Vishnu Sharma @ Sonu vs State
2015 Latest Caselaw 4749 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : MAY 27, 2015
                                    DECIDED ON : JULY 07, 2015

+                             CRL.A.996/2014

       VISHNU SHARMA @ SONU                  ..... Appellant
                   Through : Mr.Pramod K.Dueby with Mr.Shiv
                             Chopra and Ms.Neha, Advocates.

                              VERSUS

       STATE                                                ..... Respondent
                              Through :    Ms.Kusum Dhalla, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Vishnu Sharma @ Sonu impugns a judgment

dated 06.12.2013 in Sessions Case No.117/13 arising out of FIR

No.19/2013 registered at Police Station Bharat Nagar by which he was

convicted under Section 307/324 IPC. By an order 14.12.2013 he was

awarded RI for four years with fine `2,000.

2. Briefly stated the prosecution case as reflected in the charge-

sheet was that on 18.01.2013 at about 07:30 p.m. at Jhuggi No.N-31/1,

Back Side Shakti Apartment, Ashok Vihar, Phase-II, Delhi, the appellant

and his associate Nitin (since expired) outraged modesty of 'X' (assumed

name) aged 17 years. She reported the incident to her aunt Kamal Yadav

who took her to husband's shop where the appellant and Nitin in

furtherance of their common intention inflicted injuries to both Kamal and

Sandeep. Daily Diary (DD) No.54 B (Ex.PW-5/A) was recorded at

Police Station Bharat Nagar at 07:30 p.m. that day on getting information

about the occurrence. The investigation was assigned to SI Dilbag Singh.

The victims were medically examined at Babu Jagjivan Ram Memorial

hospital. The Investigating Officer lodged First Information Report after

recording Kamal Yadav's statement (Ex.PW-7/A) and seized various

articles at the spot. Statements of the witnesses conversant with the facts

were recorded. The accused was arrested. After completion of

investigation, a charge-sheet was filed against him in the court. To

establish its case, the prosecution examined fifteen witnesses. In 313

statement, the appellant denied his involvement in the crime and pleaded

false implication without examining any witness in defence. The trial

resulted in his conviction as aforesaid. Being aggrieved and dissatisfied,

the instant appeal has been preferred.

Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error to base conviction on the testimonies of interested

witnesses without independent corroboration. Some of the witnesses were

unable to identify the crime weapon. The prosecution was unable to

establish appellant's motive to pick up quarrel with the victims. On the

same set of evidence, the appellant was acquitted of the charge under

Section 354 IPC. The prosecution witnesses have given divergent and

conflicting statements about the occurrence. The doctors who medically

examined and treated the victims were not produced. The appellant had

no intention to commit murder. Counsel further pointed out that the Trial

Court showed undue haste to record statements of the prosecution

witnesses on a single day on 04.10.2013 depriving the appellant of fair

and reasonable opportunity to cross-examine them. Learned Additional

Public Prosecutor urged that the trial court based its findings on fair and

proper appreciation of the evidence and it needs no intervention.

3. After the occurrence at around 07:30 p.m. on 18.01.2013,

DD No.54B (Ex.PW-5/A) came into existence promptly without any

delay. The victims were taken to Babu Jagjivan Ram Memorial hospital.

MLC (Ex.PW6/A) reveals that Sandeep was brought there at 08:30 p.m.

with the alleged history of physical assault; Kamal Yadav arrived there at

08:40 p.m. The Investigating Officer after recording Kamal Yadav's

statement (Ex.PW-7/A) lodged FIR promptly without any delay by

sending rukka (Ex.PW-15/A) at 10:40 p.m. There was, thus, no delay in

reporting the incident to the police. In the complaint (Ex.PW-7/A), Kamal

Yadav gave detailed account of the occurrence and specifically named the

appellant and his associate Nitin to be the perpetrators of the crime. She

also disclosed that both Nitin and the appellant under the influence of

liquor had outraged 'X's modesty when she was preparing tea in the

kitchen. When she took 'X' to her husband's shop, both the accused

arrived there and inflicted injuries to her husband. When she intervened

to save him, she was also caused injuries on her body. Since the FIR was

lodged without any delay, there was least possibility of the injured witness

to concoct a false story in such a short period to falsely implicate the

appellant by name.

