Tinkoo vs State
2014 Latest Caselaw 2756 Del

R-93
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on :23.06.2014
                                  Judgment delivered on :28.05.2014

+      CRL.A. 315/2006

       TINKOO                                      ..... Appellant

                         Through       Mr.K.Singhal, Advocate.

                         versus

       STATE                                       ..... Respondent

                         Through       Ms.Kusum Dhalla, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Appellant is aggrieved by the impugned judgment dated

25.4.2006 and order of sentenced dated 27.4.2006 respectively wherein

the appellant had been convicted under Section 326 of the IPC and

sentenced to undergo RI for 4 years and to pay a fine of Rs.5000/- in

default of payment of fine to undergo RI for 1 years.

2 Version of the prosecution is that on 11.8.2011 at about 10.45-

11.00 p.m. near shop of Mohind Presswala, Amarpuri, Nabi Karim

appellant Tinkoo inflicted injuries upon injured Babloo @ Dildar

(PW-9) with an "ustra". Version of the prosecution being that when the

injured was going to take cigarettes towards Mobin Presswala, he met

the appellant; the appellant took out the "ustra" from his pant and

attacked the victim. Zahid (PW-1) brother of the victim reached the

spot. Injured had been removed to the hospital by his friend Ravi (not

examined as a witness). The MLC of the victim had been proved

through Dr.Abhey Prakash Jha (PW-10) and Dr.Rajiv Dhawan (PW-11)

as Ex.PW-10/A and Ex.PW-11/A. Injuries noted on the person of the

victim were grievous; injuries were noted on his right cheek, right

shoulder, anterior to right tragus, neck and thyroid cartilage was

attacked and it was bulging out. Injuries were opined to be grievous and

blood sample of the victim was also taken so also his blood stained pant.

The statement of the injured Babloo was not recorded till 13.8.2001 as

he was unfit for statement till that time. The accused was arrested on

12.8.2001 vide memo Ex.PW-2/B. His grey pant and torn T-shirt which

were blood stained were also recovered, sealed and sent to the FSL.

Vide its report the FSL opined the blood group 'O-positive' on the

clothes of the accused as also on the pant of the victim. Statements of

PW-1 (Zahid) and PW-9 (injured Babloo) were recorded. Investigating

officer was examined as PW-12.

3 In the statement of the victim recorded under Section 313 Cr.P.C.

he pleaded innocence stating that he had been falsely implicated in this

case.

4       No evidence was led in defence.

5       In view of the aforenoted evidence collected by the prosecution,

the appellant was convicted and sentenced as aforenoted.

6 On behalf of the appellant arguments have been addressed by

Mr. K. Singhal, Advocate; written submissions have also been filed on

behalf of the appellant. It is pointed out that the judgment of the trial

court is illegal and arbitrary. The testimony of the so-called eye-witness

PW-1 is completely shaky and no credence can be placed upon his

version; he is the brother of the victim and should have removed the

victim to the hospital but the injured was removed to the hospital by one

Mr.Ravi who was not examined. PW-9 is the victim. PW-9 has also

given exaggerated version and his statement on oath in Court is

improved version over his version which had been given to the

investigating officer. This is a clear case where the provocation had

emanated from the victim himself as the MLC of the victim shows that

he was smelling of alcohol. Further submission of the learned counsel

for the appellant is that the doctor who had opined the injuries to be

grievous has not been examined. Moreover the definition of grievous

injury as has been given under Section 326 of the IPC does not fit the

injuries as have been depicted in the MLC. On the point of sentence, it

has been submitted that the punishment of 4 years RI has been

extremely harsh and in the alternative of this conviction a lenient view

should be taken and he should be granted sentence for a lesser period.

Submission being that the petitioner is young in years and he is in his

mid twenties. He is young; he has his wife, three minor children and

his grandmother; in case he is sent for re-incarceration his family would

be relegated to the street and would be on the verge of starvation.

7 Arguments have been refuted by learned public prosecutor. It is

pointed out that on no count does the impugned judgment call for any

interference. Testimony of PW-9 which is fully corroborative of the

version of the eye-witness PW-1 as also medical evidence which is

Ex.PW-10/A proved the version of the prosecution.

8 Arguments have been heard and record has been perused.

9 Star witness of the prosecution is PW-9. He was the victim.

Incident is dated 11.8.2001. His statement could not be recorded till

13.8.2001 as he was unfit for statement till that time. On oath PW-9 has

deposed that on the fateful day i.e. on 11.8.2001 at about 10.45 -11.00

p.m. after he had taken some liquor in his house went to Mobin

Presswala to take cigarette. He met the accused there. The accused was

known to him; the accused assaulted the victim "Sale tu bahut dadagiri

dikhata hai tujhe sabak sikhata hun" PW-1(Zahid) had reached the

spot; on seeing him, the accused fled. PW-9's friend Ravi also reached

the spot; he took him to the Lady Harding Hospital. Clothes of the

victim were seized. PW-9 was subject to a cross-examination. He

stated that he did not know as to whether the statement of Ravi was

recorded or not. He denied the suggestion that Ravi did not remove him

to the hospital. MLC of the victim Ex.PW-10/A shows that the victim

had received six injuries; it reads herein as under:

1. (R) Cheek CLW 7 x 2 cm. Deep MS exposed.

