Devender @ Ramu vs State
2014 Latest Caselaw 6070 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 CRL.A. 851 of 2010
        LAXMI NARAYAN @ LAMBU                      ..... Appellant
                         Through: Mr. D.K. Pandey, Advocate
                         along with Appellant in person.
                        versus


        STATE OF NCT OF DELHI                       ..... Respondent
                      Through: Mr. Rajat Katyal, APP.
                                 And


                                 CRL.A. 853 of 2010
        DEVENDER @ RAMU                                            ..... Appellant
                                         Through: Mr. D.K. Pandey, Advocate
                                         along with Appellant in person.
                        versus


        STATE                                                  ..... Respondent
                                 Through: Mr. Rajat Katyal, APP.


        CORAM: JUSTICE S. MURALIDHAR

                                 ORDER

24.11.2014

1. These two appeals are directed against the impugned judgment dated

19th May 2010 passed by the learned Additional Sessions Judge-1 („ASJ‟)

(North East), Karkardooma Courts, Delhi in Session Case No. 38/09

convicting the Appellants, Laxmi Narain @ Lambu and Devender @

Ramu, for the offences under Sections 452 read with 34 IPC and Sections

308/34 IPC and the order on sentence dated 21 st May 2010 whereby each

of them was sentenced to undergo two years rigorous imprisonment („RI‟)

for the offence under Section 452/34 IPC and three years RI for the

offence under Section 308/34 IPC and to pay a fine of Rs. 10,000 each

and default, to undergo further RI for six months.

2. It must be mentioned here that the fine deposited by the Appellants, as

directed by the trial Court, is stated to have been paid to the victim,

Parveen, as compensation.

3. The case of the prosecution is that Parveen (PW-1), who is a tailor, was

present in the shop at No. F-39, Gali No. 4, Khajuri Khas, Delhi at 8.30

pm on 15th May 2005 along with his wife, Lalita (PW-2) and one worker

Abdul Rashid and at that time three accused, i.e.,Laxmi Narayan @

Lambu, Accused No. 1 (A-1) [Appellant in Criminal Appeal No. 851 of

2010], Devender Singh @ Ramu, Accused No. 2 (A-2) [Appellant in

Criminal Appeal No. 853 of 2010] and Sandeep @ Monu, Accused No. 3

(A-3) entered his shop. While entering the shop, A-3 who was having a

beer bottle in his hand, asked A-1 and A-2 to catch hold of PW-1

exhorting to kill him. A-1and A-2 caught hold PW-1 and A-3 attacked on

his head with beer bottle as a result of which the beer bottle got broken

and PW-1 received injuries on his head. In the meanwhile, when Lalita

wife of PW-1 (PW-2) and the worker, Abdul Rashid, tried to rescue PW-

1, the accused threatened the worker to remain at his place failing which

he would be killed by them. PW-2 is also stated to have been given kicks

by the accused as a result of which she fell down. The accused again

attacked PW-1 with said broken bottle and caused injuries on the left side

of his abdomen. PW-1 became unconscious due to the injuries. He was

taken to the GTB Hospital where he was medically examined. The MLC

(Ex.PW-5/A) showed that he had two stab wounds on left side of the chest

wall and there was 1 cm long muscle deep wound and 0.5 cm long muscle

deep wound. There was also an abrasion 1 cm long superficial in left front

parietal area of skull. As per the surgical report the injuries were stated to

be simple. Dr. Anshuman Shukla (PW-5) also confirmed the above

injuries.

4. The trial Court proceeded to frame the charge against the accused for

the offences under Section 452, 307 and 34 IPC.

5. The prosecution examined nine witnesses. The accused examined

Kalpana (DW-1) sister of A-3. DW-1 alleged that PW-1 had misbehaved

with her some time before her marriage. In her cross-examination, DW-1

admitted that the incident spoken about occurred two years earlier to her

marriage but no report was filed before the police.

6. The trial Court held that the evidence was sufficient to hold the

Appellants guilty for the aforementioned offences. It proceeded to

sentence them in the manner indicated above.

