Delhi High Court
Prabhu Dayal Sharma vs The State Of Nct Of Delhi on 30 May, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 24th APRIL, 2014
DECIDED ON : 30th MAY, 2014
+ CRL.A.680/2012
PRABHU DAYAL SHARMA ..... Appellant
Through : Mr.Dayan Krishnan, Sr. Advocate
with Mr.Sudarshan Rajan,
Advocate.
VERSUS
THE STATE OF NCT OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
+ CRL.A.689/2012
JASVEER ..... Appellant
Through : Mr.Dayan Krishnan, Sr. Advocate
with Mr.Sudarshan Rajan,
Advocate.
VERSUS
THE STATE OF NCT OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
Crl.A.No.680/2012 & connected appeals. Page 1 of 20
RESERVED ON : 26th MARCH, 2014
DECIDED ON : 30th MAY, 2014
+ CRL.A.857/2012
JASBIR SINGH ..... Appellant
Through : Mohd.Saleem, Advocate with
Mohd.Tabrej, Advocate.
VERSUS
THE STATE (DELHI ADMN.) DELHI & ANR. ..... Respondents
Through : Mr.M.N.Dudeja, APP.
+ CRL.A.676/2012
MAHABIR ..... Appellant
Through : Mr.Sudarshan Rajan, Advocate
with Md.Qamar Ali, Advocate.
VERSUS
THE STATE OF NCT OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
+ CRL.A.675/2012
RAJESH KUMAR @ RAJU ..... Appellant
Through : Mr.Sudarshan Rajan, Advocate
with Md.Qamar Ali, Advocate.
VERSUS
Crl.A.No.680/2012 & connected appeals. Page 2 of 20
THE STATE OF NCT OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
AND
+ CRL.A.1036/2012
RAMESH KIRAR ..... Appellant
Through : Mr.Ashok Kr.Arya, Advocate.
VERSUS
THE STATE (GNCT OF DELHI) & ORS. ..... Respondents
Through : Mr.M.N.Dudeja, APP.
3
+6
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. In Criminal Appeals No. 680/2012, 689/2012, 676/2012 and
675/2012, Prabhu Dayal Sharma (A-1), Jasveer (A-2), Mahabir (A-3) and
Rajesh Kumar @ Raju (A-4) challenge the legality and correctness of a
judgment dated 23.05.2012 of learned Addl. Sessions Judge in Sessions
Case No. 8/11 arising out of FIR No. 70/06 PS Paharganj, by which they
were convicted under Sections 325/34 IPC. By an order dated 24.05.2012,
they were sentenced to undergo RI for one and half year with fine `
15,000/-, each.
2. Jasbir Singh (A-2) has filed Crl.A.No.857/2012 under
Section 372 Cr.P.C. to impugn a judgment dated 23.05.2012 in Sessions
Case No. 9/11 arising out of FIR No. 69/06 PS Paharganj, by which
Ramesh Kirar (respondent No.2) was acquitted of the charge.
Complainant - Ramesh Kirar has preferred Crl.A.No.1036/2012 under
Section 372 Cr.P.C. to challenge A-1 to A-4‟s acquittal under Sections
308/34 IPC and for enhancement of sentence awarded to them in FIR
No.70/06 PS Paharganj.
Since all these appeals were intrinsically connected, with the
consent of the parties, these were heard together to be disposed of by a
common judgment.
