Rakesh vs State
2014 Latest Caselaw 2365 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Decision: 09.05.2014

+       CRL.A. 588/2010

        RAKESH                                                   ..... Appellant
                                  Through: Mr V.K. Shukla, Mr. A.K. Tripathi, Mr.
                                  Saral Chaturvedi & Mr. B.R. Pandey, Advs.

                                  versus
        STATE                                                  ..... Respondent
                                  Through: Ms. Ritu Gauba, APP for State

                                  And
+       CRL.A. 602/2010

        PAWAN                                                    ..... Appellant
                                  Through: Mr. Sitab Ali Chaudhary & Mr. Md.
                                  Hanzala Kazim, Advs.

                                  versus
        STATE                                                  ..... Respondent
                                  Through: Ms. Ritu Gauba, APP for State

                                             And
+       CRL.A. 1143/2010

        PRAHLAD                                                  ..... Appellant
                                  Through:     Mr Banamali Shukla and Mr Shambhu
                                               Sharan Shukla, Advs. with appellant in
                                               person.
                                  versus
        STATE                                                    ..... Respondent
                                  Through: Ms. Ritu Gauba, APP for State
        CORAM:
        HON'BLE MR. JUSTICE V.K. JAIN

                                           JUDGEMENT

V.K. JAIN, J. (Oral)

On 02.10.2006, at about 9.30 PM, Police Station Uttam Nagar received

information with respect to a quarrel at Barkat Ram Hospital, Shani Bazar,

Hospital Road. The information was recorded vide DD No.47A and a copy of

the said DD was given to ASI Sanwal Mal, for investigation. When the

aforesaid police officer reached the spot, the complainant Naveen Kumar, S/o

Om Prakash was present there. The complainant handed over to him, the

appellants Pawan, Prahlad and Rakesh, whom he had apprehended with the

help of his companion Manish Kumar and other persons. The police officer

recorded the statement of Naveen Kumar who inter alia told him that on that

day at about 9.00 PM, he along with his companion Naveen Kumar was going

home on his motorcycle. When he stopped in Shani Bazar at Uttam Nagar to

make some purchase and reached near Barkat Ram Hospital on Hospital Road,

they found three boys quarrelling with a rickshaw puller. They asked the boys

not to quarrel with the rickshaw pullers. Another boy on motorcycle also asked

those three persons not to quarrel with the rickshaw puller. Thereupon, those

persons released the rickshaw puller and two of them took out knives and one

of them took out an iron chheni. Those persons attacked him, his companion

Naveen as well as the other person who had come on motorcycle, using the

aforesaid weapons. However, the persons who gathered on spot apprehended

those three persons, who were later handed over to the police officer.

2. The case of the prosecution is that one knife having blade measuring 24

centimetre and wooden handle measuring 12 centimetre was seized from the

appellant Pawan, one knife with a blade having length of 24.5 centimetre and

wooden handle measuring 12 centimetre was seized from Prahlad and one iron

Chheni sharp on one side and blunt on the other side and measuring 22

centimetre was seized from Rakesh. All the three appellants were arrested on

the spot.

3. When Naveen S/o On Prakash was examined in the hospital, it was

found that he had a deep cut from the base of his left ring finger till the mid of

end and there was no finger movement in the ring finger. When the other

injured Naveen S/o of Ram Kumar was examined, it was found that he had a

large CLW over right temporal parietal region and the skin on the wound had

been lost. He also had abrasions on his right thumb. Another injured Imran Ali

was found to have CLW at the base of his right thumb and occipital region

which were skin deep. There was numbness in his left hand finger and radial

pulsation was negative.

4. All the three appellants were charge-sheeted and later charged under

Section 308 of IPC read with Section 34 thereof, for the injury they had caused

to Naveen S/o Om Prakash, Naveen S/o Ram Kumar and Imran Ali. Since they

had pleaded not guilty to the charges, as many as 11 witnesses were examined

by the prosecution. Three witnesses were examined in defence.

