Raju @ Rajpal & Ors. vs The State Of Delhi
2014 Latest Caselaw 3142 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 16th MAY, 2014
                              DECIDED ON : 17th JULY, 2014

+                        CRL.A.No.208/2011

      RAJU @ RAJPAL & ORS.                                ..... Appellants

                         Through :    Mr.R.S.Juneja, Advocate.


                         versus



      THE STATE OF DELHI                           ..... Respondent

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


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

S.P.GARG, J.

1. Raju @ Rajpal (A-1), Sanjay (A-2) and Arun Kumar (A-3)

were convicted under Sections 452/308/34 IPC by a judgment dated

15.01.2011 of learned Addl. Sessions Judge in Sessions Case No. 70/2008

arising out of FIR No. 478/2006 PS Anand Vihar on the allegations that

on 13.09.2006 at about 01.00 P.M. at house No.381, Karkardooma, they

in furtherance of common intention along with co-associate Arjun (facing

trial before Juvenile Court) inflicted injuries to Somwati in an attempt to

commit culpable homicide after committing house trespass. The police

machinery swung into action when information about the quarrel was

conveyed and Daily Diary (DD) No. 13A (Ex.PW-5/A) came into

existence at 13.37 hours at PS Anand Vihar. The Investigating Officer

lodged First Information Report after recording complainant - Santo's

statement (Ex.PW-1/A) by sending rukka (Ex.PW-10/A) at 06.30 P.M.

The statements of the witnesses including the victim - Somwati and

Poonam were recorded. 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 prove their guilt. In

313 statements, the appellants denied their complicity in the crime and

pleaded false implication. They examined DW-1 (Anand) and DW-2 (Har

Kishan) in defence. The trial resulted in their conviction as aforesaid.

Being aggrieved and dissatisfied, they have preferred the appeal.

2. Information about incident that occurred around 01.00 P.M.

was conveyed to the police without any delay resulting in recording of

Daily Diary (DD) No. 13A (Ex.PW-5/A) at 13.37 hours. The investigation

was entrusted to HC Rakesh Kumar who went to the hospital. Since the

victim was unfit to make statement, the First Information Report was

lodged in promptitude after recording complainant - Santo's statement.

Claiming her presence at the spot, Santo disclosed that injuries were

inflicted to Somwati by the appellants and their associate Arjun by iron

rod and dandas.

3. In Court statement as PW-1 (Santo) proved the version given

to the police in its entirety without any variations and implicated the

appellants and Arjun for causing injuries. She attributed specific role to

Arjun whereby he assaulted Somwati on her head with a 'saria' whereas

the appellants who had dandas in their hands gave beatings to her. When

Poonam, her granddaughter, intervened to save Somwati, A-2 hit her with

a danda on her head. Someone made a telephone call at 100. The PCR

arrived and took Poonam and Somwati to Hedgewar Hospital. Somwati

was referred to GTB Hospital and her statement (Ex.PW-1/A) was

recorded. PW-2 (Somwati), the victim, also implicated the appellants and

Arjun for inflicting injuries to her and Poonam with iron rod and dandas.

She also assigned definite and exact role to each of the accused in causing

injuries to her. She disclosed that she remained admitted in Jain Hospital

for about six days. PW-4 (Poonam) corroborated the statement of her

mother - Somwati on major aspects and testified about the presence of the

appellants and Arjun with weapons in their hands causing injuries to her

and her mother. She, however, introduced a contradictory statement

alleging that injuries were also inflicted to PW-1 (Santo). Apparently, she

exaggerated the version. From the testimonies of PW-1 (Santo), PW-2

(Somwati) and PW-4 (Poonam) stands establish that the appellants were

author of the injuries inflicted to the victim. The motive assigned for

implicating injuries was a quarrel which took place with Sundar (A-1's

brother) and Sachin a few days prior to the occurrence. Despite indepth

cross-examination, no material inconsistencies emerged in their

statements. They were not assigned any extraneous consideration to

falsely implicate the appellants and to spare the real offenders. Their

statements are in consonance with medical evidence. PW-8 (Dr.Ram

Million) medically examined Somwati by MLC (Ex.PW-8/A) and was of

the opinion that injuries suffered by her were 'simple' in nature. PW-9

(Dr.Sachin) who medically examined Somwati at the first instance, found

clear Lacerated Wound of 5 cm x 0.3 cm on right parietal region of skull.

The injuries were not self-inflicted or accidental. In 313 statements, the

accused persons did not give plausible explanation to the incriminating

circumstances appearing against them. DW-1 (Anand) gave an

unbelievable version that the injuries suffered by Somwati were due to the

beatings given by her husband Hukam Singh as she wanted to marry her

daughter out of caste against his wishes. No such defence was put to the

witnesses in the cross-examination.

4. Minor discrepancies, exaggerations, improvements and

contradictions highlighted by the appellants' counsel are inconsequential

to affect the core of the prosecution case and to discard the testimonies of

the witnesses including that of the injured in its entirety. The findings of

the Trial Court that the appellants were the author of the injuries after

committing house trespass cannot be faulted.

5. Regarding Section 308 IPC for which the appellants have

been convicted, I am of the view that the injuries were not caused by the

appellants with the intention to commit an offence of culpable homicide.

The quarrel had taken place over a trivial issue. All the parties lived in

neighbourhood and were known to each other since long. The appellants

have clean antecedents and are not involved in other criminal activities.

No multiple repeated wounds were inflicted on the body of the victim.

The injured was discharged from the hospital on the next day of the

incident. The nature of injuries suffered by her was 'simple' caused by

blunt object. Only one wound was found on her body. Apparently, the

injuries were not caused with the avowed object or knowledge to cause

her death. PW-1 (Santo) and PW-4 (Poonam) were not put to any serious

harm though they were also present at the spot. It was a case where the

injuries were caused in a quarrel which took place over a trivial issue and

the appellants in furtherance of common intention voluntarily caused

'simple' hurt with blunt object to the victim Somwati. The offence proved

is under Sections 323/34 IPC. It is relevant to note that allegations were

primarily against Arjun who was armed with an iron rod and inflicted the

blow on the victim's head. It is revealed from the Trial Court record that

Arjun was discharged by an order dated 25.08.2008 as the prosecution

could not file the charge-sheet within limitation. Appellants' conviction is

accordingly altered from Section 308 IPC to Section 323 IPC.

6. Since the conviction is altered from Section 308 IPC to

Section 323 IPC, the sentence order requires modification. The sentence

order records that A-1 was a married man having three married daughters

and an unmarried son; A-2 was having three daughters and two sons; A-3

had a daughter and two sons and all of them were minor children. It

further records that there was no previous involvement of convicts in any

criminal case and they were the sole bread earners of their families.

Taking into consideration the facts and circumstances of the case,

antecedents of the convicts, their age and the circumstances in which the

occurrence took place, it is a fit case to release the appellants on probation

for a period of two years on their entering into a bond in the sum of `

10,000/-, each with one surety each in the like amount to the satisfaction

of the Trial Court to appear and receive sentence when called upon during

two years and in the meantime, to maintain good conduct and not to

indulge into such crime. The necessary bonds would be furnished within

fifteen days before the Trial Court.

7. The sentence order reveals that fine of ` 90,000/- was

imposed out of which ` 75,000/- was paid to Somwati in the Court.

Needless to say that the victim - Somwati has been duly compensated.

8. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith with the copy of the order. A copy of the

order be sent to the Superintendent jail for information.

(S.P.GARG) JUDGE JULY 17, 2014 / tr