Rajiv @ Raj vs State
2014 Latest Caselaw 2982 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : MAY 06, 2014
                                   DECIDED ON : JULY 08, 2014

+      CRL.A. 1226/2011


       RAJIV @ RAJ                                       ..... Appellant
                              Through : Mr.Azhar Qayum, Amicus Curiae.

                              Versus

       STATE                                              ..... Respondent
                              Through : Mr.M.N.Dudeja, APP.

+      CRL.A. 1536/2011

       SUNIL KUMAR                                       ..... Appellant
                              Through : Mr.Azhar Qayum, Amicus Curiae.

                              Versus

       STATE                                              ..... Respondent
                              Through : Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

Crl.M.A.No.11725/2011 (Delay) in Crl.A.No.1226/2011 Crl.M.A.No.19424/2011 (Delay) in Crl.A.No.1536/2011

For the reasons mentioned in the applications, the delay in filing the appeals is condoned.

The applications stand disposed of.

Crl.A.No.1226/2011 & Crl.A.No.1536/2011

1. The appellants Rajiv @ Raj (A-1) and Sunil Kumar (A-2)

impugn a judgment dated 11.03.2010 in Sessions Case No.23/10 arising

out of FIR No.134/09 registered at PS Timar Pur by which they were

convicted under Section 307/34 IPC. Vide order dated 16.03.2010, they

both were sentenced to undergo RI for eight years with fine `5,000/- each.

2. The prosecution case as reflected in the charge-sheet was that

on 05.08.09 at about 09.30 pm at Budh Bazar Road, Timar Pur, the

appellants in furtherance of common intention inflicted injuries to the

complainant-Tahir in an attempt to murder him. Duty Ct.Rajender at

Trauma Centre informed about the admission of injured-Tahir stabbed by

some boys while purchasing household articles in the market and the knife

was embedded in the head. This information was reduced into writing

and DD No.41 B (Ex.PW-6/A) came into existence at 11.35 pm. The

investigation was assigned to ASI Mahender Singh who after recording

Tahir's statement (Ex.PW-3/A) lodged First Information Report by a

rukka (Ex.PW-6/D). In the complainant given to the police at the first

available opportunity, the victim implicated A-1, A-2 and their associate

Lalla (since Proclaimed Offender) ascribing definite role to A-1 inflicting

a blow with churi on his head and A-2 assaulting him on neck with a

sharp object. Statements of witnesses conversant with the facts were

record. After completion of investigation, a charge-sheet was submitted

against the appellants; they were duly charged and brought to trial. The

prosecution examined ten witnesses to substantiate the charges. In 313

statements, the appellants pleaded false implication without producing any

evidence in defence. The trial resulted in their conviction as aforesaid.

3. The occurrence in which the victim sustained injuries on his

body occurred at around 09.30 pm. PW-1 (Raju), Tahir's father, disclosed

that when at around 09.45 pm, Salman brought Tahir, his son, in an

injured condition at his tea shop, he was bleeding from his head and throat

and a knife was found inserted in his head. He immediately took Tahir to

Trauma Centre and from there referred to Irwin hospital. PW-4 (Salman)

who had accompanied Tahir to Budh Bazar to purchase household articles

also deposed that after the victim was injured, he took Tahir to the tea

shop of his father and thereafter the victim was taken to Trauma Centre.

He fairly admitted that he did not intervene to save the victim due to fear.

Only after the assailants fled the spot, he gathered courage to take him at

his father's tea shop. MLC (Ex.PW-2/A) at Trauma Centre reveals that

the patient was admitted by his father-Raju with the alleged history of

'assault' at 10.30 pm. Two injuries on the neck and head of the victim

were noticed. Apparently, there was no delay in lodging the report with

the police. Lodging of FIR in promptitude ruled out any false implication

of the appellants who were named therein with definite role. PW-2

(Dr.Dhiraj Kumar), medically examined Tahir by MLC (Ex.PW-2/A) and

found the following injuries on his body:-

(i) Lacerated wound on right side of neck, size 7 cm x .5 cm x .5

cm.

(ii) Penetrating injury on the left temporal area with knife partly

penetrating the skull.

