Rahat Ali vs State Of Nct Delhi & Anr.
2017 Latest Caselaw 2336 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                       +          CRL.A. No.558/2001

                                     Date of Decision : 11TH MAY, 2017

          RAHAT ALI                                  ..... APPELLANT
                           Through         Mr.M.L. Yadav, Adv.

                           Versus

      STATE OF NCT DELHI & ANR.         ..... RESPONDENT

Through Mr.Punna Lal Sharma, Additional Public Prosecutor for the State.

CORAM:

HON'BLE MR. JUSTICE P.S.TEJI P.S.TEJI, J

1. Aggrieved by the judgment of conviction dated

11th June, 2001 convicting the appellant finding him guilty under

Sections 308 & 323 of the Indian Penal Code (IPC) and order on

sentence dated 12th July, 2001, sentencing him to rigorous

imprisonment for one year and to pay fine of Rs.5,000/-, in default

of fine, to further undergo rigorous imprisonment for two months

while extending the benefit of Section 428 Cr.P.C., the present

appeal has been filed.

2. The facts giving rise to the present appeal are within the

narrow compass. It emerges from the record that an electric motor

belonging to Khalid, a builder, had been stolen upon which Rahat

Ali, the appellant herein, and the two accused went to one Ganga in

order to make enquiries. Thereafter, Ganga and Gaurav were taken

to the roof of Mughal Arts Building, Zakir Nagar, Nafis Lane

where they were enquired by the accused. Ganga & Gaurav did

not disclose anything upon which they were not only assaulted but

were given electric shocks. The appellant Rahat Ali gave a slap

blow to Ganga upon which he lost his balance and fell from the

roof of the third floor as a result of which he sustained injuries.

Thereafter, both Ganga and Gaurav were taken to the hospital

wherein the X-Ray report showed that Ganga was found to have

fractured his femur shaft and left wrist and the injuries were

declared as grievous in nature. It transpires that an intimation to

the police control room was given to the effect that Khalid had

captured a thief near house no.82/1, Zakir Nagar, which was

recorded in DD No.27 pursuant whereto, statement of Ganga was

recorded and FIR was registered and after completion of

investigation, the accused persons were arrested.

3. The appellant was held guilty by the learned Additional

Sessions Judge, New Delhi and by an order dated 12th July, 2001,

sentenced to undergo rigorous imprisonment for a period of one

year and also to pay fine of Rs.500/-, in default further RI for two

months for his conviction under Section 308/323/34 of the IPC.

The benefit of Section 428 of the Cr.P.C. was given to the

appellant.

4. The main grounds of challenge are that there was no

corroboration to the evidence adduced by the prosecution in the

trial of the case and that the conviction was solely based upon

uncorroborated evidence of PW 1 Ganga Kumar Sharma and PW 2

Gaurav Kumar Sharma. The fact that the intention being the first

and foremost ingredient, was absent. The fact that PW 2 Gaurav

Kumar Sharma did not depose regarding giving electric shock to

him and was contrary to the statement of PW 1 Ganga Kumar

Sharma, had not been considered. The fact that though eight-ten

persons were sleeping at the place where PWs 1 & 2 were also

sleeping, none of them had been interrogated or examined for the

purpose of ascertaining the true facts. The prosecution failed to

produce the weapon i.e. lathies as well as the clothes of PW 1 &

PW 2 stained with blood as had been deposed by PW 2 in cross-

examination. PW 7 who was the investigating officer, in his

deposition stated that there was no parapet wall on the roof of the

building while PW 1 & PW 2 have given the height of the parapet

wall as 2 ft. And 3 ft. respectively, which is contrary to the

deposition of PW 7. The deposition of PW 1 Ganga Kumar

Sharma is contrary to the report of MLC as well as the deposition

of the doctors. PCR officials were not produced by the

prosecution.

5. In support of his contention, learned counsel for the

appellant relies on Ramphool Vs. State 2001(93) DLT 366 in

which case the appellant who was released on bail about six years

6. Per contra, argument advanced by learned Additional Public

Prosecutor for the State is that the appellant was rightly held guilty

under Sections 308 & 323 of the IPC. It is submitted by him that

an intimation was received by the Police Control Room to the

effect that Khalid had captured a thief near House No.82/1, Zakir

Nagar, which information was flashed to PS Sriniwas Puri and

when intimation regarding admission of Ganga was given to the

police, SI Kanta Prasad Kukreti first went to the place of

occurrence and from there, to hospital and that statement of the

injured Ganga was recorded. It revealed from the complaint,

inquiry & investigation that the electric motor of Khalid was stolen

upon which Rahat Ali (appellant herein) suspected Ganga and

Gaurav. Thereafter, the accused Rahat Ali with the other two

accused namely Israr Hussain and Laik Ali, went to Ganga to make

enquiries upon which Ganga & Gaurav were taken to the roof

where they were assaulted and when Ganga was given a slap blow

by the accused Rahat Ali, Ganga lost his balance as a result of

which he fell from the roof of third floor and sustained grievous

injuries.

