[email protected] & Anr. vs The State
2016 Latest Caselaw 7149 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                       +      CRL.A. No.61/2002
                                    Date of Decision : 30th November, 2016

     [email protected] & ANR.             ..... PETITIONERS
               Through  Ms.Inderjit Sidhu, Adv.

                           versus

     THE STATE                                         ..... RESPONDENT

                           Through        Mr.Panna Lal Sharma, APP with SI
                                          Jainender Kumar, PS Anand Vihar.

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

     P.S.TEJI, J

1. Aggrieved by the judgment of conviction dated 18th August,

2001 convicting the appellants finding them guilty under Section

308 read with Section 34 of the Indian Penal Code and order on

sentence dated 20th August, 2001 vide which the sentence was

passed against the accused to undergo rigorous imprisonment for a

period of two years each and to pay a fine of Rs.5,000/- each, and

in default of payment of fine, to undergo further simple

imprisonment for six months, the present has been preferred by the

appellants.

2. The facts in brief are that a complaint was made by Shri

Kapil, son of Wakil Mohammad, in which it was alleged against

the appellants that on 13th June, 1998 when the complainant Kapil

was going to the house of his friend Sarbuland Khan and reached

towards Gurdwara, he saw that Sarbuland Khan; [email protected]

& [email protected] who resided in the same locality, were

quarrelling with one another. Thereafter, Sarbuland Khan asked

[email protected] as to why he teased his sister Zohra over which

Kallu got angry and asked his associate Nikkey to beat them. This

resulted in a minor scuffle in which Kallu and Nikkey brought

dandas from their jhuggies and started beating the complainant

while Sarbuland Khan went to call the police. In the meanwhile,

Kallu and his associates kept on giving danda blows on the head of

the complainant Kapil who fell down. After that police came on

the spot and the complainant was admitted to S.D.N. Hospital and

his statement was recorded by the police. After investigation of the

case, the chargesheet was filed for offence under Section 308 read

with 34 of the IPC against both the accused. Both the accused

persons pleaded not guilty.

3. The prosecution had examined as many as 11 witnesses

namely PW 1 Kapil, PW 2 Ramji Lal, PW 3 Dr.D. Chatterjee, PW

4 Dr. Amitabh Singh, PW 5 Smt.Usha Rani, PW 6 Nisan Singh,

PW 7 HC Sat Prakash, PW 8 Const.Khursheed Ahmad, PW 9 SI

Ramesh Malik; PW 10 Dr.Chaitanya Sharma & PW 11

Dr.Sharmila Mitra. The statements of the accused persons were

recorded under Section 313 of the Code of Criminal Procedure by

placing the incriminating evidence against them.

4. The challenge made to the judgment of conviction and order

on sentence inter alia on the following grounds:-

(i) In the alleged incident, the appellants also received injuries.

The injury on the person of the appellant no.1 was serious in nature

as per Ex.PW 3/A and as stated by the investigating officer of the

case. The appellant no.1 was seriously injured in the alleged

incident which clearly shows that the complainant party had come

prepared to attack the appellants and inflicted injuries upon them.

The incident took place near the house of appellant no.1 and as the

complainant party had a grudge against the appellants, they came

fully prepared to attack the appellants. If the version of the

prosecution is to be believed, on being attacked by the complainant,

the appellants were justified in defending themselves and that the

alleged injuries on the complainant could have occurred due to self

defence on the part of the appellants.

(ii) There are also major contradictions in the statement of the

complainant to the effect that the main reason of the attack i.e.

teasing of sister of Sarbuland Khan, as per the statement of the

complainant was told by Sarbuland Khan at his house when the

complainant reached there. However, in the same line, this witness

went on to say that he was told of the reason when he met

Sarbuland Khan near the house of the appellant.

(iii) The Trial Court failed to appreciate the fact that so far as the

statement of eye witness PW 2 is concerned, the same does not

inspire confidence inasmuch as according to his statement, the

complainant was alone when he was being beaten by the appellants

which is in complete contradiction to the prosecution case which is

to the effect that both Kapil and Sarbuland Khan were present near

the house of the appellants when the alleged incident occurred.

Thus, if the statement of this witness is to be believed, then

withholding of Sarbuland Khan as a prosecution witness goes to the

root of the entire case and is fatal to the prosecution story.

(iv) The material witness i.e. Zohra, sister of Sarbuland Khan

who was alleged to have been teased by the appellant no.1, had not

been examined. The Trial Court did not appreciate the fact that the

alleged weapon of offence i.e. dandas were not even shown to the

complainant at the time of his evidence as a result of which the

alleged injury which was shown to be caused by the alleged dandas

by the appellants, could not be linked to the weapon which was

used. No specific role had been assigned to the appellants in

causing alleged injuries to the injured.