5. The injured Naveen Kumar, S/o Om Prakash came in the witness-box as

PW-5 and inter alia stated that on the day of this incident, he along with his

friend Naveen, S/o Ram Kumar went to Shani Market, on motorcycle for

purchasing goods. When they reached Shani Bazar, his bike touched the

accused Pawan. Thereupon, Pawan started slapping him 30-40 times, whereas

accused Prahlad and Rakesh started beating him. Two of them took knives and

one took out a chisel and all of them started beating them. Pawan hit him with a

knife on his left hand, whereas Rakesh hit him on the forehead with chisel.

Pawan hit Naveen, S/o Ram Kumar with knife. The accused also hit other

person with knife and chisel. He informed his parents who, in turn, informed

Police Control Room. The police reached the spot and took him to Gandhi

Nursing Home.

The other injured Naveen, S/o Ram Kumar came in the witness-box as

PW-6 and inter alia stated that when they reached near Shani Bazar Chowk,

their motorcycle collided with accused Pawan, whereupon the accused persons

started beating his friend Naveen, S/o Om Prakash. When he (the witness) got

down from the motorcycle, the accused started beating him. Pawan took out a

knife and hit him firstly on his head and then on his right hand.

The third injured Mohd. Imran came in the witness-box as PW-4 and

stated that when their motorcycle collided with a person, five-six persons

started beating him. One of them hit him with a knife on his head and left hand

as a result of which he sustained injuries and became unconscious. He,

however, could not identify the persons who had attacked him.

6. PW-3 Manoj Kumar inter alia stated that on 02.10.2006, he received a

telephone call informing him that his cousin brother Naveen, S/o Ram Kumar

and Naveen, S/o Om Prakash had been stabbed by someone in Uttam Nagar,

Hastal, near Barkat Ram Hospital. On reaching the spot, he found his cousin

brothers there in injured condition. The witness also identified the accused

persons as the persons who were apprehended by the public and were present

on the spot. He claimed that the accused Rakesh had a chisel with him, whereas

the other two accused had knives in their hands.

PW-7 Constable Mahabir stated that on 02.10.2006, he along with ASI

Sanwarmal went in front of Barkat Ram Hospital, Hastal Road, Uttam Nagar,

where the injured Naveen met them. The accused Pawan, Prahlad and Rakesh

were also present there having been over-powered by the public and knives as

well as chisel were recovered from them.

PW-9 ASI Sanwarmal also deposed on the same lines and claimed that

when they reached the spot, complainants Naveen Kumar, S/o Om Prakash and

Naveen, S/o Ram Kumar as well as the members of the public handed over to

them, accused Pawan, Prahlad and Rakesh. Prahlad and Pawan had knife in

their hands, whereas Rakesh had a chisel with him.

PW-10 Dr. Pawan Gandhi examined the injured Naveen, S/o Om

Prakash in the hospital on 02.10.2006 and found a deep cut from the base of the

left ring finger till the mid of end (anterior). He found no finger movement in

the ring finger. He prepared the MLC of Naveen Ex.PW-10/A. This doctor

also examined the other injured Naveen S/o Ram Kumar and found a large

CLW over right temporal parietal region as well as abrasion on his right thumb.

The MLC of Naveen Kumar, S/o Ram Kumar Ex.PW-10/B was prepared by

this witness.

PW-11 Dr. S.K. Bhateja examined the injured Mohd. Imran Ali on

02.10.2006 and found deep cut wound on his left wrist, CLW on the base of his

right thumb as well as a CLW on his occipital region which was skin deep.

7. In their statement under Section 313 Cr.P.C., the appellants denied the

allegations against them and claimed to be innocent.

8. DW-1 Ms. Kamla stated that at about 10.00 PM on 02.10.2006, two

police officials came to their house and took Rakesh and Pawan with them. On

making enquiry at the police station, they came to know that they had been

falsely implicated in the present case.

DW-2 Smt. Kanti has corroborated the deposition of DW-1 and she also

claimed that the aforesaid accused were taken by two police officials at about

10.30 PM on 02.10.2006.

DW-3 Shri Ashok Kumar also corroborated the deposition of DW-1 and

DW-2 and stated that two police officials had taken Pawan and Rakesh with

them.