4. Both Kamal Yadav and Sandeep Yadav were injured in the

incident. MLC (Ex.PW-6/A) reveals that Sandeep had sustained two

incise wounds over his middle finger and left side of the chest. Kamal

sustained 'grievous' injuries on her body. Being injured, both the victims

must be interested to bring the real culprit to book and were not expected

to spare the real offenders and falsely implicate the innocent ones. Very

cogent and convincing reasons required to discard their evidence are

lacking. It has come on record that Nitin, Sandeep Yadav (PW-10)'s real

brother died in a road accident after the incident. The appellant used to

visit him (Nitin) who lived in a nearby jhuggi and the parties were

acquainted with each other. The appellant has not denied the incident as

such in which Sandeep Yadav and his wife Kamal Yadav sustained

injuries. His plea is that he was not responsible for the injuries and it was

Nitin with whom a quarrel had taken place and the blame was diverted

upon him to save him.

5. Crucial testimony to infer the appellant's guilty is that of

PW-10 (Sandeep Yadav) who deposed that on 18.01.2013 at about 7/7:30

p.m. when he was sitting at his shop, his wife and 'X' came and informed

him that the appellant and Nitin who were in drunken condition had done

'batamiji' with 'X'. Attributing specific role, he continued to depose that

at that moment of time, Nitin and Sonu arrived there and started abusing

him. Nitin caught hold of him from back and Sonu inflicted two knife

blows on his stomach and finger. When Kamal Yadav intervened to save

him, both Nitin and Sonu caught hold of her and started beating her. Nitin

hit her on her head with the 'butt' of the 'katta' in his possession and Sonu

gave knife blow on her back when she was in the process to escape from

the spot. After hurting them, Nitin and Sonu fled the spot on a bike. PCR

officials shifted them to BJRM hospital. Knife (Ex.P1) used in the crime

was identified by him. In the cross-examination, he disclosed that his

brother Nitin was previously involved in a case under Section 302 IPC but

was acquitted. He admitted that his wife and brother Nitin did not have

cordial relations and Nitin used to live in an adjoining 'jhuggi'. He

further admitted that 'X' did not sustain any injury on her body. He

denied that the appellant was falsely implicated along with Nitin as he

wanted to grab Nitin's jhuggi. He denied that there was a personal dispute

with Nitin and in order to save him, he diverted the blame upon the

appellant alone to get the jhuggi vacated.

On scrutinizing the testimony of the injured witness, it

reveals that no material discrepancies/infirmities could be extracted in his

cross-examination. The accused did not deny his presence at the spot at

the time of occurrence. The material facts proved against him in the

examination-in-chief remained uncontroverted. No ulterior motive was

assigned to the witness to falsely implicate him in the case.

