Vipin Kumar @Billa vs State
2023 Latest Caselaw 2347 Del

$~1 & 2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Decided on: 26th May, 2023
+      CRL.A. 305/2022
       VIPIN KUMAR @BILLA                            ..... Appellant
                             Through:   Mr. Parminder Singh and
                                        Mr. Karan Vir Singh,
                                        Advocates with appellant in
                                        person.
                             V

       STATE                                       ..... Respondent
                             Through:   Mr. Hemant Mehla, APP for
                                        State with SI Bhom Singh,
                                        P.S. Moti Nagar.
                                        Mr. Akshay Verma,
                                        Advocate for Complainant
                                        with complainant in person.
+      CRL.A. 315/2022
       GAURAV @ RAHUL                                ..... Appellant
                             Through:   Mr. Ashwani Chowdhary,
                                        Mr. Anil Chowdhary and
                                        Mr. Tanmay Mishra,
                                        Advocates with appellant in
                                        person.
                             V

       THE STATE (GOVT OF NCT OF DELHI)..... Respondent
                             Through:   Mr. Hemant Mehla, APP for
                                        State with SI Bhom Singh,
                                        P.S. Moti Nagar.
                                        Mr. Akshay Verma,
                                        Advocate for Complainant
                                        with complainant in person.



CRL.A. 305/2022 & 315/2022                                      Page 1
 %
CORAM
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT (oral)

1. This common judgment shall decide two criminal appeals

bearing no.305/2022 and 315/2022 filed under section 374(2) of the

Code of Criminal Procedure, 1973 (hereinafter referred to as the

"Cr.P.C.") to impugn the judgment dated 02.05.2022 and order on

sentence dated 07.06.2022 passed by the Court of Shri Pooran Chand,

Additional Sessions Judge-02 (West), Delhi (hereinafter referred to

as the "trial court") in Sessions Case no. 57404/2016 arising out of

FIR bearing no.0218/2009 registered at P.S. Moti Nagar under

sections 324/34 of the Indian Penal Code, 1860 (hereinafter referred

to as the "IPC").

2. Briefly stated, the relevant facts are that Head Constable

Bijender on 20.09.2009, after receipt of DD no. 3A, reached at DDU

Hospital, where the complainant Rakesh Chhabra was found to be

treated in operation theatre vide MLC no.19158/2009 and no

eyewitness was found there. The MLC was kept pending for opinion

and subsequently, the concerned doctor opined the injuries as

dangerous. However, statement of the complainant/injured could not

CRL.A. 305/2022 & 315/2022 Page 2 be recorded as he was unconscious due to medication. After the

complainant/injured regained consciousness, his statement was

recorded at the hospital by HC Bijender. Thereafter, HC Bijender

prepared rukka on the basis of the statement of the

complainant/injured and FIR bearing no.0218/2009 dated 20.09.2009

was got registered under section 324/34 IPC at P.S. Moti Nagar.

Both the accused (hereinafter referred to as the "appellants") were

arrested and released on bail. The weapon of offence could not be

recovered. Since the nature of injuries was opined by the concerned

doctor as dangerous, the offence punishable under section 326 IPC

was also added. The appellants were searched after addition of

offence punishable under section 326 IPC by ASI Surat Singh, who

was afterwards entrusted with subsequent investigation. ASI Surat

Singh recorded the supplementary statement of the

complainant/injured and offence punishable under section 326 IPC

was converted to section 307 IPC. ASI Surat Singh completed other

formalities of the investigation and after completion of the

investigation, chargesheet was filed for the offence punishable under

sections 307/34 IPC. The case was committed to the Court of

CRL.A. 305/2022 & 315/2022 Page 3 Session. The charges for the offence punishable under sections

307/34 IPC were framed against both the appellants vide order dated

23.05.2013 to which, they pleaded not guilty and claimed the trial.

The prosecution examined 11 witnesses including the

complainant/injured Rakesh Chhabra as PW-2, Surender

[email protected] as PW-3, the Investigating Officer ASI Bijender Singh

as PW-4 and the concerned doctors as PW-7 and PW-14. After

completion of the prosecution evidence, the statement of the

appellants was recorded under section 313 Cr.P.C. wherein, they

pleaded innocence and denied all the incriminating evidence against

them. The appellants preferred not to lead defence evidence.

