Ashok Kumar & Anr. vs State Of Delhi
2015 Latest Caselaw 1452 Del

$~42
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 17/2011

                                            Decided on 20th February, 2015


       ASHOK KUMAR & ANR.                                  .... Appellants
                   Through            Mr.Sunil Chaudhary, Adv.


                         versus

       STATE OF DELHI                                   ..... Respondent

                    Through           Mr.Yogesh Verma, APP for the State.


CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.(ORAL)

1. By the judgment dated 19th November, 2010 appellants have been

convicted under Sections 452/308/34 Indian Penal Code, 1860 (IPC, for

short). Appellant no.2 has been given benefit of The Probation of Offenders

Act, 1958 by the trial court and has been released on probation of two years

of good behaviour and to maintain peace, on furnishing personal bond of

`30,000/- with one surety in the like amount vide order on sentence dated

24th November, 2010. Appellant no.1, by the same order, has been

sentenced to undergo three years of rigorous imprisonment under Section

452 IPC with a fine of `5,000/- and in default of payment of fine to further

undergo rigorous imprisonment of three months; to undergo rigorous

imprisonment of three years with the fine of `5,000/- and in default of

payment of fine to further undergo rigorous imprisonment of three months

under Section 308 IPC. Both the sentences have been directed to run

concurrently. Benefit of Section 428 of the Code of Criminal Procedure,

1973 (Cr.P.C.) has also been given to appellant.

2. Aggrieved by the conviction as also the sentences awarded, appellants

have preferred this appeal.

3. Complainant in this case is real sister of appellant no.1. Appellant

no.2 is sister-in-law (wife of appellant no.1). Complainant alleged in the

FIR that parties were embroiled in property dispute regarding partition of the

property wherein she was living, that is, 3808/6, Kanhiya Nagar, New Delhi-

110034. This property was owned by the mother of appellant no.1.

Complainant as well as appellant no.1 were living in same property in

different portions. On 24th July, 2007 at about 2.00 p.m., appellant no.1

armed with a danda came along with appellant no.2 in the portion of the

premises which was in the possession of complainant and asked her to

vacate the same and when she refused, he gave beatings to her with the

danda causing injuries on her person. She was removed to hospital.

4. It emerges from the record that complainant did not make any

statement to the police official who had reached the hospital on receipt of

information about the quarrel, on the pretext that she will make statement

only after consulting her lawyer. Subsequently, complainant filed an

application under Section 156 (3) of Cr.PC before the Metropolitan

Magistrate and pursuant to the directions of the Magistrate, FIR was

registered. Complainant gave details about the previous quarrels and also

the details of the property disputes in her complaint. She alleged that

appellant no.1 was compelling her to vacate the premises and on this count,

used to quarrel with her. She further stated that on 24 th July, 2007 appellant

along with appellant no.2 gave beatings to her with the danda. It may be

noted that injuries have been opined by the doctor as simple caused by blunt

object.

5. During the trial complainant stepped in the witness box as PW-6 and

supported her version as contained in FIR. Trial court has found her

testimony to be trustworthy and reliable and has convicted the appellant for

having trespassed the property of complainant and assaulting her with such

intention and knowledge and under such circumstances that, if by that act,

appellants had caused death of the complainant, they would have been guilty

of culpable homicide not amounting to murder. It has been further held that

appellants were sharing common intention at the time of assault. Trial court

was also of the view that since appellants had trespassed the property of

complainant while assaulting her, they were also guilty of committing

offence under Section 452 IPC.