9. Vide impugned judgment dated 09.04.2010, all the appellants were

convicted under Section 308/34 of IPC and vide impugned Order on Sentence

dated 12.04.2010, they were sentenced to undergo RI for two years each and to

pay fine of Rs 5000/- each or to undergo SI for three months in default. Being

aggrieved from their conviction and sentence awarded to them, the appellants

are before this Court by way of these appeals.

10. The leaned counsel for the appellant Prahlad has assailed the impugned

decision on the following grounds:-

i.      the injuries, if any, were self-inflicted;

ii.     the accused were not medically examined though they were stated to be

under influence of drug;

iii.    according to PW-4 Mohd. Imran, 5-6 persons had given beating to them,

but only three persons have been prosecuted;

iv.     one witness, namely Mohd. Imran did not support the prosecution.

11. I do not find any merit in the contentions advanced by the learned

counsel for the appellant - Prahlad. There could be no reason for the injured

person to cause injuries to themselves. This is more so, when the appellants do

not claim any previous enmity. Even if some of the culprits were not

prosecuted, that does not become a ground for acquittal of those charge against

whom stands duly proved. Mohd. Imran supported the prosecution case, as

regards the incident and injuries were also caused to him. His failure to identify

the accused persons loses significance, since they have been identified by the

other witnesses and were apprehended on the spot.

Rakesh

12. According to PW5 Naveen Kumar S/o Om Prakash, when the

motorcycle hit the accused Pawan, he gave beatings by all the three accused

namely Pawan, Prahlad and Rakesh and thereafter two of them took out knives

and one took out a chisel. He claimed that Rakesh had hit him with chisel on

his forehead. No other specific injury was imputed by the witness to the

appellant Rakesh. A perusal of the MLC of this witness prepared at Gandhi

Nursing Home does not indicate any injury at all on his forehead. He had only

deep cut from the base of left ring finger till mid of the hand (interior) and no

finger movement of his ring finger was noticed. A sharp cut was also found on

his body though the MLC does not indicate at which part of the body the said

sharp cut was noticed. Therefore, the deposition of the witness Naveen S/o Om

Prakash, imputing injuries on his forehead to the appellant Rakesh cannot be

accepted. He did not impute injuries at other parts of his body to the appellant -

Rakesh.

Admittedly, the incident in question was not a result of any pre-planning

or pre-meditation and there was no previous enmity between the witnesses on

the one hand and the accused persons on the other. The incident occurred all of

a sudden on account of the motorcycle having touched the appellant Pawan. In

these circumstances, the appellant Rakesh could not have anticipated that his

co-accused would be using the weapons attributed to them or would cause

injuries using those weapons at some vital part of the body of the injured

persons. Therefore, it would be difficult to say that he shared a common

intention with any of his co-accused to do an act with such intention or

knowledge and under such circumstances that if death was caused by such act

he would be guilty of culpable homicide not amounting to murder. The

appellant Rakesh, therefore, is liable to be convicted only under Section 323 of

IPC.

Pawan

13. According to the injured Naveen S/o Om Prakash, Pawan besides

slapping him 30-40 times and giving knife blow on his left hand, had caused

injury to Naveen S/o Ram Kumar with a knife. The injured Naveen S/o Ram

Kumar inter alia stated that Pawan had hit him with a knife on his head as well

as on his right hand. PW4 Mohd. Imran stated that one person had hit him with

a knife on his head and left hand. However, he could not tell who had caused

injuries using knife on his head and his left hand. A perusal on the MLC of the

injured Naveen Kumar S/o Ram Kumar would show that he had clean lacerated

wound (CLW) with skin loss over right temporal region besides abrasion in his

right thumb. The CLW could not have been caused from the blade of the knife

though it could have been caused from the handle of the knife. I have perused

the sketches of the knives seized from the appellant Pawan and Prahlad

Ex.PW7/A & Ex.PW7/B. Both the sketches indicate that the knives alleged to

have been seized from them were sharp edged weapons. Therefore, the injury

to Naveen Kumar S/o Ram Kumar could not have been caused using the blade

of these knives. If the appellant Pawan had caused injuries on the head of

Naveen S/o Om Prakash from the handle side of the knife, it would be difficult

to say that he did so with an intention or knowledge and under such

circumstances that if by that Act he caused death he would be guilty of

culpable homicide not amounting to murder. Therefore, the offence under

Section 308 of IPC is not made out against the appellant Pawan on account of

the injury found on the person of Naveen S/o Ram Kumar.