3. Shorn of details, the prosecution case as reflected in the
charge-sheet in FIR No. 70/06 PS Paharganj was that on 17.02.2006 at
about 08.00 a.m. at shop No.5, near Uday Singh Ashram Chowk, Aram
Bagh, Paharganj, A-1 to A-4 sharing common intention caused injures to
Ramesh Kirar with iron rods and dandas in an attempt to commit culpable
homicide. The police machinery swung into action after receiving
information about the incident and Daily Diary (DD) No.8A (Ex.PW-8/A)
came to be recorded at 08.32 a.m. at PS Paharganj to the effect that an
individual had sustained injuries on head in a quarrel at Uday Singh
Ashram, Aram Bagh. The investigation was entrusted to ASI Dharambir
Singh who with Const.Manoj Kumar went to the spot. They came to know
that the victim had already been shifted to Dr.Ram Manohar Lohia
Hospital. ASI Dharambir Singh collected MLC of Ramesh Kirar. Since he
was unfit to make statement, the Investigating Officer lodged First
Information Report, after making endorsement (Ex.PW-8/B) on DD
No.8A (Ex.PW-8/A). During investigation, statements of the witnesses
conversant with the facts were recorded. The investigation was taken over
by SI S.P.Singh. On 22.02.2006, statement of the victim Ramesh Kirar
was recorded. A-1 to A-4 were arrested. After completion of the
investigation, a charge-sheet was submitted against them for committing
offence under Sections 308/34 IPC; they were duly charged and brought
to trial. The prosecution examined fourteen witnesses to establish their
guilt. In 313 statements, the accused persons pleaded false implication and
denied their involvement in the crime; A-3 and A-4 raised plea of „alibi‟.
DW-1 to DW-6 were examined in defence. The trial resulted in conviction
of A-1 to A-4 under Sections 325/34 IPC as aforesaid. Being aggrieved
and dissatisfied, they have preferred the appeals.
4. In case FIR No.69/06 PS Paharganj, the prosecution case as
disclosed in the charge-sheet was that on 17.02.2006 at about 08.00 A.M.
at shop No.5, near Uday Singh Ashram Chowk, Aram Bagh, Paharganj,
Ramesh Kirar voluntarily caused simple hurt with sharp object to Jasveer
(A-2). When PW-8 (ASI Dharambir Singh) went to Dr.Ram Manohar
Lohia Hospital, after assignment of investigation pursuant to DD No.8A
(Ex.PW-8/A), he found Jasveer (A-2) admitted there for treatment. He
collected his MLC and lodged First Information Report after recording his
statement (Ex.PW-2/A) by sending rukka (Ex.PW-6/A). After the
investigation was over, a charge-sheet against Ramesh Kirar was
furnished; he was duly charged and brought to trial. The prosecution
examined six witnesses. In 313 statement, Ramesh Kirar claimed himself
to be innocent and examined DW-1 (HC Arvind) and DW-2 (Dr.Ajay
Gandotra) in defence. The trial resulted in his acquittal. Being aggrieved
and dissatisfied, the victim has challenged the acquittal. It is relevant to
note that State did not prefer to file any appeal against the impugned
judgment dated 23.05.2012.
5. In Crl.A.No.1036/2012, challenging A-1 to A-4‟s acquittal
under Sections 308/34 IPC, the victim - Ramesh Kirar claimed enhanced
sentence.
6. I have heard the learned counsel for the parties and have
examined the Trial Court records. The occurrence took place on
17.02.2006 at around 08.00 a.m., near Uday Singh Ashram Chowk, Aram
Bagh, Paharganj. DD No.8A (Ex.PW-8/A) was recorded in promptitude
about the incident at 08.32 a.m. at PS Paharganj. PCR form (Ex.PW-11/A)
was filled up at 08.28 a.m. on getting information about a quarrel in which
an individual had sustained injuries on his head. It further records that the
assailants had fled the spot after giving beatings to Ramesh Kirar and he
had been taken to hospital. PW-1 (Om Parkash), after getting information
from his cousin about the occurrence went to the spot and found Ramesh
Kirar lying injured opposite shop No.5, Aram Bagh. He shifted Ramesh
Kirar to Dr.Ram Manohar Lohia Hospital. MLC (Ex.PW-13/A) records
the arrival time of the patient (Ramesh Kirar) at 08.40 a.m. in the hospital.
