Hari Om vs State Of Nct Of Delhi
2014 Latest Caselaw 1120 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : February 24, 2014
                                 DECIDED ON : March 03, 2014

+                                CRL.A.119/2011

       HARI OM                                              ..... Appellant
                          Through :        Mr.Vivek Sood, Advocate.
                          versus

    STATE OF NCT OF DELHI                                  ..... Respondent
                  Through :                Mr.M.N.Dudeja, APP for the State.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Hari Om (the appellant) challenges the legality and

correctness of a judgment dated 30.03.2010 in Sessions Case No.118/07

arising out of FIR No.153/06 registered at Police Station New Usmanpur

by which he was convicted for committing offences under Section

452/308 IPC. By a sentence order dated 31.03.2010, he was awarded RI

for two years under Section 308 IPC and RI for one year with fine

`30,000/- under Section 452 IPC. Both the sentences were to operate

concurrently. `25,000/- were to be paid to the victim as compensation out

of the fine of `30,000/- on realization.

2. Allegations against the appellant in the charge-sheet were

that on 29.04.2006 at 1.30 a.m. at House No.G-183, Maharani Gali No.3,

Jagjeet Nagar, Delhi, he inflicted injuries by an iron rod on the head of the

complainant-Hari Gopal after committing house trespass. Daily Diary

(DD) No. 29/A (Ex.PW-8/A) was recorded at Police Station New

Usmanpur at 1.40 night on getting information about the quarrel. Hari

Gopal was taken to Guru Teg Bahadur hospital, Shahdara, soon after the

occurrence and the MLC (Ex.PW-9/A) records the arrival time of the

patient as 02.45 a.m. The investigating officer lodged First Information

Report after recording complainant's statement (Ex.PW-2/A) by making

endorsement (Ex.PW-3/A) on 29.04.2006 at 09.30 a.m. In the complaint,

the victim implicated Hari Om for causing injuries on his head by an iron

rod. He further gave detailed account as to how and under what

circumstances the accused, who was under the influence of alcohol

entered the house while armed with an iron rod and inflicted injuries to

him. While appearing as PW-2 in Court statement, he proved the version

given to the police at the earliest without any variation. He deposed that

on the night intervening 28-29.04.2006 at around 01.30 a.m. when he was

sleeping in the courtyard of the house, the accused knocked the main door.

After entering inside the house, he asked him why he was not selling eggs

to him and uttered 'Ab main tuje maja chakhaunga." The accused was

carrying an iron rod about 2 ½ feet in size and hit on his head as a result

of which he sustained injuries and was taken to hospital by the police

where his statement (Ex.PW-2/A) was recorded. He identified the iron

rod (Ex.P-1) used in the crime. Despite opportunities given, the appellant

did not opt to cross-examine the witness. The testimony of the victim,

thus, remained unchallenged and unrebutted. PW-1 (Bharat Singh),

complainant's son, deposed on similar lines and corroborated the version

of his father in its entirety. He stated that on hearing a noise at around

01.30 a.m. from the courtyard, he got up and saw the appellant-Hari Om

quarrelling with his father. Before he could reach the spot, he gave an

iron blow on the head of his father. The accused was heavily drunk. The

accused did not cross-examine the witness on 03.05.2007 and 2.2.2009

despite opportunities given. The facts proved on record remained

unchallenged. The accused did not attribute any specific ulterior

consideration to the witnesses to make false statements and to implicate

him in the incident. The accused was also taken to GTB hospital and was

medically examined vide MLC (Ex.PW-9/B) which confirm his presence

at the spot. The accused did not explain as to how and under what

circumstances he happened to enter inside the complainant's residence

without any specific purpose at odd hours. The ocular evidence is in

consonance with medical evidence. PW-9 (Dr.M.Das) proved MLC

(Ex.PW9/A) of the victim prepared by Dr.Rajni. As per the MLC, the

injured had lacerated wound over right parietal region measuring 5 cm x

.5 cm. PW-10 (Dr.M.Momin) proved endorsement of Dr.Sandeep Rai on

the MLC (Ex.PW9/A) where the nature of injuries was opined 'grievous'.

Recovery of crime weapon (Ex.P-1) from the possession of the accused

further connects him with the crime. As per MLC (Ex.PW-9/B), the

appellant was found to have consumed liquor. There was no occasion for

him to enter inside the house of the complainant/victim while under the

influence of liquor during night hours when both PW-1 and PW-2 were

sleeping in the house. The motive assigned to inflict injuries was that the

complainant had declined to sell eggs to him. The accused did not give

plausible explanation to the incriminating circumstances put to him under

Section 313 statement. DW-1 (Amar Singh) and DW-2 (Kishan Pal) are

not witnesses to the occurrence and have given general statement about

the good character and nature of the appellant. In the absence of prior

animosity or ill-will, the victim and his son are not expected to falsely

implicate an innocent and let the real offender go scot free. The findings

of the trial court are based upon fair appraisal of the evidence and warrant

no interference.

3. Appellant's counsel in the alternative prayed to modify the

sentence order as the appellant has already undergone substantive

sentence of about eight and a half months and is not a previous convict.

The record reveals that injuries inflicted to the unarmed complainant,

sleeping in his house as usual were without provocation over trivial issue

of non-supplying eggs. The accused was under the influence of the liquor

and was armed with an iron rod of sufficient length. He committed house

trespass after consuming liquor and inflicted injuries 'grievous' in nature

on the vital organ of the complainant; a senior citizen aged 75 years.

Considering these facts and circumstances of the case, I find no sufficient

mitigating circumstances to modify the sentence order by taking a lenient

view. Conviction and sentence awarded by the trial court are sustained.

The appeal is unmerited and is dismissed.

4. The appellant is directed to surrender before the Trial Court

on 10.03.2014 to serve the remaining period of substantive sentence. The

Registry shall transmit the Trial Court records forthwith.

(S.P.GARG) JUDGE March 03, 2014/sa