(v) Instant case lacks fair and proper investigation inasmuch as

despite the knowledge of injuries on the appellants and even after

medical opinion in respect of the injuries sustained, no case was

registered against the complainant and his companions despite the

knowledge of the incident to the police. Apart from this, the

prosecution did not bother to record the statement of the injured

appellants. The FIR was lodged after a lapse of twenty days from

the date of incident which clearly casts doubt over the episode and

shows that the possibility of altering/twisting the facts of the

incident cannot be ruled out. The delay in lodging the FIR of the

incident is stated to be unexplained.

(vi) The charge has been wrongly framed under Section 308 of

the IPC and it ought to have been framed under Section 323 of the

IPC as a bare reading of the facts and circumstances of case lead to

invoking of Section 323 IPC itself.

5. The submission made by counsel for the appellants is

primarily that the injury attributed in the present case makes the

appellants liable to be charged under Section 323 read with Section

34 of the IPC and not under Section 308 read with Section 34 of the

IPC as has been framed.

6. In support of her contention, learned counsel for the

appellants relies on the judgment of this court in which the charge

framed under Section 308 of IPC was converted into Section 323 of

IPC taking into consideration the facts and circumstances of the

case. The relevant portion of this judgment reads as under:-

"9. It appears to me that a quarrel had actually taken place between the appellant and the complainant possibly on account of either of them feeling that the other one was staring at him and confronting him accordingly. Though the complainant did sustain injuries, in the facts & circumstances of the case, the Court cannot be sure as to whether a palta was actually used by the appellant for causing injuries to him or not. In any case, it cannot be known, what was the size and shape of the said palta. In these circumstances, it would be difficult to say that the appellant had caused injuries to the complainant with such intention and knowledge that under such circumstances that if he by that act had caused death he would be guilty of culpable homicide not amounting to murder. The charge under Section 308 of IPC, therefore, cannot be sustained. The appellant, however, is liable to be convicted under Section 323 of IPC for causing simple injuries to the complainant as Mohammad. He is convicted accordingly."

[Mohd. Akhtar Vs. The State passed in Crl.A. No.197/2010 Dt.03.04.2014]

7. Apart from challenging the judgment of conviction, learned

counsel for the appellants further submitted that as per the nominal

roll, as on 12th November, 2016, the appellant no.1 Amar

[email protected] had undergone six months and twenty seven days

incarceration and unexpired portion of his sentence is one year, two

months and twelve days. Whereas as per nominal roll of appellant

no.2 [email protected], as on 16th March, 2002, the undergone period

of sentence by him was seven months & one day while unexpired

portion of sentence of the appellant no.2 was one year two months

and twenty nine days. The nominal roll also reflects that the

appellant no.2 was released on bail on 16th March, 2002 by the

order of this Court. Learned counsel for the appellants requests for

lesser sentence.

8. Per contra, arguments advanced by learned Additional Public

Prosecution for the State is that the injury suffered by the

complainant/injured is grievous in nature. It was argued that

during his deposition in court, the injured fully supported the case

of the prosecution and his testimony has been duly corroborated by

another eye witness PW 2 Ramji Lal. Even the testimony of

injured has been corroborated by medical evidence and statements

of the doctors who medically examined the injured and his medical

papers. The prosecution successfully established its case beyond

reasonable doubt that on the date of incident, the appellants caused

grievous injury on the head of the injured and they have been

rightly convicted by the trial court.

9. Upon hearing the rival contentions of the parties at length

and judgment relied upon, evidence led is being examined.

(I). The complainant Kapil examined as PW 1 in his statement

deposed that on 13th June, 1998, accused Nikkey and Amarnath

teased the sister of his friend Sarbuland Khan at Gurdwara wali gali

and when he and his friend Sarbuland Khan reached the narrow

gali near Gurdwara to confront the accused persons regarding the

teasing of sister of Sarbuland Khan, both the accused started

beating them with dandas and both the accused gave danda blows

on the head of the complainant. He further deposed that he became

unconscious and thereafter police came and took him to the

hospital where he was medically examined.

(II) PW 2 in his testimony deposed that both the accused persons

were using sticks at the time of quarrel and despite his effort to

intervene, he could not save the complainant/Kapil. This witness

further deposed that the complainant received head injuries on his

head and blood was oozing out and that the condition of the

complainant did not improve on the date of his examination. This

testimony of PW 2 corroborates with the injured persons testimony

mentioned above.