Om Parkash‟s name finds in the MLC in the column „brought by‟. As per
endorsement on the MLC, Ramesh Kirar was „unfit‟ to make statement on
17.02.2006. PW-6 (Dr.Kalyani) medically examined the victim who was
brought in the hospital with the alleged history of „assault‟ by MLC
(Ex.PW-6/A). On local examination, he was found having abrasion on left
leg, right ankle joint, right knee joint, right leg with profuse bleed side;
right knee joint, ankle joint, left radius ulna with restrictions and right
dorsum of hands with swelling. PW-7 (Dr.Anil Taneja) after examining
seven x-ray plates (Ex.PX1 to Ex.PX7) found three fractures of right
femur, right Tibia and metacarpal bones. The report submitted by him is
Ex.PW-7/A. In the opinion of PW-13 (Dr.Pankaj Bansal) the injuries were
„grievous‟ in nature. Apparently, Ramesh Kirar sustained three fractures
on various parts of the body in the occurrence which were „grievous‟ in
nature. Nothing has come on record to show that these injuries were self
inflicted or accidental. A-2, who lodged cross-case vide FIR No.69/06, in
313 statement, did not deny the injuries sustained by Ramesh Kirar. He,
however, pleaded that Ramesh Kirar was assaulted by his associates to
whom he had sold the property in question and had taken advance
payment but not in a position to hand over its possession. In the complaint
(Ex.PW-2/A) lodged in case FIR No.69/06, A-2 took up the plea that
injuries to Ramesh Kirar were inflicted by him by a lathi in the exercise of
his right of private defence when he was stabbed by a knife by him.
7. The crucial aspect to be determined is as to who was the
perpetrator of crime to cause injuries to Ramesh Kirar. Star witness is
Ramesh Kirar who on oath deposed that when on 17.02.2006, he had gone
to a barber (PW-2 Yamin) for shave and also to collect monthly rent, A-2
called him out on the pretext to meet A-1 standing outside the shop. He
recalled that after coming out, he saw A-1 standing in the company of A-3
and A-4. On the exhortation of A-1 "maro sale ko aaj bachke na jane
paye", A-2 caught hold of him by shoulders, and A-2 and A-3 started
beating him with rod and dandas, causing injuries on his head, hands, legs
and other parts of the body. He was taken to the hospital by someone
where his statement was taken on 22.02.2007. Ramesh Kirar was cross-
examined indepth on various dates on facts not relevant to the fact-in-
issue. He was mainly questioned regarding dispute over ownership /
possession of the property in question which belonged to the Akhara.
Since the matter was subjudice and civil proceedings were already
pending regarding the property in question, these questions were not very
material and relevant to the incident in question. The complainant
disclosed that he remained unconscious from 17.02.2006 to 22.02.2006.
After discharge from Dr.Ram Manohar Lohia Hospital on 02.03.2006, he
got regular treatment from Khetarpal Hospital. He denied the suggestion
that he was beaten by the „party‟ from whom he had received earnest
money and was unable to deliver the possession of Akhara to them. He
also denied that A-3 and A-4 had gone to Jaipur on the date of incident for
purchase of the clothes for the statue of „Gurumuni‟. Apparently, no
material contradictions or discrepancies could be brought out in the cross-
examination to discredit the version narrated by the injured witness.
Names of the alleged assailants from whom the complainant had obtained
any advance to hand over the possession of Akhara were not suggested.
The victim who sustained multiple fractures on the body was not expected
to let the real offenders go scot free and to falsely implicate innocent ones.
Explaining the delay in recording statement on 22.02.2006, PW-14 (SI
S.P.Singh, Investigating Officer) disclosed that from 17.02.2006 to
20.02.2006, he remained unconscious to make any statement. On
21.02.2006, though he was physically fit to make statement, being
„unwell‟, he recorded it on 22.02.2006. On 22.02.2006, the complainant
was specific and certain as to who were the assailants and what role was
played by each of them. The delay in recording the statement has been
explained and can be accepted. The testimony of a stamped witness has its
own relevance and efficacy. The testimony of the injured witness is
accorded a special status in law. This is a consequence of the fact that the
injury to the witness is an in-built guarantee of his presence at the scene of
crime and because the witness will not want to let the actual assailant to
go unpunished merely to falsely involve a third party for the commission
of the offence. In the case of „State of Uttar Pradesh vs.Naresh and Ors.',
(2011) 4 SCC 324, the Supreme Court held:
"The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence
cannot be doubted. His statement is generally considered to
be very reliable and it is unlikely that he has spared the
actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy
and efficacy as he has sustained injuries at the time and
place of occurrence and this lends support to his testimony
that he was present during the occurrence. Thus, the
testimony of an injured witness is accorded a special status
in law. The witness would not like or want to let his actual
assailant go unpunished merely to implicate a third person
falsely for the commission of the offence. Thus, the evidence
of the injured witness should be relied upon unless there are
grounds for the rejection of his evidence on the basis of
major contradictions and discrepancies therein."