He referred Tahir for x-ray of skull to neuro surgery ENT as the

injury was sharp and penetrating. PW-5 (Dr.P.N.Pandey), Head Neuro

Surgery, Lok Nayak hospital examined and operated Tahir for brain injury

caused by a penetrating weapon. He was discharged on 15.08.09. He

further revealed that a metallic knife penetrated in the brain through left

frontal bone caused brain damage and was removed during surgery and

the brain was repaired by a team of doctors. The nature of injuries as

proved by Dr.J.K.Basu (PW-10) was 'grievous' in nature. These injuries

cannot be considered self-inflicted or accidental due to fall on the ground

as alleged. The photographs (Ex.PW-3/1 to Ex.PW-3/5) speak volume of

the brutality with which the stab blow was given on the head of the

victim. In fact, the injuries suffered by the victim are not under challenge.

The appellants pleaded that the victim was thrashed by someone for

teasing or molestation. The appellants did not produce any defence to

substantiate their charge and put conflicting suggestions in the cross-

examination. No such suggestion was given to the victim if he was

inflicted injuries by someone because of teasing. The appellants did not

specify as to who was teased and why no complaint was lodged for that.

The victim, who sustained multiple injuries on vital parts of the body was

not expected to spare the real offender and to falsely implicate the

appellants with whom he had no prior animosity and was well acquainted

with them before.

4. In Court statement PW-3, Tahir fully proved the version

given to the police without any deviations. He highlighted that on

05.08.2009 at about 9.00 pm, when he had gone to Budh Bazar, Timar Pur

for purchasing some household articles. A-1, A-2 and Lalla (Proclaimed

Offender) met and caught hold of him. A-1 accused him of implicating

his brother in a case of theft. When he replied in the negative, on the

exhortation of A-1 (Ise Pakar, Ise Aaj Sabak Sikhayen Ge), Lalla caught

hold of him and A-1 inflicted a knife blow on his head. A-2 inflicted

some pointed object on his right side neck after his fall (the Trial Judge

noted a cut mark on the right side of the neck of the witness as shown

during his deposition). He further deposed that his cousin Salman took

him to his father's tea shop. In Trauma Centre, his statement (Ex.PW-

3/A) was recorded. He identified the knife (Ex.P-1) used in the crime.

Despite lengthy and in-depth cross-examination, no material discrepancies

could be extracted to shatter his version. He elaborated the incident which

continued for about five minutes after he objected to a slap given by A-1,

he stabbed him on head. He denied the suggestion that A-1 was falsely

implicated due to a complaint lodged by his wife against him in the police

station lodged by his wife. No such complaint was placed on record. In

the absence of prior animosity, it is highly improbable that the

complainant would screen and spare the real assailants and falsely enrope

the appellants. PW-4 (Salman) has corroborated this version in its

entirety. His presence at the spot was quite natural and probable as he had

gone to the market with him and had shifted Tahir to his father's tea stall

nearby. He gave reasonable and plausible explanation that due to fear of

life, he could not intervene to save Tahir.

5. Ocular testimony of the prosecution witnesses is in

consonance with the medical evidence referred above and there is no

conflict between the two. Since the injuries were caused without any

provocation on vital parts of the body by sharp weapon, the findings of the

trial court for recording conviction under Section 307/34 IPC cannot be

faulted. The unarmed victim was taken by surprise without having any

inkling of impending danger in the market where he had gone in routine to

purchase household articles. The appellants and his associate Lalla (PO)

dared to attack or assault the victim to the full view of the public in the

market. It shows how desperate they are and have scant regard or fear of

law. The trial court record reveals their involvement in many criminal

cases. Nominal roll dated 12.02.2014 reveals that A-1 suffered conviction

in FIR No.190/09 under Section 395/397/34 IPC Police Station Dwarka;

FIR No.576/08 under Section 379/356 IPC Police Station Timar Pur; and

FIR No.76/10 under Section 324 IPC Police Station Subzi Mandi. His

conduct in jail was also unsatisfactory and was given punishments on

04.06.10, 30.03.11, 10.04.11, 06.06.11 and 23.12.11. A-2's nominal roll

dated 10.02.2014 shows that he was convicted in FIR No.378/2008 under

Section 392/397/411 IPC Police Station Timar Pur and FIR No.306/2006

under Section 394/411/34 IPC Police Station Timar Pur. He was also

awarded punishments due to his unsatisfactory jail conduct on number of

dates. The appellants having criminal antecedents deserve no leniency.

6. In the light of the above discussion, the appeals filed by the

appellants are dismissed as unmerited. Trial Court record be sent back

forthwith along with the copy of this order.

(S.P.GARG) JUDGE JULY 08, 2014 sa