Delhi High Court
Baney Singh & Ors. vs State on 9 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 7, 2016
% Judgment Delivered on: September 09, 2016
+ CRL.A. 446/2001
BANEY SINGH & ORS. ..... Appellant
Represented by: Mr. Brijesh Sharma, Mr. J.P.
Singh and Mr. Akash,
Advocates.
versus
STATE ..... Respondent
Represented by: Mr. Ravi Nayak, APP for the
State with SI Baldev Raj, PS
Okhla Industrial Area.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. By the present appeal the appellants Baney Singh, Amar Singh,
Harpyari, Hirdaya Ram and Bishan Swaroop challenged the impugned
judgment dated 22nd May, 2001 convicting them for the offences punishable
under Sections 323/354 read with Section 34 IPC in FIR No. 268/1998
registered at PS Okhla Industrial Area and the order on sentence dated 23rd
May, 2001 directing them to undergo simple imprisonment for a period of
one year and to pay a fine of `1,000 for the offence punishable under
Sections 323 IPC and simple imprisonment for a period of two years and to
pay a fine of `1,000/- for the offence punishable under Section 354 IPC.
Since appellant no. 1 Baney Singh passed away on 15th October, 2006 and
appellant no. 3 Harpyari passed away on 24th September, 2013, the appeal
qua them stands abated and this Court is now concerned with appellant no. 2
Amar Singh, appellant no. 4 Hirdaya Ram and appellant no. 5 Bishan
Swaroop.
2. Learned Counsel for the appellants contends that since no specific
role was assigned to the abovementioned three appellants, the case under
Sections 323/354 is not made out against them. It is also contended that
there were glaring contradictions in the statement of PW-1, Phool Singh and
his wife PW-2 Basanti.
3. Per contra learned APP for the State contends that even though no
specific allegation was made against the appellants, however they have been
named in the FIR and the statement of the witnesses. The three appellants
were involved with Baney Singh and Harpyari in the commission of offence,
thus Section 34 IPC is attracted.
4. The brief facts of prosecution case are that on 22nd April, 1998, PW-1,
Phool Singh stated before the police that he works as a gardener. Amar
Singh, Baney Singh, Hirdaya Ram and Bishan Swaroop resided in the
neighbourhood whom he knew well. On 30th January, 1998, when he was
talking to Mangu Ram about some money transaction, Harpyari, wife of
Baney Singh, came and stated that PW-1 was a dishonest person as a result
of which there was an altercation between the two and Phool Singh went
back to his home. On the same night, Hirdaya Ram, Baney Singh, Amar
Singh and Bishan Swaroop consumed liquor in the evening and started
abusing him and also threatened to kill him. The same was reported to the
police. On 16th February, 1998, when he returned home around 4:00 P.M.,
he heard some noise and saw that Harpyari was grappling with his wife
Basanti, PW-2. On seeing PW-1, Hirdaya Ram, Baney Singh, Amar Singh
and Bishan Swaroop who were standing there started molesting his wife and
pressed the breasts and cheeks of his wife. When PW-1 objected, all four of
them left his wife and started beating him. In the meantime, Harpyari gave
an iron rod to Baney Singh who hit Phool Singh on his head with the rod
and Phool Singh became unconscious. When he regained consciousness, he
informed the police, PCR van came and took him to AIIMS hospital. On the
basis of this statement of Phool Singh, FIR No. 268/1998 was registered
under Sections 305/343/354/506/34 IPC. During the course of investigation,
Baney Singh and Hirday Ram were arrested on 23rd April, 1998, Bishan
Swaroop was arrested on 4th May, 1998 and Amar Singh and Harpyari were
arrested on 26th May, 1998.
5. PW-1, Phool Singh deposed before the Court in sync with his
statement made before the police. He stated that his statement Ex. PW-1/A
was recorded by the police pursuant to the direction of the court dated 22nd
April, 1998. During his cross-examination, he denied the suggestion that
Amar Singh was not present at the place of incident when the fight took
place. He also stated that Hirday Singh was not present and was on duty.
6. PW-2, Basanti, wife of Phool Singh, deposed that on 16th February,
1998, at about 4:00 PM she had gone to fetch water where Harpyari was
washing clothes. Harpyari threw her bucket and started abusing PW-2. In the
meantime, Baney Singh, Amar Singh, Hirdaya Ram and Bishan Swaroop
came and started grappling with her. Baney Singh touched her cheeks and
breast and other appellants were grappling with her. Thereafter, Harpyari
gave an iron rod to Baney Singh who gave blows to Phool Singh and he
received head injuries.
7. PW-6, Dr. Millo Tabin, AIIMS Hospital exhibited the MLC of Phool
Singh Ex.PW-6/A which was prepared by Dr. Shivali which noted the
following injuries:-
Irregular laceration present on right partial area.
Fresh bleeding present and abrasion on both knuckles.
Injury was simple caused by blunt object.
8. From the perusal of the evidence, it is evident that the appellants have
not been assigned any specific role by PW-2, Basanti the victim in this case,
with regard to molestation except grappling which was also not stated to be
with intention to outrage her modesty. As far as the offence under Section
323 IPC is concerned, the iron rod was given by Harpyari to Baney Singh to
hit PW-1, Phool Singh. No overt act has been attributed to the
abovementioned three appellants on this count nor is there any evidence to
come to the conclusion that all the five accused came with the common
intention to beat Phool Singh who was not even present at the spot initially
and came later. Since Harpyari and Baney Singh have passed away, the
offences punishable under Sections 323/354 IPC are not attributable to the
abovenoted three appellants and Section 34 IPC is also not attracted in the
present case because there was no common intention among the appellants,
the appellants Amar Singh, Hirdaya Ram and Bishan Swaroop are entitled to
be acquitted.
9. The appellant No. 2, 4 and 5 are acquitted of the charges for offences
punishable under Section 323/354/34 IPC. They are in custody pursuant to
non-bailable warrants issued against them vide order dated 17 th August,
2016. The Superintendent, Tihar Jail will release the appellants Nos. 2, 4
and 5 forthwith if not required in any other case.
10. Appeal is disposed of.
11. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
12. TCR be returned.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 09, 2016/'vn'
