Zafar Khan vs State (Govt Of Nct Delhi)
2014 Latest Caselaw 2752 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 26.05.2014.
                                    Judgment delivered on : 28.05.2014.

+      CRL.A. 311/2006
       ZAFAR KHAN
                                                           ..... Appellant
                           Through        Ms. Suman Chauhan, Adv.

                           versus

       STATE (GOVT OF NCT DELHI)
                                                            ..... Respondent
                           Through        Ms. Fizani Hussain, APP along
                                          with SI Manish Kumar.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment and order

of sentence dated 03.03.2006 and 04.03.2006 respectively wherein he

has been convicted under Section 325/34 of the IPC (other two co-

accused have been declared 'proclaimed offenders') and has been

sentenced to undergo RI for a period of 3 years and to pay a fine of

Rs.10,000/- of which Rs.8,000/- was to be released to the victim; in

default of payment of fine, he was to further undergo SI for 6 months.

2 The version of the prosecution was revealed in the statement of

Suresh (PW-2) wherein it was alleged that on 15.03.2002 at about 10:00

pm when he had gone to Bengali Basti, ward No. 2, Mehrauli two boys

of the locality started abusing him and objected as to why he has come

there despite the fact that they had earlier told him not to visit Bengali

Basti; meanwhile two more boys had come there and all four of them

caught hold of him and started beating him. He became unconscious. He

was taken to AIIMS hospital in a PCR where he was medically

examined by Dr. Pawan (PW-8). His MLC was proved as Ex.PW-7/C.

The MLC revealed that the victim at the time of his admission had

consumed alcohol; he was drowsy. The X-ray of his pelvis, nasal area

and chest was recommended. He was referred to the ENT department.

The X-ray of his chest revealed a fracture on the 6th, 7th and 8th rib. The

X-ray was proved through Dr. Lavina Verma (PW-3) as Ex.PW-3/A.

The opinion on the MLC of the victim was thus opined to be

'grievous'/'dangerous'.

3 The accused was arrested on the following day i.e. on 16.03.2002

vide memo Ex.PW-1/C at 10:30 pm by the Investigating Officer SI

Braham Parkash (PW-7) who had been accompanied by HC Vijender

(PW-1). The disclosure statement of the accused was recorded. The

place of occurrence was pointed out vide memo Ex.PW-7/G. No

recovery was effected pursuant to the said disclosure statement.

4 In the statement of the accused recorded under Section 313 of the

Cr.PC, he pleaded innocence stating that he has been falsely implicated

in the present case.

5      No evidence was led in defence.

6      On the basis of the aforenoted evidence collected by the

prosecution, the accused was convicted and sentenced as aforenoted.

7 On behalf of the appellant, arguments have been addressed in

detail by learned amicus-curiae. It is pointed out that in the first

statement of the victim recorded on 16.03.2002, the victim had

categorically stated that he does not know the names of the accused

persons. He was admittedly conscious at that time. Thereafter, a

supplementary statement is alleged to have been recorded by the

Investigating Officer on the same day i.e. on 16.03.2002 when all of a

sudden, the names of three persons had surfaced including the name of

the present appellant; submission being that even as per this

supplementary statement, there is a reference to Zafar wherein the

complainant had stated that the third person was referred to as Zafar

meaning thereby that the appellant was not known to the injured and in

the absence of any other detail i.e. parentage and appearance of the

appellant, there was nothing to connect the appellant with the crime. On

this ground alone, the appellant is entitled to a benefit of doubt and a

consequent acquittal. The second submission of the learned amicus

curiae being that the testimony of PW-2 who is the star witness of the

prosecution is full of contradictions and to nail the accused only on this

version would be highly unjust as this statement does not reconcile with

his statement given to the Investigating Officer under Section 161 of the

Cr.PC. Attention has been drawn to the testimony of PW-2 recorded on

oath in Court. It is further pointed out that the arrest of the accused took

place on 16.03.2002 by the Investigating Officer (PW-7) who had been

accompanied by PW-1; submission being that neither of the aforenoted

witnesses have stated that the complainant had accompanied them and

how the accused came to be arrested in the absence of detail of the

accused is a question mark which has not been answered.

8 Arguments have been refuted. It is pointed out that on no count,

does the impugned judgment call for any interference. It is pointed out

that the testimony of PW-2 clearly establishes that Zafar was one of the

accused persons and he was living in the Bengali Basti where admittedly

the incident had taken place; thus the identity of the appellant stood fully

established. Version of PW-2 also suffers from no infirmity.