7. The nominal roll of the appellant has been called for which

reflects that as on 19th August, 1999, the appellant had undergone

incarceration of fifteen days. The appellant was released on bail

pursuant to the order dated 19th August, 1999 passed by Mr.N.K.

Goel, Additional Sessions Judge, Delhi.

8. The prosecution had examined as many as seven witnesses.

PW 1 Ganga Kumar Sharma in his statement stated that he

identified the accused Rahat Ali. However, this witness did not

identify the other persons. This witness further stated that the other

persons could be identified by PW 2 Gaurav Kumar Sharma who

could tell their names. PW 2 Gaurav Kumar Sharma in his

statement identified all the accused persons. PW 3 HC Krishan Pal

and PW 6 Ct.Randhir visited the place of occurrence. PW 3 sent

the injured to hospital. It also appears from the record that PW 4

Dr.D.N. Bhatnagar had proved the MLC (Ex.PW 5/A) of the

injured PW 1 Ganga Kumar Sharma. Since the doctor who

prepared the MLC was not available, PW 4 Dr.D.N. Bhatnagar was

deputed to prove the MLC. The report of X-Ray which was

prepared by Dr.Manish, was proved by PW 5 Dr.Dheeraj Gandhi.

PW 7 Inspector K.P. Kukreti who was the investigating officer,

corroborated and testified the statement of PW 1 Ganga Kumar

Sharma & PW 2 Gaurav Kumar Sharma.

9. Thus, it is clear from the testimonies of the witnesses,

particularly from the statement of PW 1 & PW 2; the complaint,

inquiries and report of the investigations that there arose a quarrel

over theft of electric motor. The accused including the appellant

herein, had not lodged any report of theft instead tried themselves

to solve the theft of motor. The allegation of the accused that there

was no motive, cannot be considered to be true inasmuch as there

was no reason for PWs 1 & 2 implicating the accused falsely and

that the injured Ganga Kumar Sharma would have suffered self

inflicting injuries. It is clear that the appellant Rahat Ali had given

electric shock to the Ganga Kumar Sharma. The appellant also

gave slaps to Ganga Kumar Sharma and Gaurav Kumar Sharma

and kept on assaulting Ganga as a result of which he came near the

edge of the roof i.e. at parapet wall (which was of two feet height)

and fell from the room resulting in fracture of femur shaft left and

left wrist. PW 7 Inspector K.P. Kukreti who was the investigating

officer, corroborated and testified the statement of PW 1 Ganga

Kumar Sharma & PW 2 Gaurav Kumar Sharma. It also reveals

from the records that PW 2 had admitted that the electric motor

belonged to Rahat Ali. It is clear that PW 3 HC Krishan Pal and

PW 6 Ct.Randhir visited the place of occurrence. PW 3 sent the

injured to hospital. It also appears from the record that PW 4

Dr.D.N. Bhatnagar had proved the MLC (Ex.PW 5/A) of the

injured PW 1 Ganga Kumar Sharma.

10. The act of the appellant would, thus, fall under Section 325

of the IPC, in causing grievous injury to the complainant and not

under Section 308 IPC for attempting to commit culpable

homicide.

11. The testimonies of PW 1 Ganga Kumar Sharma & PW 2

Gaurav Kumar Sharma have been duly corroborated by the

statement of other witnesses. Their testimonies coupled with the

report of the doctor, bring the accused within the four corners of

Section 325 of the IPC. All the above witnesses were cross-

examined at length but the defence failed to put any dent to their

testimony. The witnesses remained firm with regard to their

depositions.

12. Keeping in view the above scenario, the conviction of the

appellant is converted from Sections 308 & 323 IPC to Section 325

IPC. The appellant is directed to undergo rigorous imprisonment

for a period of one year and to pay fine of Rs.5,000/- under Section

325 IPC, in default of fine, to further undergo rigorous

imprisonment for two months while extending the benefit

of Section 428 Cr.P.C.

This appeal is disposed of in the above terms.

(P.S.TEJI) JUDGE MAY 11, 2017 aa