Safiq And Ors vs State
2014 Latest Caselaw 4825 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on :10.09.2014
                                    Judgment delivered on : 25.09.2014

+      CRL.A. 385/2006
       SAFIQ AND ORS.                                      ..... Appellants
                       Through            Mr.Dinesh     Kumar        Garg,
                                          MrAbhishek Garg, Mr.Dhananjay
                                          Garg, Advocates.
                           versus
       STATE                                        ..... Respondent
                           Through        Ms.Kusum Dhalla, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 15.02.2006 and 13.03.2006 respectively wherein the

appellants namely Safiq, Fahim and Lahiq had been convicted under

Sections 307/506 of the IPC. They were acquitted of the charge under

Sections 147/148/149 of the Indian Penal Code, 1860 (IPC). Relevant

would it be to note that along with the three appellants, there were three

other persons, all of whom were acquitted. The appellants were

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

Rs.5,000/- and in default of payment of fine to undergo SI for six

months for the offence under Section 307 of the IPC; for the offence

under Section 506 of the IPC, each of the convicts were sentenced to

undergo RI for a period of six months and to pay a fine of Rs.1,000/-

and in default of payment of fine to undergo SI for one month.

2 Nominal rolls of the appellants reflect that appellant Fahim, at the

time of grant of bail had undergone incarceration of almost about 11

months which included his remission. Appellant Safiq had undergone

incarceration of about 10- ½ months and appellant Lahiq had undergone

incarceration of about 9 months.

3 The version of the prosecution was that on 10.04.2001 at about

10:30 PM at Jhuggi No.166, LNJP Colony (near Turkman Gate, Delhi),

six persons being members of an unlawful assembly and in furtherance

of their common object had assaulted Mohd. Irfan (PW-2) and his

family with criminal force wielding deadly weapons. They were also

criminally intimidated. PW-2 was the complainant and it was on his

statement (Ex.PW-2/A) that the present FIR had been registered. He had

disclosed that Mehtab, Lahiq and Fahim lived in LNJP Colony i.e. the

place where the victim and his family were living. On the previous

night, i.e. on 09.04.2001, a quarrel had taken place between Rizwan and

and Zakir (PW-2's brothers) on one side, and Mehtab, and appellants

Lahiq and Fahim on the other. On that date, Rizwan and Mehtab were

arrested. On the following day i.e. 10.04.2001 in the afternoon at 02:30

pm when PW-2 along with his brother Irshad (PW-4) and his sister-in-

law (PW-3) were eating lunch, the appellants had entered their house.

Lahiq was holding a soda bottle and Fahim and Safiq were holding meat

cutting 'chura' (knife). Fahim attacked PW-2 with the 'chura' pursuant

to which PW-2 received injuries on his left arm. Safiq also hit the

'chura' on the head of PW-2. Lahiq gave injuries to PW-4. Appellant

Lahiq beat up PW-3 and gave her leg blows on her stomach. Meanwhile,

Noor Mohd, Wasim and his father Shamim (since acquitted) along with

some other persons also entered his house. They were all carrying

dandas and lathis. They hit the victim and his family. The version of

PW-2 was corroborated by the testimony of PW-3 and PW-4. PW-4 was

medically examined by Dr.Ramesh Yadav (PW-1). PW-4 had to

undergo emergency surgery; the injuries recorded on his persons were

dangerous to life. His MLC was proved as Ex.PW-1/A. The subsequent

medical record of PW-4 was proved through Dr. Shikha Sharma (PW-

16) as Ex.PW-16/A. Dr. Veenita Jaiswal (PW-15) had identified the

signatures of Dr. Udit Verma who had medically examined PW-3 and

proved her MLC as Ex.PW-15/A; the MLC of PW-2 was proved as

Ex.PW-15/B. Investigation was marked to SI S.R. Meena (PW-5) who

was assisted by Constable Devender Singh examined as PW-8 and ASI

Jaipal Singh examined as PW-9. Subsequently investigation was marked

to SI Atma Singh (PW-17).

4 The statements of the accused were recorded under Section 313 of

the Cr.PC; they all pleaded innocence stating that they had been falsely

implicated because of the enmity with the complainant family.

5 In defence one witness Mohd. Yasim (DW-1) was produced; he

had set up a plea of alibi; submission being that the accused persons had

been falsely implicated.

6 On behalf of the appellants, arguments have been addressed in

detail. It is pointed out that on all counts, the judgment of the trial Court

suffers from infirmities. It is firstly pointed out that there are three

accused persons who have been convicted under Sections 307/506 of the

IPC; they have been acquitted of the charge under Sections 147/148/149

of the IPC; the aid of Section 34 has not been invoked. Conviction of the

appellants on this score alone is bad and is liable to be set aside. Further

submission being that no specific role has been attributed to any of the

aforenoted appellants and even presuming that the version of PW-2 is

correct, it is not in conformity with the version set up by PW-3 and PW-

4. Even as per the version of PW-2, Lahiq had only given a leg blow on

the stomach of PW-3 which does not qualify for a conviction under

Section 307 of the IPC. The injuries suffered by the victims were

simple. Reliance has been placed upon (2011) 12 SCC 514 Fulchand

Gope and Another Vs. State of Jharkhand. His submission is that in such

an eventuality, at best the offence under Section 326 of the IPC is made

out and keeping in view the period of incarceration already suffered by

each of the appellants, they be released on the period already undergone

by them.