2. (R) Shoulder laceration

3. Laceration 2 cm ant. To ® tragus

4. Ant. Surface of neck, MS deep 5 x 1.5 cm

5. Middle 5x2 cm at level of thyroid cartilage. Cartilage exposed.

6. Multiple small superficial laceration over abdomen.

10 Victim was first examined by the medical officer Dr.Deepa. At

the time when he was admitted in the hospital i.e. on 11.8.2011 at about

11.30 p.m. the history given was that there was an assault by a known

individual upon the victim. The victim was on stable and he was not

vomiting; he was otherwise conscious and oriented. He was removed to

the hospital by his friend Ravi; this fact has been mentioned in the

MLC. On 22.01.2002 i.e. 5 months after the date of the incident opinion

on the nature of the weapon of offence was obtained from Dr.Indu Rana

which is evident from Ex.PW-11/A evidencing grievous injuries caused

by a sharp object. Ex.PW-11/A shows that the nature of the injuries was

first opined on 12.9.2001; there was a cutting and thereafter a word

"grievous" has been noted. On 22.01.2002 i.e. 5 months after this

opinion- the nature of the weapon was described 'to be a sharp object'.

Ex.PW-11/A was in the handwriting of Dr.Indu Rana. Dr.Indu Rana

could not be examined as a witness as she left the hospital at that point

of time. Dr.Abhey Prakash Jha (PW-10) and Dr.Rajiv Dhawan (PW-11)

appeared to prove this document.

11 Eye-witness to the incident was PW-1. He was living in the same

area where PW-9 was. He has on oath deposed that on the fateful day

when he came out of his house after having dinner and while he was

going back to his house from his factory and on reaching near the Mobin

Presswala, he saw appellant Tinkoo inflicting injuries upon Babloo with

a razor (ustra). PW-1 raised an alarm; appellant ran away from the spot.

The victim lost his consciousness. In his cross-examination he admitted

that his statement was recorded by the police and he informed the family

of the victim; he stayed at the spot of 2-3 minutes. He then went to the

hospital and he reached the hospital at about 10.00 p.m. This version of

PW-1 is corroborated by the version of the investigating officer SI Ajay

Kumar (PW-12). PW-12 had deposed that on 12.8.2001 at 2.25 a.m. he

was handed over DD No.6A (Ex.PW-12/A) and on receiving this DD he

reached the Lady Harding Hospital where he collected the MLC of the

victim Babloo. Babloo was unfit for statement. Rukka (Ex.PW12/B)

was prepared and was sent through Constable Salekh Chand (PW-2)

pursuant to which the present FIR was registered. The blood stained

pant of the victim had been seized vide memo Ex.PW-2/E. PW-12 has

further deposed that he met the PW-1 (eye-witness) in the hospital and

his statement was recorded. The investigating officer (PW-12) had also

arrested the accused vide memo Ex.PW-2/B. Disclosure statement

(Ex.PW-2/F) of the accused was recorded; his blood stained T-Shirt and

pant was seized vide memo Ex.PW-2/D and were sent to FSL for

scientific examination. FSL vide its report Ex.PW-13/B proved through

PW-13 (Dr.K.C.Varshney) had opined the blood of "O-positive" group

upon clothes of the accused and the injured. This piece of evidence is

clinching.

12 PW-9 has given the affirmed version and his version is

corroborated by the testimony of PW-1. There was also no reason for

PW-1 to have deposed in favour of the prosecution; he was admittedly

an eye-witness; he was living in the same vicinity i.e. Nabi Karim. At

the time when he was going back to his house from his factory he saw

the incident i.e. the appellant was attacking the victim. The MLC which

is a public document had noted that Ravi had brought the victim to the

hospital. So also is the version of PW-9. Non-examination of Ravi does

not in any manner dent the version of the prosecution as is the argument

of the learned counsel for the appellant as the MLC Ex.PW-10/A has

clearly spelt out the name of the person being Ravi who had brought the

victim to the hospital.

13 The MLC Ex.PW-10/A speaks of six injuries as noted supra.

Injury no.5 i.e. "at the level of thyroid cartilage being exposed" has been

pointed out to be most grievous of all the injuries. The doctor who had

opined this injury to be grievous was Dr.Indu Rana. This opinion was

given on 12.9.2001 i.e. after one month of the date of the incident. The

opinion on the weapon noted as sharp was given on 22.01.2002 i.e. five

months after the date of the incident. Admittedly, Dr. Indu Rana had not

been examined. Thus the doctor who had opined the injuries to be

grievous having been caused by a sharp object not having been

examined there was no occasion for the accused to have asked the

substitute doctor PW-11 as to on what basis the opinion had been given

by Dr. Indu Rana opining the injuries to be grievous and having caused

by a sharp object.

14 "Grievous hurt" has been defined in Section 320 of the IPC and

the facts of this case apparently falls within the eighth category

described in Section 320 of the IPC namely "any hurt which endangers

life.....". Injury no.5 is 5x2 cm injury at the thyroid level cartilage

leading to the exposure of the cartilage. Patient was otherwise

conscious and oriented but otherwise unfit to make statement. In this

background, it would be doubtful as to whether the hurt in question can

be said to be of that category which has the effect to endanger life. The

'ustra' was admittedly not recovered. The proper section which would

be applicable would be Section 324 of the IPC i.e. voluntarily causing

hurt with a dangerous weapon and not Section 326 of the IPC.

15 The accused is accordingly convicted for the offence punishable

under Section 324 of the IPC. The sentence of 4 years RI imposed upon

the victim is altered to sentence of RI 1 year. The sentence of fine

remains unaltered.

16 The nominal roll of the appellant reflects that as on the date when

his sentence has been suspended he had undergone incarceration of

about 4 months. The appellant be taken into custody to serve remaining

sentence. Bail bond cancelled. Surety discharged.

17     Appeal disposed of in the above terms.



                                                INDERMEET KAUR, J

MAY 28, 2014
ndn