Pramod vs State
2022 Latest Caselaw 106 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Reserved on: 21st December, 2021
                                     Decided on: 11th January, 2022
+                  CRL.A. 48/2020

       PRAMOD                                          ..... Appellant
                   Represented by:   Mr. Kanhaiya Singhal, Mr. Udit
                                     Bakshi, Mr. Prasanna, Mr. Rishabh
                                     Jain, Mr. Chetan Bhardwaj, Ms.
                                     Heena Tangri and Mr. Ajay Kumar,
                                     Advs.
                         versus

       STATE                                          ..... Respondent

Represented by: Mr. Amit Gupta, APP for State. CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this appeal the appellant challenges the judgment and order on sentence dated 1st September, 2016 whereby the appellant was convicted for offences punishable under Sections 186/333/34 IPC and awarded sentence of rigorous imprisonment for a period of 10 years for offence punishable under Section 333/34 IPC and to pay a fine of ₹10,000/- in default whereof to undergo simple imprisonment for a period of 2 years and rigorous imprisonment for a period of 3 months for offence punishable under Section 186/34 IPC.

2. The sentence of the appellant was suspended by this Court vide order dated 17th January, 2020 as he had already undergone incarceration of a period of 5 years, 7 months, 3 days as on 27 th December, 2019 and earned a remission of 1 year, 2 months, 3 days. However, the appellant could not

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Signing Date:11.01.2022 21:43:21 furnish the surety bond and hence vide order dated 20th May, 2020 he was directed to be released on cash surety for ₹10,000/- subject to his residential address being verified by the concerned authorities which surety was also not furnished. As his residential address could not be verified, this Court directed the concerned authorities to expeditiously conduct the same. However, since the appellant could not be released and thus on a letter dated 18th November, 2021 received from the Director General (Prisons) Headquarters that the appellant is still in custody his appeal has been taken up for hearing. As per the latest nominal roll the unexpired portion of the appellant's sentence is 8 months, 23 days as on 13 th December, 2021 and if fine is paid in default whereof he has to undergo 2 years simple imprisonment.

3. Learned counsel for the appellant contends that though the prosecution examined Constable Kulvir who was the victim, however failed to examine Head Constable Vijay Pal who was accompanying him. The fact that Constable Kulvir received grievous injury has not been proved by the MLC and thus the appellant cannot be convicted for offence punishable under Section 333 IPC and at best only for offence punishable under Section 332 IPC for which the maximum sentence of 3 years imprisonment can be awarded. Learned counsel for the appellant further contends that there are inherent contradictions in the testimony of the victim and the appellant be thus acquitted or in the alternative be released on the period already undergone.

4. Learned APP for the State submits that non-examination of H.C. Vijay Pal would not belie the version of Constable Kulvir who is an injured victim. The prosecution has proved beyond reasonable doubt that Ct. Kulvir

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Signing Date:11.01.2022 21:43:21 received grievous hurt and his hearing was impaired due to which he was prescribed hearing aid and was declared unfit for service. The offence committed by the appellant is grievous in nature and his conduct in the jail is also not satisfactory as he has received punishments in the year 2019 and 2020.

5. The prosecution case was initiated on a receipt of DD No. 47-A on 24th May, 2014 informing that near Police picket, G.B. Road, near Railway gate, one person in drunken condition has given a blow with razor to a Police official. ASI Surender Singh along with Constable Hari Ram reached the spot and found that Ct. Kulvir Singh of Railway Protection Force (in short RPF) was taken to LNJP Hospital. At the hospital statement of Ct. Kulvir Singh was recorded who stated that he was posted at Police Post, Lahori Gate of RPF and on 24th May, 2014 he was on duty from 4.00 PM to 12.00 mid-night in the area. At about 10.45 PM when he reached the North Yard of the Railway opposite platform 10 and 11 near Sheela Cinema bridge at the service road, which is not a public place, and public is not allowed so as to avoid theft of railway property, he saw 2 - 3 boys sitting there. When he asked the boys to go away they did not go away. When he touched one of them and asked them to go, he started abusing him, grappled with him and took out a razor (ustra) and gave a blow on his left hand wrist at two places, due to which bleeding started. The complainant snatched the razor from him whereafter that boy and his associates started pelting stones on him. The person who gave the blow with the razor was named Pramod whom he knew from before and he could identify Pramod and his associates. Based on the statement FIR was registered. Statement of an eye-witness Pankaj was also recorded and at the instance of Pankaj appellant was arrested on 25 th May,

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Signing Date:11.01.2022 21:43:21 2014. As per the Doctor the injury was grievous in nature and thus Section 333 IPC was added.

