Dalip Kumar Yadav vs State (Govt. Of Nct) Of Delhi
2015 Latest Caselaw 9218 Del

$~R-123

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on : 03.12.2015
                            Judgment delivered on : 11.12.2015

+      CRL.A. 1487/2013 & Crl.M.B.No.842/2014

       DALIP KUMAR YADAV                           ..... Appellant

                            Through: K.Singhal, Advocate.

                            versus

               STATE (GOVT. OF NCT) OF DELHI..... Respondent

                            Through    Mr.Tarang Srivastava, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 07.6.2013 and 09.7.2015 respectively wherein the

appellant stands convicted under Section 307 of the IPC. He has been

sentenced to undergo RI for a period of 7 years and to pay a fine of

Rs.5,15,000/- in default of payment of fine to undergo RI for 6 months.

Out of which Rs.5,00,000/- was to be released to the victim as

compensation.

2 Nominal roll of the appellant reflects that as on date he has

completed incarceration of almost 7 years.

3 The version of the prosecution was unfolded in the testimony of

the victim who has been examined as PW-4 (SO). She was an adult

aged about 18-19 years on the date of the offence. She was working as a

CS trainee in the HBN Group of Companies. The appellant was living

nearby. He was known to her since her third year of college. She was

continuously harassed by him for many days by making calls at her

mobile. He also used to come to her office stating that he was in love

with her. She told him that she was not interested in him and requested

him to stop harassing her but this was of no avail. On 04.9.2009 at about

6.00 p.m. she left the office for returning to home at RZ 230, Raghu

Nagar, Pankha Road, Delhi. When she reached District Park Janakpuri

the appellant came from behind and stopped her; she was on foot. He

had a Chinese chopper in his hand. He gave chopper blows on different

parts of her body; she fell down; she became unconscious. She was

taken to the DDU hospital. A complaint was lodged.

4 Victim was subjected to a lengthy cross-examination. In her

cross-examination, she admitted that she came to Delhi in December,

2008 for her CS training. She denied the suggestion that she lived with

the accused or had a friendly relationship with him or she wanted to

marry him. She admitted that appellant's friends Bhanu, Sunil and

Randheer Ojha were living with the accused. She stated that she used to

tie Rakhi to Bhanu. She admitted that she stayed in a rented

accommodation where Bhanu was also living at Savitri Nagar. She

knew that Bhanu is the cousin of the appellant. In another part of her

cross-examination she admitted that through an ATM account a sum of

money was deposited in her account.

5 Vehement submission of the learned counsel for the appellant is

that the parties were friendly and in love with one another that is why

the family of the appellant deposited money in her account.

6 The injuries suffered by the victim were described by Dr. Alok,

Senior Resident (Emergency) (PW-5). These injuries read as under:

1.CLW Middle ring finger left 3-4x2x1cm

2.CLW D 5-6 x 2.5x2 cm left forearm middle 1/3

3.CLW right left 5-6 x2x2 cm upper 1/3

4.CLW 15-20 cm x 6x2cm over left thigh groin area

5.Near total amputation right forearm from elbow

6. CLW almost total amputation with transverse resaction of

humerus right.

7 CLW 15-20 cm x 6 x 2 cm in the left thigh groin area and injury

on her arms which had led to amputation of her right forearm from

elbow are grievous injuries at vital parts of her body.

8 Submission of the learned counsel for the appellant that these

injuries were not at the vital parts of the victim and thus the offence

under Section 307 of the IPC is not made out is negatived by this

document.

9 Dr.B.N.Mishra (PW-6), Medical Officer from Department of

Forensic Medicine, DDU Hospital had also examined the weapon of

offence which has been used to attack the victim and which had been

seized from the appellant. It was a chopper made of steel with one edge

blunt and other was sharp having monogram of "SHOAI FENG" which

had a Chinese blade. The opinion of PW-6 after examination of this

weapon evidenced that the injuries in fact had been caused by this

chopper and injuries 2 to 6 even individually were sufficient to cause

death as it was followed by haemorrhage.