(III) Statement of PW 5 Smt.Usha Rani, sister of the accused

Amarnath was also recorded in which she deposed that her brother

was arrested by the police in connection with the case and accused

Nikkey was also got arrested on the next day of the arrest of his

brother.

(IV) Statement of PW 6 Nisan Singh in his statement deposed that

he was called to the police station where both the accused persons

were arrested and their personal search was conducted in his

presence vide memos Ex.PW 5/C and 5/D respectively which bears

his signatures at point-B of these memos.

(V) Statement of PW 7 HC Sat Prakash was recorded in which

he deposed that while being posted at Police Station Anand Vihar

as Head Constable, he received a ruqqa brought by Constable

Mahender Singh and that on the basis of the said ruqqa, FIR was

lodged.

(VI) Thereafter, statement of PW 8 Constable Khursheed Ahmad

was recorded in which he deposed that while being posted at PS

Anand Vihar, he accompanied the investigating officer of the case

to Bhikam Singh Colony and that the accused Amar Nath took

them to his jhuggi and produced two dandas which were taken into

possession by them. The memo as well as seizure memo was

exhibited as Ex.PW 8/A and bore their signatures. The

confessional statements of both the accused were recorded as

Exh.PW 8/B & 8/C respectively and bear his signatures.

(VII) PW 9 SI Ramesh Malik in his statement deposed that he

along with Ct.Omkar went to Bhikam Singh Colony wherein he

was informed that the injured persons had been removed to the

police station Anand Vihar. He further deposed that both the

accused also sustained serious injuries and injured Kapil was

unconscious and unfit for statement. Further, he had also recorded

the disclosure statements of Amarnath ExPW8/B and 8/C of

Nikkey in pursuance of which he was led inside the house and

shown the dandas, which were therein taken into possession. PW

9 further stated that he would be able to identify the said weapon, if

shown to him.

10. Section 308 IPC provides for punishment in cases of attempt

to commit culpable homicide. It provides that whoever does any

act with such intention or knowledge and under such circumstances

that if he by the act caused death, he would be guilty of culpable

homicide not amounting to murder whereas Section 323 IPC

provides for punishment for voluntarily causing hurt.

11. In this regard, reliance is placed on the pronouncement of the

Hon'ble Supreme Court in which it was held as under:-

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built- in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.

"Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P., Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of

Darshan Singh (PW 4) has rightly been relied upon by the courts below.

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

[Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259]]

12. To the similar effect is the judgment of the Hon'ble Supreme

Court in which it was held as under:-

"14. Both the injured were subjected to lengthy cross examination. Despite that nothing material could be elicited to discredit their testimony. There can be no dispute about their presence at the spot as they were the victims and had sustained injuries. Despite lengthy cross examination, they stood the test of cross examination and nothing could be elicited to show that the incident had not taken place in the manner projected by them or that they had not received injuries at the hands of the accused. The FIR in this case was recorded without any undue delay. According to the injured, the incident had taken place at about 12.15. p.m. Both the injured were examined at the hospital at about 12.45/1.00 p.m. The Investigating Officer had come to know about the incident and had initially gone to the spot from where he came to know that injured had been removed to hospital. Therefore, he went

to hospital and recorded the statement of injured Rakesh Yadav and thereafter got the case registered against the accused at about 3.05 p.m. This reflects that there was no delay in lodging the FIR which rules out the possibility of their false implication. That being so, there is absolutely no reason as to why the victims would allow the real culprits to go scot free and to falsely name the accused in this case."

[Mano Dutt and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226]

13. As per the testimony of injured/complainant (Kapil) PW 1,

on the day of incident when he along with his friend Surbuland

Khan reached in a narrow street near Gurdwara, both the appellants

met them. When they complained the appellants regarding teasing

of sister of Surbuland Khan, both the appellants started beating PW

1 with dandas which they were holding. He specifically stated that

both the appellants gave danda blows on his head and after

receiving injuries he became unconscious. Testimony of

complainant/injured is duly corroborated by another eye witness

Ramji Lal PW 2 who stated that on the date of incident, he saw that

there was a quarrel in a narrow street between the appellants and

complainant Kapil. PW 2 saw that both the appellants had used

sticks at the time of quarrel. PW 2 tried to intervened but he could

not save Kapil. He specifically stated that Kapil received injuries

on his head and blood was oozing out. During cross-examination,

PW 2 stated that he knew Kapil and both the appellants being the

residents of same locality. Kapil was alone and he was given

beatings by the appellants. He also stated that he reached the spot

when the quarrel was going on.