6. I have heard learned counsel for the appellants, learned Additional

Public Prosecutor and perused the trial court record. Appellants' counsel

has not disputed the happening of incident. Even otherwise, I have

carefully perused the testimony of PW6 and find that she has withstood the

test of cross-examination and her statement in examination in chief has

remained un-shattered in her cross-examination. As regards the incident

dated 24th July, 2007 is concerned, in my view trial court has rightly

accepted her version that appellant no.1 along with appellant no.2,

intercepted the complainant, picked up a quarrel with her and thereafter

appellant no.1 assaulted the complainant by a danda, which he was carrying

with him. However, it has to be seen as to whether the acts of the appellants

attract the ingredients of offences under Sections 308 and 452 IPC. As

regards Section 34 IPC is concerned, the same is attracted since appellants

were sharing common intention, which fact is apparent from the sequence of

events as detailed hereinabove. Appellant no.1 and appellant no.2 had gone

together and both of them had picked up a quarrel with the complainant. At

that time, appellant no.1 was armed with a danda in his hand and which fact

was within the knowledge of appellant no.2. Appellant no.1 gave beatings

to complainant with the danda in the presence of appellant no.2 and she

supported the appellant no.1 in this act. She played active role in the

incident with the appellant no.1.

7. Section 308 IPC envisages that whoever does any act with such

intention or knowledge and under such circumstances that, if he by that act

caused death, he would be guilty of culpable homicide not amounting to

murder. In this case neither such intention nor knowledge can be gathered

from the nature of injury sustained by the victim and also the circumstances

in which such injuries had been caused. In this case, there used to be quarrel

between the appellants and complainant over the property owned by their

mother. Complainant and appellants were living in the same property. From

the sequence as narrated by the complainant, it appears that a quarrel erupted

all of a sudden over the property wherein appellant no.1 in the heat of

passion gave beatings to the complainant. Nature of injuries are not such

which will be sufficient to indicate that appellants had any intention or

knowledge that by their this act they would have caused death of

complainant. It is trite law that intention and knowledge has to be gathered

from the circumstances in which injuries are caused and also from the nature

of injuries sustained by the victim. Accordingly, I am of the view that

ingredients of Section 308 IPC are not attracted in this case and the case fall

within the ambit and scope of Section 321 IPC which envisages that

whoever voluntarily with intention causes hurt to any person or with the

knowledge that he is likely thereby to cause hurt to any person, is said

"voluntarily to cause hurt". Section 323 IPC provides punishment for

voluntarily causing hurt. Section 323 provides imprisonment for a term

which may extend to one year, or with fine which may extend to `1000/-, or

with both.

8. As regards offence under Section 452 IPC is concerned, the same is

also not attracted in this case. Section 452 IPC provides that whoever

commits house-trespass, having made preparation for causing hurt to any

person or for assaulting any person, or for wrongfully restraining any

person, or for putting any person in fear of hurt, or of assault, or of wrongful

restraint, shall be punished with imprisonment of either description for a

term which may extend to 7 years, and shall also be liable to fine. In this

case, a perusal of FIR shows that no allegation has been made in the

complaint that appellants had forcibly entered in the room of complainant

and had assaulted her. In para 12 of the FIR complainant has stated that on

24th July, 2007 accused persons attacked her with dandas with motive to kill

and injuries were caused on her head. Accordingly, in my view appellants

cannot be convicted under Section 452/34 IPC. Their conviction under

Section 452 is set aside.

9. For the foregoing reasons, conviction of the appellants under Section

308/34 IPC is set aside and appellants are convicted under Section 323/34

IPC. Appellant no.2 has not been awarded any sentence. She has been

extended benefit of Probation of Offenders Act. The sentence awarded to

her requires no interference. As regards appellant no.1 is concerned, his

sentence is modified to the period already undergone by him besides

imposing fine of `1000/-. Appellant no.1 is further directed to pay

compensation of `60,000/- to the complainant namely Rekha.

Compensation be deposited by the appellant no.1 before the trial court

within eight weeks. In case compensation is not deposited, appellant no.1

shall have to undergo simple imprisonment for six months. The amounts

already deposited towards fine shall be given adjustment of while making

deposits in terms of this order. Out of the amount deposited in court,

`60,000/- be released to the complainant, namely, Rekha.

10. Appeal is disposed of accordingly.

A.K. PATHAK, J.

FEBRUARY 20, 2015 ps