8. In the case of „Abdul Sayed Vs.State of Madhya Pradesh',
(2010) 10 SCC 259, the Supreme Court held :
"The question of the weight to be attached to the evidence
of a witness that was himself injured in the course of the
occurrence has been extensively discussed by this Court.
Where a witness to the occurrence has himself been injured
in the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes
with a built-in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s) in
order to falsely implicate someone. "Convincing evidence is
required to discredit an injured witness".
As discussed above, A-2 in complaint (Ex.PW-2/A) (FIR No.
69/06) admitted his presence at shop No.5 where Ramesh Kirar, the
victim had met him. He further admitted that on his asking, Ramesh Kirar
declined to settle the accounts and started abusing him. On that, an
altercation took place. Ramesh Kirar took out a knife from the back
pocket and stabbed him on his back. He claimed that in private defence,
he picked up a „lathi‟ lying at the spot and dealt a blow on his leg.
Apparently, the theory propounded by A-2 that Ramesh Kirar‟s associates
caused beating to him on his inability to hand over the possession despite
receiving advance payment fell flat. PW-2 (Yamin) also spoke of a quarrel
between Ramesh Kirar and Jasveer (A-2). He supported both of them and
disclosed that Ramesh Kirar and Jasveer sustained injuries in the said
scuffle. He was, however, conspicuously silent as to who gave injuries to
whom. It appears that Yamin did not present true facts to avoid annoyance
to any party, being a tenant in the shop as, ownership / possession of it
was being claimed by both of them. As per his statement, he was paying
rent to Akhara authorities through Ramesh Kirar and Jasveer (A-2).
9. Complainant - Ramesh Kirar assigned a specific and positive
role to each of the assailants in the crime. He was fair enough to disclose
that only A-3 and A-4 were armed with iron rod and dandas. A-1 had
exhorted to them "maro sale ko aaj bachke na jane paye". The role
assigned to A-2 was that he caught hold of him at that time. The victim
had no extraneous consideration to falsely rope in A-3 and A-4 with
whom he had no prior animosity. In fact, it were A-3 and A-4 who played
active role in causing multiple fractures to the victim. The findings of the
Trial Court that A-1 to A-4 sharing common intention voluntarily caused
injuries to the victim cannot be faulted.
10. A-3 and A-4 took the plea of „alibi‟ and claimed that on the
day of incident they had gone to Jaipur for purchase of clothes for the
statue. They examined DW-5 (Rajeev Sabikhi) to prove that on
16.02.2006, they had stayed in his Hotel Residency Inn in room No.109 as
reflected in Ex.DW-5/A. They further examined DW-2 (Ghanshyam
Sharma) from Jaipur to prove purchase of certain articles from his shop
vide documents (Mark-A and Mark-B) on 16.02.2006. DW-6 (Mr.Vivek
Gupta) proved the photocopy of the bill No.53 dated 16.02.2006 (Mark
DW-6/A) to prove purchase of certain articles. The Trial Court elaborately
dealt with the defence evidence and for valid reasons rejected the plea out-
rightly. A-3 and A-4 did not examine any witness from Akhara in
question to prove if they were deputed to go to Jaipur to purchase
jewellery / clothes for the statue or were entrusted with any specific
amount for that purpose. They also did not examine relevant witness to
show if any such articles were purchased and brought back by them. No
documentary evidence from the Akhara showing the purchase of any such
article and its payment to A-3 and A-4 was brought on record. Nothing
was revealed as to by which mode of transport, A-3 and A-4 had
performed their to and fro journey to Jaipur. It was also not disclosed as to
on which date and at what time, they had departed for Jaipur and reached
Delhi after performing their journey. No tickets / reservation tickets for
the journey undertaken have been placed on record. The testimonies of
DWs-2, 5 and 6 are not cogent and reliable. A-3 and A-4 had no sound
reasons to get two different bills in two different names from DW-3 for
purchase of articles when these were meant for the statue and not for
individual requirement. It is unbelievable that DW-2 (Ghanshyam
Sharma) would be able to identify the routine / casual customers visiting
his shop for the purchase of routine articles only on one occasion during
his examination after about five years of the incident in the Court.