Though Imran claimed that he was given a knife blow on his head and

his left hand, since he did not identify the person who caused those injuries to

him it cannot be said that whether the injuries to him were given by the

appellant Pawan or the appellant Prahlad. A perusal of the deposition of PW11

Dr. S.K. Bhateja would show that Imran had CLW at the base of right thumb as

well as on the occipital region. As noted earlier CLW could not have been

caused using the blade of the knives alleged to have been seized from the

appellants Prahlad and Pawan. Therefore, either those injuries could have been

caused using the chheni which is alleged to have been recovered from the

appellant Rakesh or from the handle of the knife alleged to have been seized

from Pawan and Prahlad. None of the witnesses has imputed the injuries on

the occipital region of Imran to Rakesh. In fact, according to the injured the

aforesaid wounds were caused to him by a knife. The inference, therefore,

would be that either the appellant Prahlad or the appellant Pawan caused those

injuries to him using the handle of the knife for the purpose. Therefore,

offence under Section 323 and not the offence under Section 308 of IPC is

made out against the appellant - Pawan on account of the injuries found on the

person of the injured Mohd. Imran and Naveen son of Ram Kumar. However,

he would be guilty of the offence punishable under Section 324 of IPC for

giving a cut blow, using the knife from the blade side, to the injured Naveen

son of Om Prakash.

Prahlad

14. It has come in evidence that all the three accused had caused injuries to

PW5 Naveen Kumar S/o Om Prakash and PW6 Naveen Kumar S/o Ram

Kumar. Therefore, all of them would be guilty of the offence punishable under

Section 323 of IPC read with Section 34 thereof.

Though in the MLC the injuries have been opined to be grievous, there

is nothing on record to show that the aforesaid injuries were grievous hurt

within the meaning of Section 320 of the Indian Penal Code.

15. For the reasons stated hereinabove, while acquitting them of the charges

under Section 308/34 of IPC, all the appellants are convicted under Section

323/34 thereof. The appellant - Pawan is also convicted under Section 324 of

IPC, for giving cut blow to Naveen son of Om Prakash from a knife. A perusal

of the nominal rolls of the appellants dated 13.04.2010 shows that the appellant

Prahalad has undergone 9 months and 16 days, appellant Pawan has undergone

1 month and 10 days and appellant Rakesh has undergone 1 month and 10 days

in jail. Pawan, however, claims to have spent more than one year in jail. In the

facts & circumstances of the case, the appellants are given benefit of probation.

Accordingly they are released on furnishing bonds of peace and good conduct,

in the sum of Rs.10,000/- each, with one surety each of the like amount, to the

satisfaction of the trial court concerned for a period of one (1) year each.

During the period of probation the appellants shall maintain peace and good

conduct and refrain from committing any crime. They shall appear, as and

when directed, to receive the sentence imposed on them. The bonds will be

furnished within four (4) weeks from today. They are also directed to pay

Rs.10,000/- each as compensation. The appellant-Rakesh would pay

compensation by way of pay order in the name of the injured Naveen Kumar

S/o Ram Kumar. The appellant - Pawan shall pay compensation by way of

pay order in the name of the injured Naveen Kumar S/o Om Prakash. The

appellant-Prahlad shall pay compensation by way of pay order in the name of

the injured Mohd. Imran. In the event of default in furnishing the bond and/or

payment of compensation within four (4) weeks, the appellants shall undergo

RI for one (1) year each.

The appeals stand disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent for

information and necessary action.

The LCR be sent back along with a copy of this order.

V.K. JAIN, J.

MAY 09, 2014 BG/b'nesh