathered to take water from

the water tank. Those persons living in the vicinity of the appellant must

be known to him. However, he did not divulge the name of any such

individual with whom the victims had confrontation; and was assaulted

and injured. PW-2 (Ghanshyam), Anil Kumar‟s father has corroborated

his testimony in its entirety and has implicated Rashid for inflicting

injuries to him and his father with bricks from the roof top of his house.

Again, the cross-examination could not bring any material discrepancy to

disbelieve him. He also denied the suggestion that they forcibly prevented

Rashid from taking water on his turn, and assaulted and injured him. He

further denied that they had quarrelled with „those‟ who were taking water

from the tanker. Again, this injured witness had no ulterior motive to

falsely implicate Rashid with whom he had no prior animosity. The

testimony of an injured witness has its own relevancy and efficacy. It is a

settled preposition of law that the evidence of the stamp witness must be

given due weightage as his presence at the place of occurrence cannot be

doubted. His statement is generally considered to be very reliable and it is

unlikely that he would spare the actual assailant in order to falsely

implicate someone else. The testimony of an injured witness is accorded a

special status in law. Convincing evidence is required to discredit an

injured witness. In the instant case, victim was the father and grandfather

of PW-2 and PW-1, respectively and they were not expected to let the real

culprit go scot free and to falsely rope in an innocent.

7. PW-2 (Ghanshyam) was taken to DDU Hospital by HC

Raghubir of PCR and was admitted at 09.57 A.M. MLC (Ex.PW-5/C) was

prepared and the nature of injuries were opined „simple‟ caused by blunt

object. PW-6 (Dr.Narnaware, CMO, DDU Hospital) identified signatures

of Dr.Alok on the MLC (Ex.PW-5/C). Dhani Ram was also taken to DDU

Hospital and was admitted at 09.23 A.M. by HC Raghubir of PCR and

MLC (Ex.PW-5/B) was prepared by Dr.Alok and proved by PW-6

(Dr.Narnaware, CMO, DDU Hospital). Dhani Ram remained under

treatment and succumbed to the injuries on 18.07.1998 and DD No. 14B

(Ex.PW-5/J) was recorded. Post-mortem examination on the body was

conducted by PW-3 (Dr.B.Swani, CMO Safdarjung Hospital) on

19.07.1998. Post-mortem report examination (Ex.PW-3/A) records the

following external injuries on the body :

"1. Abrasion 3x2 c.m. present over left termporparital Region 6 c.m. above left ear.

2. Abrasion 2.5x 2 c.m. over left forehead 5.5 c.m. above middle of eye brow.

3. Stiched wound 10 c.m. in length extends from right frontal to right temporal region. Injuries were in U Shape.

4. Abrasion 4x2 c.m. present over right frontroprital region 8 c.m. above right eye brow.

5. Abrasion 1.5 x 1 c.m. over right temporal region 5 c.m.

above right ear.

6. Abrasion 3x2 c.m. over top of right thigh.

7. Abrasion 4x3 c.m. on the top of left thigh margins showing infection.

8. Bed sore wound 7x5 c.m. in interbrutial region."

Injuries were ante-mortem in nature and cause of death was

cranio-cerebral injuries (head injuries) consequent upon blunt force

impact. Injury No.1 to 5 were sufficient to cause death individually and

collectively in the ordinary course of nature. In the cross-examination, the

witness stated that injury No.1 could be caused by a blunt object such as a

brick thrown from a distance. There was no sign of infection of injury

No.1 or 2. Injury No.3 was a surgical interference. Injury No.8 was a bed

sore. Injuries from 1 to 7 were almost of same age. Apparently, there was

no major conflict between the ocular and medical evidence. It is trite law

that minor variations between the medical evidence and oral evidence do

not take away the primacy of the latter. Unless, medical evidence in its

terms goes so far as to completely rule out possibilities whatsoever of

injuries taking place in the manner stated by the eye-witnesses, their

testimony cannot be rejected or discarded. Since, PW-1 and PW-2 had

sustained injuries in the scuffle and brick bats were thrown simultaneously

upon all of them, possibility of PW-1 and PW-2 not exactly noticing the

number of injuries on the body of the deceased could not be ruled out.