Document (Mark DW-5/A) is a loose sheet and does not contain the
parentage or the address of the visitors to the hotel. It does not bear the
signatures of A-3 or A-4. Admittedly, DW-5 (Rajeev Sabikhi) was known
to A-3 and A-4 since long. The possibility of manipulated / fabricated
document to create the plea of alibi cannot be ruled out. The authenticity
of the document is highly suspect and cannot be believed. Once the
presence of the accused at the scene of occurrence has been established
satisfactorily by the prosecution through the reliable evidence of the
complainant, it was incumbent upon them to prove the plea of „alibi‟ with
absolute certainty. Plea of alibi must be proved by cogent and satisfactory
evidence completely excluding the possibility of accused persons at the
scene of occurrence at the relevant time. The plea of „alibi‟ set up by A-3
and A-4 seems to be an afterthought and un-believable.
11. A-2 lodged complaint (Ex.PW-2/A) which formed the basis
of registration of FIR No.69/06. In the complaint, A-2 disclosed that when
he visited PW-2 (Yamin)‟s shop, A-2 stabbed him by a knife on his asking
to settle the account. The Trial Court for sound reasons did not believe the
theory propounded by the complainant and exonerated Ramesh Kirar of
the charge. A-2 admitted that in private defence, he inflicted lathi blow on
Ramesh Kirar‟s leg but he did not explain as to how and under what
circumstances, he got multiple fractures on his various body parts. He did
not report the incident to the police soon from the spot. Daily Diary (DD)
No.8A (Ex.PW-8/A) was recorded at 08.32 a.m. at PS Paharganj which
pertained to the injuries sustained by an individual lying at the spot. In
PCR form (Ex.PW-11/A), the name of the injured was ascertained as
Ramesh Kirar. Neither PCR form (Ex.PW-11/A) nor Daily Diary (DD)
No.8A (Ex.PW-8/A) records if anyone else suffered injuries in the
occurrence. A-2 did not inform any of his relative about the occurrence
and conveniently went alone to Dr.Ram Manohar Lohia Hospital in a TSR
and admitted himself there. MLC (Ex.PW-5/A) records the arrival time of
the patient A-2 (Jasveer) at 09.05 a.m.; he was declared fit for statement at
10.15 a.m. Contrary to that, MLC of Ramesh Kirar, who was taken by Om
Parkash (PW-1), records the arrival time of the patient at 08.40 a.m. A-2
did not explain the delay in reaching Dr.Ram Manohar Lohia Hospital.
PW-8 (ASI Dharambir Singh) to whom the investigation was assigned
after recording A-2‟s statement, lodged the First Information Report. In
the cross-examination, he admitted that he reached shop No.5, near Uday
Singh Ashram Chowk, Aram Bagh, Paharganj, at about 08.30 a.m.
Dr.Ram Manohar Lohia Hospital was at a distance of two or three
kilometres from the spot. No eye witness came forward to disclose that
injuries were caused to A-2 by Ramesh Kirar. In his Court statement (in
case FIR No. 69/06 PS Paharganj), A-2 gave inconsistent version that
after sustaining stab blow on back and neck, he fell down and was taken
to the hospital by „someone‟. This assertion is in contradiction to the
statement (Ex.PW-2/A) in which he claimed that he went to the hospital
on his own in a TSR. No knife was recovered at the spot. Victim -
Ramesh Kirar lying in injured condition at the spot was not found in
possession of any such knife. It belies A-2‟s statement that he was caused
injuries by a knife by the victim Ramesh Kirar. The prosecution failed to
establish beyond reasonable doubt that the victim Ramesh Kirar was the
author of the injuries to A-2. Acquittal of Ramesh Kirar for sound reasons
in the impugned judgment dated 23.05.2012 in Sessions Case No. 9/11
arising out of FIR No. 69/06 PS Paharganj is based upon fair appraisal of
the evidence and needs no intervention.