7. In terms of the nominal roll of the Appellant No. 1, Laxmi Narayan @

Lambu, he has undergone imprisonment of about nine months. As far as

Appellant No. 2 is concerned, he appears to have undergone

imprisonment for less than a month so far. However, neither of them have

been shown to be involved in any other offence.

8. The two star witnesses of the prosecution were PW-1 and PW-2. Both

of them, in their examination-in-chief, were consistent about the material

particulars of what transpired. They were consistent that A-1 and A-2

caught hold of PW-1 and A-3 attacked on his head with a beer bottle as a

result of which the beer bottle broke and PW-1 received injuries on his

head. They were also consistent in their description of the manner in

which further injuries were caused to PW-1 on his abdomen by A-3 with

the broken beer bottle. Neither PW-1 nor PW-2 was cross-examined

despite several opportunities given to learned counsel for the accused for

that purpose.

9. As pointed out by learned APP for the State, it appears that the attack

by A-3 did not stop with his hitting PW-1 with the beer bottle on his head.

After the bottle broke, and despite PW-1 trying to escape from their

clutches, A-3 continued to inflict injuries on his abdomen and these have

been corroborated by the MLC (Ex.PW-5/A).

10. Although learned counsel for the Appellants, i.e., A-1 and A-2 tried to

point out that the injuries were not grievous, and were only muscles deep,

as explained by the Supreme Court in Sunil Kumar v. N.C.T. of Delhi

(1998) 8 SCC 55, the nature of offence under Section 308 IPC for which

the Appellant has been convicted is of a different nature, distinct from the

offence of causing hurt and grievous hurt which are covered under

Sections 323 to 326 IPC. It was observed that for the offence under

Section 308 IPC, what was important was the intention or knowledge

"that if one by that act caused death, he (the assailant) would be guilty of

culpable homicide not amounting to murder". The fact that the three

accused were persistent in attacking PW-1 even as he was trying to escape

from their clutches, is sufficient to attract the offence under Section 308/

34 IPC. The motive of the crime was explained by PW-1 who stated that

A-3 used to consume liquor and ganja, enter his shop and demand money.

The PW-1 after meeting such demands on a couple of occasions declined

thereafter. This also led to PW-1 complaining to the sister of A-3, as a

result of which A-3 was upset.

11. It was submitted that the police failed to send the beer bottle with the

blood stains, and the blood-stained clothes of PW-1 to the FSL for

examination. It has been pointed out by learned APP that they were

indeed sent to the FSL for examination. However, the results were

inconclusive. The fact was that the beer bottle did have blood stains, but

there was no reaction to the test for determining the blood group.

12. The Court is satisfied that the prosecution has been able to prove the

offence under Section 452 and 34 IPC and 308/34 IPC against A-1 and A-

2 beyond reasonable doubt. It, therefore, confirms their conviction for the

said offences.

13. On the question of sentence, as already noticed A-1 has undergone

imprisonment for about nine months and A-2 for about 27 days. Neither

of them has any previous criminal record. In the circumstances, the Court

considers it appropriate to modify the substantive sentence awarded to

each of them by the trial court for the offences under Section 308/34 IPC

and Section 452/34 IPC to imprisonment of one year‟s RI and increase the

fine amount by Rs. 10,000 on each of them, which fine amount should be

paid within four weeks from today. In default, each Appellant shall

undergo simple imprisonment for one month each. As and when the

enhanced fine amount is deposited by A-1 and A-2 in the trial Court, it

shall be made over to PW-1 as compensation, by the trial Court forthwith.

14. Appellant in Crl. A. No. 851 of 2010, who is produced in custody,

shall be taken back in custody to serve out the remainder sentence.

Appellant in Crl. A. No. 853 of 2010, who is present in Court, shall be

taken into custody forthwith to serve out the reminder sentence.

15. The appeals are disposed of in the above terms. The trial Court record

along with a certified copy of this order be sent back to the trial Court

forthwith.

16. A copy of this order be given dasti to learned counsel for the parties

under the signature of the Court Master.

S. MURALIDHAR, J.

NOVEMBER 24, 2014 Rk