Delhi High Court
Vikas @ Monu & Anr vs State (Govt Of Nct Of Delhi on 20 July, 2015
Author: Ashutoshkumar
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.1539/2011
Date of decision: 20.07.2015
VIKAS @ MONU & ANR ..... Appellants
Through: Mr.Vinod Puggal, Advocate.
versus
STATE (GOVT OF NCT OF DELHI ..... Respondent
Through: Mr.Lovkesh Sawhney, APP.
SI Kailash Kumar, P.S.Mangolpuri.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ORDER
% 20.07.2015
ASHUTOSH KUMAR, J. (ORAL)
1. The appellants herein have challenged the judgment and order
of conviction dated 24.11.2011 and 1.12.2011 whereby they have been
convicted for the offence under Section 307 with the aid of 34 of the
IPC and have been sentenced to undergo rigorous imprisonment for
three years and pay a fine of Rs.2500/- each with the default
stipulation of rigorous imprisonment for three months.
2. According to the prosecution version, the appellants had uttered
indecent language about the sister of the complainant when she was
being accompanied by the complainant to her home. The prosecution
case, further, is that the complainant came back after dropping his
sister at home and enquired from the appellants as to the reason for
such unruly behaviour. He was accompanied by his uncle, Pintu, who
had met him on way when he was approaching the appellants.
3. On such accost, appellant Vikash is said to have given a sword
blow on the forehead and mouth of the complainant. When Pintu,
uncle of the complainant came to his rescue he was given a sword
blow on his head. They exhorted each other to kill the complainant
and his uncle.
4. Pursuant to the complaint, FIR bearing No.575/2005 was
registered at Police Station Mangolpuri. Investigation ended in
submission of a report under Section 307/34 of the IPC.
5. The Trial Court after examining 7 witnesses on behalf of the
prosecution, convicted the appellants under Section 307/34 of the IPC
and sentenced them to undergo the imprisonment as aforementioned.
6. Learned counsel for the appellants, while assailing the judgment
of conviction and sentence submitted that PW.2 and PW.6 namely the
complainant and his uncle are the injured witnesses but their
statements do not inspire confidence. During their cross-examination,
PW.2 and PW.6 have made statements which demolishes the
prosecution version.
7. Vicky (PW.2) in his deposition before the Court stated that
Vikash, one of the appellants, was a friend of his brother and that the
quarrel took place in the night and it was witnessed by 5-10 persons
who were present there. PW.2, because of darkness could not ascertain
as to who was the author of the injuries on his person. Similar
statement has been made by Pintu (PW.6). The injuries on the person
of PW.2 and PW.6 have been proved by the witnesses.
8. Learned counsel for the State submits that the factum of assault
has been established by the deposition of PW.2 and PW.6. Whatever
inconsistencies crept in their cross examination was because of time
gap between the examination-in-chief and the cross examination of the
witnesses. It has further been submitted that for such inconsistencies
the entire deposition of PW.2 and PW.6 cannot be thrown away
(Refer: Khujji @ Surendera Tiwari vs. The State of Madhya Pradesh,
1991 AIR 1853).
9. Injuries on the person of PW.2 (Ex.PW.3/A) have been stated to
be grievous because of scars on the left cheek and eye brow, by
Dr.Brajesh Singh (PW.3). He has proved the MLC (Ex.PW.3/A) of
Vicky (PW.2). He has also proved the MLC (Ex.PW.5/A) of Pinto
(PW.6). PW.6 has suffered lacerated wound over left fronto parietal
region.
10. From the deposition of the witnesses it appears that there was a
fight between the appellants and the complainant. The fight took place
because of use of foul language by the appellant No.1 regarding the
sister of the complainant (PW.2). The nature of injuries suffered by
PW.2 and PW.6 do not make out a case under Section 307 of the IPC.
There were no supervening circumstances and nobody came to the
rescue of PW.2 and PW.6 when they were assaulted by the appellants.
Thus there does not appear to be a requisite intention warranting
conviction under Section 307/34 IPC.
11. That apart, the sword which was used for attacking the
complainant and his uncle was seized on the showing of appellant
No.1. The fingerprint over the sword was not taken nor was the
weapon sent for forensic examination for ascertaining whether the
sword was used by the appellants. The other aspect of the matter
which merits attention is that the occurrence took place, according to
the prosecution version while the complainant and his sister, were
going home. It does not appear to be probable that the appellants
would wait for the complainant to come back to settle scores with
them or they, in particular, PW-1 would be armed with the sword to
ward off the expected attack.
12. However, considering the fact that PW.2 and PW.6 have
testified that they suffered injuries at the hands of the appellants but
the injuries even though held to be grievous not being sufficient to
warrant a presumption of any intention required for attracting the
mischief of Section 307 of the IPC, this Court is of the view that the
appellants have made themselves liable to be convicted and sentenced
for the offence under Section 324 of the IPC.
13. Considering the nature of the offence, the circumstances in
which it was committed and the relationship between the appellants
and the complainant, this Court is of the opinion that the interest of
justice would be sub-served if the appellants are sentenced for the
period that they have already undergone in custody but subject to both
the appellants paying a sum of Rs.35,000/- each, to be given to PW.2
and PW.6 in equal measure.
14. The appellants are, therefore, convicted under Section 324/34 of
the IPC and are sentenced for the period which they have undergone
already.
15. The complainant (PW.2) and his uncle (PW.6) are present in the
Court. The appellants have paid Rs.35,000/- each and the amount has
been accepted by PW.2 and PW.6.
16. The appeal is partially allowed. The conviction and the sentence
stand modified as aforesaid.
17. Copy of this order be transmitted to the superintendent of the
concerned jail for information.
ASHUTOSH KUMAR, J
JULY 20, 2015
k