12. Appellant‟s counsel in Crl.A.No.1036/2012 emphasized that
on A-1‟s exhortation "maro sale ko aaj bachke na jane paye", multiple
injuries were inflicted to the victim and it attracted ingredients of Section
308 IPC. The submissions are devoid of merits. No injuries were inflicted
on the vital organs of the victim. As per medical evidence, the victim
sustained three fractures on right femur, right Tibia and metacarpal bones.
The injuries were „grievous‟ in nature and were not sufficient in the
ordinary course of nature to cause death. The prosecution could not
established / produced any evidence on record to infer that the injuries
were caused with the avowed object and knowledge to cause victim‟s
death. The incident of altercation had taken place at the shop being run by
PW-2 (Yamin) where the victim had gone for shave in routine without any
inkling of his arrival to the assailants to pre-plan the attack. A-1 and A-2
were not armed with any weapon. Dispute arose when A-1 asked Ramesh
Kirar to settle the accounts for the rent received by him. In the said
scuffle, injuries were voluntarily caused to the victim. Both the parties
were acquainted with each other and had visiting terms before the
incident. There was no past history of animosity or long standing enmity.
The relations became strained when both of them claimed ownership over
the Akhara property and instituted civil proceedings. From these
circumstances, it cannot be inferred that the convicts had requisite
intention or knowledge to attract Section 308 IPC.
13. The convicts were awarded RI for one and half year with fine
` 15,000/-, each under Sections 325/34 IPC which cannot be termed
inadequate. A-1 was aged around 72 years. None of them was a habitual
offender or involved in any criminal activities. The occurrence had taken
place at the spur of the moment over settlement of accounts pertaining to
the property of the Akhara. Considering the facts and circumstances in
which the altercation arose, I find no merit in the appeal for enhancement
of the sentence awarded by the Trial Court.
14. In the light of above discussion, the findings of the Trial
Court convicting A-1 to A-4 under Sections 325/34 IPC are affirmed.
Turning to the plea to modify the sentence order, A-2 to A-4 deserve no
leniency as the unarmed complainant suffered three fractures on various
body parts and remained admitted for number of days in the hospital. So
far as A-1 is concerned, he is aged about 75 years; is not a previous
convict; has clean antecedents; and has suffered agony of trial / appeal for
eight years. The only role attributed to him that of exhortation; he was not
armed with any weapon and did not facilitate co-convicts in causing
injuries to the victim. The initial confrontation had taken place with A-2.
Keeping in view the genesis and origin of the incident and looking to his
age, conduct, antecedents, and attendant circumstances, interest of justice
would be met if instead of sentencing him at once to any punishment, he
is directed to be released on probation of good conduct. Accordingly, A-1
shall be released on his entering into a bond in the sum of ` 30,000/- with
one surety 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 seven days. A-1 shall
deposit ` 1 lac to be paid as compensation to the victim in the Trial Court
within fifteen days. The compensation will be released to the victim -
Ramesh Kirar after due notice.
15. While maintaining conviction qua A-1 to A-4 under Sections
325/34 IPC, sentence order is modified to the extent that A-1 would be
released on probation and shall pay a sum of ` 1 lac as compensation to
the victim. Crl.A.No.680/2012 stands disposed of in the said terms.
Crl.A.No.689/2012, Crl.A.No.676/2012 and Crl.A.No.675/2012 stand
dismissed.
16. Crl.A.No.857/2012 filed by A-2 against acquittal is
dismissed.
17. Crl.A.No. 1036/2012 filed by the complainant for
enhancement of sentence stands dismissed.
18. Trial Court records be sent back forthwith with the copy of
the order. A-2, A-3 and A-4 shall surrender before the Trial Court on 6th
June, 2014 to serve the remaining period of their sentence.
(S.P.GARG)
JUDGE
MAY 30, 2014 / tr