6. In his deposition before the Court Ct. Kulvir Singh who appeared as PW-1 reiterated his statement and identified his clothes which were blood- stained and seized. He further stated that due to head injury sustained by him, he developed hearing problem and his treatment was still going on and as the complainant was declared unfit for service he was deputed to some other railway service. In his cross-examination nothing material could be elicited except as to further investigation carried out after the date of incident and whether his further statement was recorded or not. The complainant reiterated that the appellant is a drug addict, often seen in the area of railway station and he denied the suggestion that the appellant has been falsely implicated.

7. Pankaj the eye-witness was examined as PW-2 who stated that he was present at the spot on the intervening night of 24 and 25th May, 2014. At about 10.45 PM many other persons were also sitting there besides the appellant. In the meantime Ct. Kulvir of RPF came and asked all the persons who were sitting there to go away from that place but nobody paid heed to his direction. When Ct. Kulvir tried to remove the appellant by catching hold of his hand, the appellant grappled with him and assaulted him with an ustra on his shoulder. The complainant took away the razor from the appellant and the appellant picked up a stone and assaulted the complainant. Eye-witness stated that he used to pick empty bottles from the area of New Delhi Railway Station for the last two and a half years and had no permanent address in Delhi and used to sleep in the area of New Delhi Railway Station. He knew Pramod one month after he came to Delhi.

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8. Thus, from the testimony of the injured victim and the eye-witness the fact that the appellant assaulted the complainant first with an razor and then with a brick stands proved beyond reasonable doubt.

9. Contention of learned counsel for the appellant is that the prosecution has not proved that the complainant received grievous injury. Dr. Rajinder deposed as PW-7 who examined the complainant in the first instance and was the CMO at Lok Nayak Hospital on 24th May, 2013 and had prepared the MLC Ex.PW-7/A. He stated that he had referred the patient to plastic surgery emergency and neurosurgery emergency. Dr. Rahul, Senior Resident, Neurosurgery Lok Nayak Hospital was examined as PW-12 who stated that he had examined the complainant Kulvir Singh and opined the nature of injuries sustained by the victim as grievous vide endorsement Ex.PW-12/A. The only cross-examination put to this witness is that he had given the opinion at the instance of Police which he denied.

10. In his statement under Section 313 Cr.P.C. the appellant was clearly put that the nature of injury has been opined to be grievous vide the document Ex.PW-12/A to which he answered, "I do not know". The plea of the appellant was that he was innocent and falsely implicated. However, he did not lead any defence evidence. As per the MLC the complainant received two incised wounds on the left forearm and a mild traumatic swelling on the left side forehead. The study of the CT Scan of the head of the complainant reveals there is communited depressed fracture of anterior wall of frontal sinus.

11. In view of the fracture on the frontal bone involving anterior wall of frontal sinus it is evident that the complainant received a grievous injury and the record further shows that he suffered hearing impairment and was thus

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Signing Date:11.01.2022 21:43:21 declared unfit in medical category Aye and Bee permanently and fit in medical category Cey-one and Cey-two with hearing aid vide Ex.PW-1/E.

12. Considering the nature of injury received by the complainant the offences punishable under Section 186/333/34 IPC stands probed beyond reasonable doubt. As regards order on sentence is concerned, as noted above the appellant has been awarded 10 years rigorous imprisonment with fine of ₹10,000/- in default whereof to undergo 2 years simple imprisonment for offence punishable under Section 333/34 IPC i.e. the maximum sentence that can be awarded under Section 333 IPC. Further, the sentence in default of payment of fine of ₹10,000/- awarded being 2 years simple imprisonment is also highly excessive. Considering the weapon of offence used and that the offence was not committed in a pre-meditated manner but on the spur of the moment, this Court deems it fit to modify the sentence of the appellant to the period already undergone.

13. Appeal is consequently disposed of upholding the conviction of the appellant for offences punishable under Section 186/34 IPC and 333/34 IPC and modifying the sentence to the period already undergone.

14. Copy of the judgment be uploaded on the website and be sent by the Registry to the Superintendent Tihar Jail for updation of records and intimation to the appellant as also to release the appellant forthwith if not required in any other case.

(MUKTA GUPTA) JUDGE JANUARY 11, 2022 'ga'

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Signing Date:11.01.2022 21:43:21