9 Arguments have been heard. Record has been perused.

10 The incident had occurred on 15.03.2002 at about 10:00 pm. The

first statement of the injured (Ex.PW-2/A) was recorded by the

Investigating Officer on 15.03.2002 on which statement the rukka had

been dispatched at 12:10 am meaning thereby that the incident having

occurred at 10:00 pm, this statement of the victim had been recorded

within the next 2 hours i.e. before 12:05 am on 16.03.2002. Ex.PW-2/A

has been perused. This statement details the incident wherein PW-2 has

stated that when he had gone to ward No. 2 of Bengali Basti, Mehrauli

at about 10:15 pm, two boys came there and started abusing him.

Thereafter, they were joined by two other persons; he was attacked by

them and they beat him up. He lost his consciousness; he was removed

to the hospital; in this statement it was categorically stated that Suresh

(PW-2) does not know their names but he may be able to identify them

by appearance. Thereafter on the same day, a supplementary statement

of the victim was recorded by the Investigating Officer; this statement

stated that out of four boys who had attacked him, one was named as

Rashid, second was Gulzar and third person was referred to as 'Zafar'

(the present appellant). Thereafter these three persons were joined by

four other persons.

11 Testimony of PW-7 is also relevant. He is the Investigating

Officer. He had recorded both statements of the injured i.e. Ex.PW-2/A

on the basis of which rukka was dispatched and FIR had been registered

and also his supplementary statement. In Ex.PW-2/A, it was stated that

although the injured had stated that he does not know the names of the

persons but thereafter on the same day in the early morning hours after

his pain had reduced, he had given details of the accused persons. The

details of co-accused by their complete names had been given; the

present appellant had also been named; Zafar was the name revealed in

this statement.

12 The fact that Zafar was a resident of Bengali Basti, Ward No. 2,

Mehrauli is an admitted fact. It was in the first version of PW-2 that the

details of Ward No.2, Bengali Basti, Mehrauli had been given; it was in

this first statement itself that PW-2 had stated that two boys had

started hurling abuses at him when he had reached Bengali Basti and

those boys were living in the same locality; they objected to his visit to

Ward No. 2 as he had earlier been asked not to come there. It is thus

clear that in the very first version of PW-2 (Ex.PW-2/A) it has come on

record that his assailants were the persons living in Bengali Basti. In the

supplementary statement, the name of Zafar was revealed. It is also not

the case of the present appellant that he is not residing at Bengali Basti.

He was arrested at 10:30 pm from his residence by PW-7 who had been

accompanied by PW-1. The identity of the present appellant thus stood

fully established. Argument of the learned amicus curiae on this score is

thus rejected.

13 The testimony of PW-2 is cogent and coherent. It matches the

version which he has given before the Investigating Officer. On oath in

Court, PW-2 had detailed the incident and has explained the manner in

which he was attached by the accused persons; their objection being to

the fact that he had come to the same area where he had been asked not

to come. PW-2 had disclosed that he received injuries on armpit and he

lost his consciousness. In his cross-examination, he was confronted with

his version Ex.PW-2/A which matched the version on oath in Court

reiterating that two boys had given filthy abuses to him and had

objected to his coming to their Basti as earlier they had asked the

appellant not to visit their Basti.

14 The MLC of the victim (Ex.PW-7/C) has been perused. His X-ray

report proved as Ex.PW-3/A had evidenced a fracture of the right 6th, 7th

and 8th rib. The victim stayed in the hospital for 18 days. His medical

record speaks volume. In fact this medical record i.e. Ex.PW-3/A and

Ex.PW-7/C matches his ocular versions completely. Injuries have been

inflicted in his armpit as also on his ribcage.

15 The prosecution has been able to prove its case to the hilt. It has

been established through both oral and documentary evidence that the

appellant along his accomplices had voluntarily caused a grievous injury

to the injured. However this Court notes the fact that this incident had

occurred on a spur of the moment; it was not premeditated. This has

come in the version of PW-2.

16 Thus while maintaining the conviction of the appellant under

Section 325 of the IPC, this Court is inclined to modify the sentence and

the sentence of RI 3 years is modified to RI 1 year. This is keeping in

view the fact that the incident having occurred in 2002 i.e. more than

one decade ago and both, the victim and the accused at that time were

young in years; the quarrel had erupted suddenly when the injured was

subjected to a verbal duel followed by a physical assault.

17 The nominal roll of the appellant reflects that he has undergone

incarceration of about 6 months. The appellant be taken into custody to

serve the remaining sentence. Bail bonds cancelled. Surety Discharged.

18     Appeal disposed off in the above terms.



                                              INDERMEET KAUR, J

MAY 28, 2014
A