6. PW-7 (Kamal Yadav) other victim has fully supported PW-

10 (Sandeep Yadav) and has corroborated his version in its entirety. She

also deposed that her niece 'X', aged 17 years, used to stay with them for

the last about one year. On 18.01.2013, the appellant and Nitin teased her

('X') when she was making tea in the kitchen. After coming to know of it

from 'X', she took her to her husband. Both Nitin and Sonu followed

them. When she apprised her husband of the occurrence, Nitin and Sonu

started quarreling with him. Nitin told Sonu to stab her husband "Mere

bhai ko chako mar de". On that, Sonu who had already brought a knife,

stabbed her husband on the chest and right hand. She immediately called

police at 100. Thereafter, they picked upon an altercation with her; Nitin

hit on her head with an object looking like a pistol as a result of which she

fell down. They continued to give her leg and fist blows. She managed to

get up and tried to run away from the spot on which Sonu inflicted knife

blow on her back. PCR officials took them to the hospital where her

statement (Ex.PW-7/A) was recorded. She remained admitted in the

hospital for a week and her husband was there for 4/5 days. She was,

however, unable to identify the knife recovered by the police used in the

incident. In the cross-examination, she admitted that 'X' did not sustain

any injury. The jhuggi in which Nitin lived was in their possession at

present. She denied that no such incident had occurred and Sonu was

falsely implicated. Again, nothing material could be brought out to

suspect the testimony of the victim. She has proved the version given to

the police at first instance without any variation. She had no extraneous

consideration to falsely implicate Sonu with whom she had no prior

animosity.

7. PW-9 (Ramu) and PW-13 (Rinku), Sandeep Yadav's

employees present at the shop have also supported the prosecution and

corroborated the testimonies of the victims without any deviation. Both of

them too implicated the appellant and Nitin for inflicting injuries to

Kamal Yadav and Sandeep Yadav. PW-8 ('X') also deposed that when

she was teased by Nitin and Sonu, she informed her 'Bua' who took her to

the shop of her 'phufa'. There Kamal and Sandeep Yadav caused injuries

to them. Her testimony on material facts remained unchallenged.

8. All the ocular witnesses have implicated both Nitin and Sonu

for causing injuries to Kamal Yadav and Sandeep Yadav. The ocular

testimony is in consonance with the medical evidence where injuries

revealed by them were found on the bodies of the victims. The exhibits

collected during investigation were sent to Forensic Science Laboratory.

FSL report (Ex.PW15/H) shows that blood of human origin was detected

on the victim's clothes confirming injuries sustained by them.

9. Certain minor contradictions, inconsistencies and

discrepancies on trivial matters highlighted by the appellant's counsel are

not relevant and vital to discredit the otherwise cogent and natural

testimonies of the injured witnesses. Acquittal of the accused under

Section 354 Cr.P.C. ipso facto is not fatal to the prosecution case. In case

of conviction based upon direct evidence, the question whether there is

any motive or not becomes wholly irrelevant. In the instance case, the

appellant had acted on the instigation of his close companion. In 313

statement, he did not give any plausible explanation to the incriminating

circumstances proved against him. No valid or sound reasons exist to

disbelieve the testimonies of the victims.

10. It is true that undue haste was shown by the trial court when

statements of prosecution witnesses numbering 15 were recorded on the

same day. However, at no stage the accused or his counsel moved any

application before the trial court to recall any of the prosecution witnesses

for further cross-examination. Nothing has come on record to show if any

prejudice was caused to the appellant because of examination of all these

witnesses on a single day. Conviction under Section 307/324 IPC can't be

faulted as injuries were administered repeatedly on vital organs

intentionally by a sharp weapon upon the unarmed victims.

11. Regarding sentence, nominal roll dated 07.10.2014 reveals

that the appellant has already suffered incarceration for one year, seven

months and twenty four days besides remission for two months and

thirteen days as on 07.10.2014. He is a first time offender and is not

involved in any other criminal case. His overall conduct in jail is

satisfactory. He was aged around 20 years and his family comprised of

his aged widow mother, one elder brother, two sisters, wife and a

daughter. He suffered conviction due to his association with Nitin,

Sandeep's brother and was not direct beneficiary. The injuries suffered by

Sandeep Yadav were 'simple' in nature. Kamal also sustained 'simple'

hurt from surgical side and 'grievous' one from ortho side.

12. Considering the mitigating circumstances, the substantive

sentence of the appellant i.e. RI for four years is reduced to RI for three

years. The appellant shall, however, pay ` 25,000/- as compensation

which shall be equally shared by both the victims. It shall be deposited in

the trial court within two weeks to be released to the victims after due

notice.

13. The appeal stands disposed of in the above terms. Trial Court

record (if any) along with a copy of this order be sent back forthwith. A

copy of the order be sent to Jail Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE JULY 07, 2015/sa