3. PW-2 the complainant/injured supported the case of the

prosecution and deposed that on 19.09.2009 at about 09.00 PM, he

along with Surender [email protected] i.e. PW-3, had gone to Priyanka

Tower, Basai, Dara Pur and at about 10.20 PM, he left Surender

[email protected] in front of Priyanka Tower. PW-2 the

complainant/injured was turning his car back, in the meantime, the

appellants accompanied by 2-3 persons came there and started to

abuse PW-2 the complainant/injured. The appellant Vipin

CRL.A. 305/2022 & 315/2022 Page 4 [email protected] stabbed in abdomen of the PW-2 the

complainant/injured while the appellant [email protected] stabbed in

head of the PW-2 the complainant/injured with a sharp object. PW-2

the complainant/injured was also given kicks and fist blows by the

associates of the appellants. PW-3 Surender [email protected] reached at

the spot after alarm being raised by PW-2 the complainant/injured.

The appellants ran away from the spot. PW-2 the

complainant/injured was removed to the hospital, where his statement

Ex.PW-2/A was recorded. PW-3 Surender [email protected] did not

support the case of the prosecution and the Additional Public

Prosecutor for the respondent/State was allowed to cross-examine the

PW-3 Surender [email protected] as he resiled from his previous

statement recorded under section 161 Cr.P.C. PW-4 ASI Bijender

Singh deposed regarding the investigation, which was being

conducted by him.

4. The trial court vide judgment dated 02.05.2022, convicted the

appellants for the offence punishable under sections 307/34 IPC. The

trial court relied upon the testimony of PW-2 the complainant/injured

and on the part testimony of PW-3 Surender [email protected] to

CRL.A. 305/2022 & 315/2022 Page 5 corroborate the testimony of PW-2 the complainant/injured. The trial

court was not in agreement with the arguments advanced on behalf of

the appellants. The trial court also believed that as per the testimony

of PW-7 Dr. P.S. Sarangi, the nature of injuries stated to be received

by PW-2 the complainant/injured was dangerous and was inflicted on

the vital parts of the body i.e. the abdomen and the head.

Accordingly, on the basis of the evidence and other material brought

on record by the prosecution, the appellants were convicted for the

offence punishable under sections 307/34 IPC vide impugned

judgment dated 02.05.2022.

5. The trial court vide order on the sentence dated 07.06.2022,

sentenced the appellants to undergo rigorous imprisonment of

four(04) years for the offence punishable under sections 307/34 IPC

and each of the appellants was also directed to pay a fine of

Rs.20,000/- in default of RI for three (03) months. The trial court also

directed that out of the said fine of Rs.20,000/-, Rs.18,000/- shall be

paid as compensation to PW-2 the complainant/injured.

6. The appellants being aggrieved by the impugned judgment

dated 02.05.2022 and order and sentence dated 07.06.2022, filed the

CRL.A. 305/2022 & 315/2022 Page 6 present appeal under section 374(2) Cr.P.C on the grounds that the

trial court has erred in holding that the appellants were having the

common intention to commit the offence punishable under section

307 IPC. The trial court did not appreciate the contradiction in the

respective testimony of PW-2 the complainant/injured and PW-3

Surender [email protected] The weapon of offence was not recovered

during the investigation, as such, the appellants cannot be linked

and/or connected to the alleged offence. The trial court has erred by

relying on the testimony of PW-2 the complainant/injured and PW-3

Surender [email protected] It was prayed that the appeals be allowed

and the appellants be acquitted from the offence punishable under

sections 307/34 IPC.

7. The respective counsel for the appellants argued on the issues

as mentioned in the appeals and further argued that the appellants be

acquitted as the prosecution has failed to prove its case beyond

reasonable doubt.

8. The Additional Public Prosecutor for the respondent/State

assisted by the counsel for the complainant argued that the trial court

has rightly relied upon the testimony of PW-2 the

CRL.A. 305/2022 & 315/2022 Page 7 complainant/injured, which was partly corroborated by the testimony

of PW-3 Surender [email protected] Even if the weapon of the offence is

not recovered during the investigation, it is not fatal to the case of the

prosecution and the contradiction as pointed out by the respective

counsel for the appellants during the course of arguments are minor

and irrelevant in nature, which hardly affects the case of the

prosecution. The Additional Public Prosecutor for the

respondent/State argued that the appeals deserve to be dismissed.

9. The perusal of impugned judgment reflects that the trial court

has rightly relied upon the testimony of PW-2 the

complainant/injured, which proved that the appellants on 19.09.2009

had inflicted injuries on him, which were subsequently opined to be

dangerous by PW-7 Dr. P.S. Sarangi and the injuries were inflicted

on the vital parts of the body. There is no reason to disbelieve the

testimony of PW-2 the complainant/injured, which is consistent and

free from any material contradiction. The testimony of PW-2 the

complainant/injured, which is partly supported by the testimony of

PW-3 Surender [email protected], can be safely relied upon. The

impugned judgment is well reasoned and was passed after due

CRL.A. 305/2022 & 315/2022 Page 8 appreciation of the facts and laws as brought on record. There is no

reason to interfere with the conviction as awarded by the impugned

judgment.