They were certain that serious head injuries were caused to Dhani Ram

due to throwing of bricks by the accused. There was direct nexus between

the injuries inflicted to the victim by bricks and his death. The victim

remained admitted in the hospital for about fifteen days. Despite

availability of medical treatment soon after the occurrence, he was unable

to survive. It reflects the impact and force with which injuries were

inflicted by bricks by the appellant. Minor contradictions and

discrepancies highlighted by the appellant‟s counsel are inconsequential

as they do not affect the core of the prosecution case. Non-examination of

independent public witness from the locality is not fatal. Non-recovery of

the bricks / stones with which injuries were inflicted is a lapse on the part

of the Investigating Officer for which the witnesses cannot be held

responsible and their statements cannot be disbelieved or discredited.

8. The defence taken by the appellant is conflicting and

contradictory. In 313 statement, the appellant did not deny his presence at

the spot where he had gone to fetch water. He claimed that when he was

taking water from the water tank the utensils were forcibly removed by

the complainant side and he was assaulted and injured by them. Entirely

contradictory version was narrated by defence witnesses. DW-1 (Rahmit

Ullaha) appeared on 19.05.2000 and his further examination was deferred.

However, he did not opt to appear again. DW-2 (Suraj Pal) and DW-3

(Chaman Lal) deposed that a quarrel had taken place at the spot when

complainant had attempted to take water on priority and it was objected to

by the individuals present at the tanker. This resulted in an altercation and

both the parties started pelting stones. Rashid did not participate in the

throwing of the stones. He came on a bicycle at the spot and sustained

brick bat injury on his neck. He fell down after sustaining injuries and was

taken for interrogation from the spot by the police. Apparently, the

version given by the witnesses is in conflict with the defence taken by the

appellant in his 313 statement as well as suggestions put to the

prosecution witnesses in the cross-examination. There is nothing on

record to show as to when the appellant was taken to hospital for medical

examination. The doctor who medically examined him was not produced

in defence. The defence version inspires no confidence and needs outright

rejection.

9. The impugned judgment is based upon fair appraisal of the

evidence and all the relevant contentions of the appellant have been

considered. I find no sound reasons to interfere with the findings recorded

by the Trial Court. Since, PW-2 (Ghanshyam) had sustained injuries

„simple‟ in nature by blunt object, the offence committed by him fell

under Section 323 IPC. Conviction under Section 324 IPC is altered to

Section 323 IPC.

10. The appellant was awarded RI for seven years with total fine

` 1,500/-, Nominal roll dated 03.11.2000 reveals that he has suffered

incarceration for eight months and fourteen days as on 30.10.2000.

Nominal roll further reveals that he is not involved in any other criminal

case and his overall jail conduct was satisfactory. He was aged about 18 /

19 years on the day of incident. The quarrel had taken place suddenly over

a trivial issue of getting water. There was no pre-planning and the crime

weapon used was bricks available on the roof. The appellant has suffered

the ordeal of trial / appeal for about fifteen years. He has clean

antecedents. There was no previous history of enmity between the parties

and they lived in neighbourhood in the locality. Considering the

mitigating circumstances, sentence order is modified and the substantive

sentence of the appellant is reduced to five years under Section 304 IPC

and six months under Section 323 IPC. Other terms and conditions of the

sentence order are left undisturbed.

11. The appeal stands disposed of in the above terms. The

appellant is directed to surrender before the Trial Court on 31.01.2014 to

serve out the remaining period of sentence. Trial Court record be sent

back immediately.

(S.P.GARG) JUDGE JANUARY 24, 2014/tr