14. The testimony of the complainant/injured Kapil clearly

proves the case of the prosecution that on the date of incident, both

the appellants gave danda blows on his head. The testimony of

injured Kapil is duly corroborated by his MLC Exh.P/w 3/B which

shows that there was swelling over his right parietal region, bruises

on scalp and bleeding from right ear and nose which also

establishes that the danda blows given on the head of the injured

were so severe that the same could have caused his death. The

carrying of danda and giving their blows on the vital part of the

injured clearly proves the intention and knowledge of the accused

persons that they made an attempt to commit culpable homicide of

the injured. So the prosecution has duly established beyond

reasonable doubt that on the day of incident both the appellants

caused grievous injuries on the person of the injured Kapil and thus

made an attempt to commit his culpable homicide.

15. The above testimony of the injured Kapil which has duly

been corroborated by another eye witness of PW 2 Ramji Lal

inspire confidence. Though they were cross-examined at length by

the defence but the defence has failed to put any dent to their

testimony. Their testimony remained unshaken and unimpeachable

and the same was found to be reliable and trustworthy as held by

Hon'ble Apex Court in the case of Abdul Sayeed (supra) & Mano

Dutt (supra).

16. It is pertinent to mention here the pronouncement of the

Hon'ble Supreme Court in which it was held that to make an

offence under Section 308 IPC, the nature of injury is not

conclusive. The relevant portion of the Sunil Kumar (supra) is

reproduced hereinbelow:-

"4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC.

Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the

second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law."

[Sunil Kumar Vs. NCT of Delhi & Ors., (1998) 8 SCC 557]

17. Statement of PW 4 Dr.Amitabh Singh of SDN Hospital was

also recorded who medically examined the complainant Kapil on

14th June, 1998 and referred him to surgeon for further

examination. PW 3 Dr.D. Chatterjee has stated that on

14.06.1998, patient Kapil was referred to him for further

management. He examined the patient and found the head injury

as mentioned in the MLC and other things. He referred the patient

to RML Hospital as facility was not available in SDN Hospital to

look after the patient of head injury. PW 11 Dr. Sharmila provided

the X-Ray report as PW 11/A. The X-Ray report was examined by

her on 13th June, 1998 itself and found fracture on right temporo

parietal bone in the skull. PW 10 Dr.Chaitanya Sharma on the

MLC which is Ex.3/B and in his statement deposed that on 14th

June, 1998, the complainant Kapil was admitted in LNJP Hospital

and that the injuries & X-ray report shows that the fracture on the

right temporo parietal bone of the complainant Kapil clearly

reflects that the injury was grievous in nature as per endorsement

Ex PW 10/A on MLC which is Exh.PW 3/B.

18. The discussion made above apparently shows that the injured

Kapil is trustworthy who suffered head injury which was found to

be grievous in nature as per his MLC Exhibit PW 3/B and brings

the case of the prosecution within the four corners of the alleged

commission of offence which culminated into the conviction of the

convicts/appellants. This court is of the considered opinion that

the prosecution has successfully proved the guilt of the appellants.

19. As a result, no error or illegality is found in the view taken

by the Trial Court in the judgment of conviction dated 18th August,

2001 and same needs to be upheld.

20. The arguments advanced by the counsel for the appellants

that the offence committed by the appellants falls under Section

323 IPC rather than Section 308 IPC, does not find any substance

particularly keeping in view the judgment of the Supreme Court in

the case of Sunil Kumar (supra) and the nature of injury which is

shown to be "grievous" having fracture on the head and deserves to

be turned down.

21. The submission made by counsel for the appellants is that the

learned Trial Judge awarded the sentence on the higher side and

claims the reduction/modification in the sentence. In view of the

facts and circumstances stated above, the injury caused is the

fracture on the head and termed as "grievous" as per the MLC

Exh.PW 3/B. In such circumstances, the sentence awarded cannot

be said on the higher side and no case is made out for the

reduction/modifying the sentence awarded vide order on sentence

dated 20th August, 2001 and the same is upheld.

22. Section 319 IPC defines the term "hurt" whereas Section

320 IPC defines "grievous hurt". The fracture on the skull is

grievous hurt and cannot be termed as simple hurt.

A person causing fracture on skull cannot term the hurt as

simple hurt as per the settled law.

23. In totality of the discussion made above, no fault or error

could be found in the judgment dated 18th August, 2001 convicting

the appellants and the order on sentence dated 20th August, 2001.

Resultantly, the present appeal is dismissed.

24. The surety bonds and personal bonds of the appellants are

forfeited. The convicts/appellants are directed to surrender before

the trial court concerned within a period of fifteen days from the

date of judgment.

(P.S.TEJI) JUDGE NOVEMBER 30, 2016 aa