10 Dr. Deepak Vats (PW-9) of the Apollo Hospital had also brought

the treatment papers of the victim. It were multiple open injuries on

both her upper limbs, right and left thigh which were noted. Her

discharge summary and her treatment record suggested that she was

operated on 05.9.2009 and discharged from the hospital on 19.9.2010.

The victim had also been summoned in the Court in the course of the

proceedings. Her right limb from below the elbow was amputated; she

was wearing an artificial limb. A suggestion has been given to the

victim whether the compensation amount of Rs.5,00,000/- (which had

been ordered by the Trial Court) could be enhanced if correspondingly

the sentence of the appellant is reduced but this suggestion was wholly

unacceptable to her. She categorically stated that no amount of

monetary compensation could compensate her for the psychological

trauma and emotional loss which she had suffered at the hands of the

appellant.

11 In the statement of the appellant recorded under Section 313

Cr.P.C. he pleaded innocence stating that he had been falsely implicated.

He stated that he was in love with the victim. The victim was injured by

a robber and in fact he had chased the robber and had himself tried to

take her to the hospital but he could not remove her to the hospital as

public persons started beating him.

12 In defense produced one witness, who was his counsel and who

has stated that there was no evidence to be led in defence.

13 The defense emanating in the statement recorded under Section

313 Cr.P.C. is wholly unworthy of credit. His defense that the victim

was robbed and attacked by a robber and it was the appellant who had

attempted to chase the robber but was beaten up by the public is

preposterous to say the least. Had thus been the case, the victim would

not have implicated the appellant. The appellant who had been beaten

by the public was found near the place of occurrence at the time of his

arrest; chopper/gandasa was lying near him. The sketch of this weapon

has been proved as Ex.PW-12/A. Its size, length and width showed the

kind of perversion the appellant had in his mind which is fortified by the

injuries suffered by the victim and the opinion of the doctor that it was

this gandasa/Chinese chopper which had caused these injuries upon her

which all establish that the conviction of the appellant under Section 307

of the IPC was well founded.

14 The brother of the victim Shyam Narayan Ohja was examined as

PW-1. He had deposed that the accused used to forcibly stalk his sister.

He had visited their house in August 2009 threatening him with dire

consequences in case he did not agree to the relationship of the appellant

and the victim. He admitted that he was not an eye-witness but the fact

that the appellant used to stalk his sister was a fact known to him and

this has been reiterated by him.

15 The submission of the learned counsel for the appellant that this is

a case of false implication because of love relationship between the

appellant and the victim is nowhere borne out. This defense was rightly

rejected by the Trial Judge.

16 Learned APP for the State has in fact brought to the notice of this

Court the two judgments of the Apex Court reported as AIR 1995 SC

1066 E.K.Chandrasenan Vs. State of Karnataka ; AIR 1976 SC 2205

Nadir Khan Vs. State (Delhi Administration) to support his submission

that the sentence in such a case should in fact be enhanced. Submission

being that there were ample powers with the Appellate Court to enhance

if the facts so demand. The powers of the Appellant Court undoubtedly

under Section 386 of the Cr.P.C. are wide and they permit the Court to

enhance the sentence where the need arise. Needless to state that a

notice to show cause as to why sentence be not enhanced has to been

given to the accused prior thereto.

17 This Court has already heard the arguments as noted supra.

Appellant was also produced through production warrants and so also

the victim. The appellant has suffered incarceration of about almost 7

years. The victim has also moved in life. The mental and physical

trauma may not have been worn off and can probably never be washed

away and her forthright submission before this Court that she would not

wish for any monetary compensation in lieu of reduction of the period of

incarceration qua the appellant is noted; this Court comes to the

conclusion that the appellant deserves no leniency in sentence. At this

stage this Court is also not inclined to enhance the sentence of the

appellant noting that the appellant was a first time offender. Hopefully

over the years he would after introspection feel remorseful and

retributive. This was a first time offence of a perverted mind.

18 In this background while holding the conviction of the appellant

the sentence is maintained.

19     Appeal is disposed of in the above terms.

                                               INDERMEET KAUR, J

DECEMBER 11, 2015/ndn