10. The respective counsel for the appellants stated that vide order

on sentence dated 07.06.2022, the appellants were sentenced to RI for

a period of four (04) years for the offence punishable under sections

307/34 IPC besides payment of fine of Rs.20,000/- in default to

further undergo RI for a period of three (03) months. It was also

ordered that out of the fine of Rs.20,000/-, Rs.18,000/- to be paid as

compensation to PW-2 the complainant/injured. The counsel for the

appellant [email protected] stated that the appellant [email protected]

has already paid the fine of Rs.20,000/- vide receipt bearing no.

0773994 dated 04.07.2022, a copy of which is also placed on record.

The appellant Vipin [email protected] has not paid the said fine.

Accordingly, he is directed to deposit the fine of Rs.20,000/- before

the concerned trial court within a period of 15 days from today.

11. The respective counsels for the appellants argued that the

appellants have never been convicted of any offence and their

antecedents are clear. They further stated that the appellants be given

CRL.A. 305/2022 & 315/2022 Page 9 another chance to reform themselves so that they can be a part of the

mainstream society. The counsel for the appellant [email protected]

stated that he was aged about 22 years at the time of the incident and

was unmarried but now he is married and has a minor child, who is

less than 10 years of age. The appellant [email protected] is the only

bread earner in the family and his father had already expired in the

year 2011. The appellant [email protected] has to look after his

grandmother, who is more than 85 years of age and is suffering from

various ailments. The appellant [email protected] has also suffered the

agony of trial for 13 years. The counsel for the appellant Vipin

[email protected] stated that he belongs to the lower strata of the society

and his mother has already died due to Cancer. The appellant Vipin

[email protected] has two minor children and his father is diabetic and is

suffering from various ailments. The appellant Vipin [email protected]

also suffered the agony of trial for 13 years. In these circumstances,

the respective counsel for the appellants prayed for a lenient view and

cited Murali V State, Represented by Inspector of Police, (2021)

1 SCC 726 and in light of the said judgment, they prayed that the

appellants be sentenced to the period of imprisonment already

CRL.A. 305/2022 & 315/2022 Page 10 undergone. The appellants also stated that they are ready to pay

Rs.4,50,000/- to the complainant/injured, who is present in the court,

as compensation for the losses suffered by him.

12. The Additional Public Prosecutor for the respondent/State also

stated that although the appellants do not deserve any leniency from

this court but they are ready to pay Rs.4,50,000/- as compensation to

the complainant, which is acceptable to the complainant as such, the

court may pass any direction in its discretion.

13. The complainant/injured stated that he received the injuries on

vital parts of his body and remained under treatment for considerable

time but now, he has fully recovered from the injuries inflicted by the

appellants. He further stated that he is ready to accept the

compensation of Rs.4,50,000/- as proposed by the appellants towards

the losses suffered by him and he does not have any objection if the

appellants are given another chance to reform themselves. The

appellants are not previous convicts and their antecedents are clear.

The appellants belong to the lower strata of the society and have to

maintain their respective families along with elders in the family. The

appellants suffered agony of trial for 13 years. The appellants have

CRL.A. 305/2022 & 315/2022 Page 11 already suffered imprisonment for about 230 days. The appellants

have paid Rs.4,50,000/- jointly to the complainant/injured by way of

demand draft bearing no.879196 dated 25.05.2023 drawn on Karur

Vysya Bank which is accepted by the complainant/injured.

14. After considering the socio-economic position of the

appellants and that they have suitably compensated PW-2 the

complainant/injured for the losses suffered by him, the order on

sentence dated 07.06.2022 is modified to the extent that the

appellants are sentenced to imprisonment for the period they have

already undergone besides fine imposed by the trial court vide order

dated 07.06.2022.

15. In addition to the compensation of Rs.4,50,000/- paid by the

appellants, the PW-2 complainant/injured shall also be entitled to the

compensation as awarded by the trial court vide order on sentence

dated 07.06.2022. The trial court is directed to release the

compensation in terms of the order on sentence dated 07.06.2022

without any delay.

CRL.A. 305/2022 & 315/2022 Page 12

16. The present appeals, along with pending applications, if any,

stand disposed of.

SUDHIR KUMAR JAIN, J.

MAY 26, 2023
N/SW




CRL.A. 305/2022 & 315/2022                                    Page 13