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

does the impugned judgment call for any interference. The trial Judge

has rightly specified the role of each of the appellants. The medical

evidence of the witnesses is fully corroborative of their oral versions.

8 Arguments have been heard. Record has been perused.

9 PW-2 was the complainant. His statement was recorded in the

hospital (Ex.PW-2/A) pursuant to which present proceedings were

initiated. He deposed that on the previous day i.e. on 09.04.2001, his

brothers Rizwan and Zakir had had a fight with Lahiq, Fahim and

Mehtab (of whom only Lahiq and Fahim are the appellants before this

Court). On the previous night itself, pursuant to the quarrel, Mehtab and

his brother Rizwan were arrested. On the following day i.e. on

10.04.2001 at about 02:30 PM, when PW-2 along with his family i.e.

Nasreen (PW-3) and Irshad (PW-4) were having lunch in their house,

the appellants entered their house. Lahiq was holding a soda bottle;

Fahim and Safiq were holding meat cutting 'churas'; they attacked PW-

2 pursuant to which he sustained injuries on his left arm. His sister-in-

law Nasreen (PW-3) and his brother Irshad (PW-4) were also attacked.

They also received injuries. Lahiq had given a leg blow on the stomach

of PW-3 (who was pregnant at the time of the incident). Fahim had

attacked PW-4 with a 'chura' on his back. Meanwhile, Noor Mohd.,

Wasim and his father Samim also entered his house. They were also

armed with dandas. In his cross-examination, he admitted that he was

discharged on the same day. He did not know the reason for the quarrel

which had taken place on the previous night i.e. on 09.04.2001. He also

did not know the details as to why his brother Rizwan and Mehtab were

arrested pursuant to that quarrel. He reiterated that he was discharged

from the hospital at 08:00-09:00 pm. His MLC also reflects that his

injuries were simple.

10 PW-3 Nasreen was the sister-in-law of PW-2. She has deposed on

the same lines as PW-2. She has stated that she remained in the hospital

for 15 days; in her deposition she stated that the medical papers of her

treatment were with her mother-in-law; later on she stated that the

medical papers had been destroyed in a fire and she did not have any

document to substantiate her version. She admitted that she was given a

leg blow. Her MLC Ex.PW-15/A was proved through Dr. Veenita

Jaiswal (PW-15) who had identified the signature of Dr. Udit Verma

(who had since left the hospital). The MLC notes that the victim had

been brought into the hospital at 04:00 pm. She was conscious and

oriented. Her parameters were normal. She was seven months pregnant,

which is also the version of the prosecution. No discharge or any other

outward symptoms were noted; she was referred to a gynecologist.

There is no other medical paper of PW-3 to substantiate the averment

that she remained admitted in the hospital for about 15 days as is her

case; admittedly there was no documentary evidence to support this

argument.

11 Irshad (PW-4) was the husband of Nasreen (PW-3). He was also

an injured person and a victim of the crime. He has also deposed on the

same lines. He has stated that the parties were neighbours and the

families were known to each other. He had admitted that on the previous

day i.e. on 09.04.2001, his brothers Rizwan and Zakir had had a quarrel

with the accused persons and they had been arrested on 09.04.2001

itself. He reiterated that appellant Lahiq had given blows to his wife

(PW-3). He denied the suggestion that the accused had been falsely

implicated. The MLC of PW-4 was proved as Ex.PW-1/A. The nature of

injuries was opined to be 'dangerous'. There were three injuries which

were noted on the person of PW-4. They read as under:

"1 6x4 cm stab left hypochondirum, going intrapostional. Omentum coming out of wound.

2 10x3 cm muscle deep laceration left scapular region. 3 4x2 cm laceration, muscle deep over frontal region of scalp." 12 PW-4 was also shifted to O.T. for emergency surgery. However,

his medical papers also do not substantiate the argument of the

prosecution that he remained admitted in the hospital for 15-20 days as

all the medical papers to this effect are not a part of the record. Be that

as it may, this Court notes that the injuries suffered by the victim were

'dangerous' and he had to be shifted to O.T. on an emergency basis.

13 The evidence which has been collected thus reveals that the

parties were known to each other. There was a quarrel on the previous

night i.e. on 09.04.2001 where two brothers of the victim family, namely

Rizwan and Zakir, had had a quarrel with the accused persons, pursuant

to which Rizwan and another, Mehtab, had been arrested by the police.

On the following day i.e. in the afternoon of 10.04.2001, the accused

persons (all of whom are real brothers), had entered the house of the

victims and attacked them. Nature of the injuries suffered by PW-2 and

PW-3 were 'simple'. PW-2 was discharged on the same day. The

version of PW-3 that she remained in the hospital for 10-15 days has not

been substantiated. PW-4 suffered 'dangerous' injuries.

14 The two meat cutting 'churas' were allegedly recovered from

Safiq and Fahim. The recovery memo of the weapon recovered

(pursuant to the disclosure statement of appellant Safiq) was proved as

Ex.PW-2/H. This recovery was effected on 06.05.2001 and was

witnessed by PW-2, who testified that this 'chura' was recovered from

the machan inside the Jhuggi of Safiq. In his cross-examination, he

admitted that he had not gone inside the Jhuggi of Safiq and was

standing at a distance when the police officials went inside the Jhuggi

where they remained for 10-15 minutes. This version of PW-2, thus

clarifies that the recovery of the weapon was not made in his presence.

He was only the public witness and in fact the complainant. The

recovery thus becomes suspicious and cannot be relied upon.

15 The version of the prosecution that the second weapon of offence

i.e. a 'chura' was recovered (pursuant to the disclosure statement of

appellant Fahim) on 08.05.2001 was proved vide memo Ex.PW-2/L.

This recovery was also witnessed by PW-2. In his examination-in-chief,

he has testified that pursuant to the disclosure statement of Fahim, he

had led the police party to his Jhuggi from where, inside the machan

under a wooden box, the chura was recovered which was taken into

possession and sealed. In his cross-examination, he has admitted that the

house of Fahim was not very far from the place of his arrest. PW-2 was

standing at the gate outside the Jhuggi of Fahim when police officials

went inside and remained for 10-15 minutes. This admission qua this

recovery is also suspicious as admittedly this recovery was not made in

his presence; PW-2 was standing outside the gate when the recovery

was made from inside the Jhuggi of Fahim.

16 Both the recoveries i.e. Ex.PW-2/H and Ex.PW-2/L cast a doubt

and cannot be relied upon.

17 The ingredients of offence under Section 307 of the IPC

necessarily mandate a common intention or mens rea to cause such

injuries upon the person of the victim that by their act (had the victim

been killed), they would be guilty of culpable homicide not amounting

to murder. The manner in which the incident had taken place has been

described. There had been a previous quarrel on 09.04.2001 on which

date, members of the victim family had been arrested. The reason of the

quarrel on that day had not been spelt out by any witness of the

prosecution even though specific questions had been put to them; they

denied the suggestion that this had occurred because of an earlier quarrel

which had taken place between the parties. The injuries suffered by PW-

2 and PW-3 were opined to be simple and there was no medical record

of PW-4 to substantiate the fact that he remained in the hospital for 15

days but this Court notes his injuries were 'dangerous'. The recovery of

the weapons of offence is however doubtful.

18 Section 326 of the IPC necessarily constitutes that the act must

have been done voluntarily; it entails a mens rea; it entails causing of

grievous hurt by means of any instrument of shooting, stabbing, or

cutting. The injuries on the person of PW-4 being 'dangerous'; PW-4

had to undergo an emergent surgery; his MLC notes that there was a 6 x

4 cm hypochondrium wound on the omentum; 10 x 3 cm laceration on

the scapular region and a third wound measuring 4 x 2 cm deep on the

frontal region of the scalp. Blood loss was also evident.

19 Accordingly, this Court is of the opinion that the accused persons

in furtherance of their common intention are guilty of having committed

offence under Sections 326/34 of the IPC. Section 34 of the IPC does

not carve out a substantive offence; it is the common intention which

has to be adduced from the evidence which has been collected and

merely because due to inadvertence, the trial Judge had not ordered

conviction under Section 34 of the IPC and the accused persons not

having suffered any prejudice on this count, this Court modifies the

conviction of the accused persons from Section 307 to Section 326/34 of

the IPC.

20 The ingredients of offence under Section 506 of the IPC, which

involve a criminal intimidation to cause grievous hurt, are established.

The conviction under Section 506 of the IPC remains unaltered.

21 On the quantum of sentence this Court notes that the incident had

taken place as way back as in the year 2001 i.e. 13 years from today.

The accused persons are brothers hailing from the same family; they are

doing business as fruit vendors; they are the bread earners and support

of the family and as on date they have their individual families as well.

They have suffered agony of a long drawn trial. Each of the appellants

has already undergone incarceration of about 9 to 11 months (noted

supra).

22 Thus taking in view the entire facts and circumstances of the case

, interest of justice would be met if each of the appellants are sentenced

to the period already undergone by them.

23 Bail bonds are cancelled. Sureties discharged.

24     Appeals are disposed of in the above terms.




                                       INDERMEET KAUR, J
SEPTEMBER 25, 2014
ndn