[Cites 37, Cited by 0]
Delhi High Court
Suraj @ Satish vs The State Gnct Of Delhi on 17 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11.03.2026
Judgment pronounced on: 17.03.2026
+ CRL.A. 399/2017
SURAJ @ SATISH .....Appellant
Through: Mr. Dushyant Kishan Kaul, Advocate
(Amicus Curiae).
Versus
THE STATE GNCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 374 of the Code of Criminal
Procedure, 1973 (the Cr.P.C.) has been filed by accused number 1
(A1), in Sessions Case No. 1511/2016 on the file of Additional
Sessions Judge, South East District, Saket Courts, Delhi, assailing
the judgment dated 21.03.2017 and order on sentence dated
24.03.2017 as per which he has been convicted for the offence
punishable under Section 324 read with Section 34 of the Indian
Penal Code, 1860 (the IPC).
2. The prosecution case is that on 01.03.2013 at about
7:45 PM at Ali Fields Village, A1 and A2 voluntarily caused hurt
to PW2, by stabbing him with a knife and giving fist blows. A1
and A2 also committed robbery of one mobile phone and ₹5,000/-
from PW2.
3. On the basis of Ext. PW2/A FIS of PW2, given on
02.03.2013, Crime No. 79 of 2013, Sarita Vihar Police Station,
that is, Ext. PW1/A FIR was registered by PW1, Constable. PW12
conducted investigation into the crime and on completion of the
same, filed the charge-sheet/final report alleging commission of
the offences punishable under Sections 394, 397 and 34 IPC.
4. When the accused persons were produced before the
jurisdictional magistrate, all the copies of the prosecution records
were furnished to them as contemplated under Section 207 Cr.P.C.
Thereafter, the case was committed to the Court of Session. After
hearing both sides, the trial court, as per order dated 03.02.2014,
framed a Charge under Sections 392, 397 read with 34 IPC against
A1 and A2. Additionally, the trial court also framed a Charge
under Section 174A IPC against A2. The charge was read over and
explained to A1 and A2, to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to 15 were
examined and Exts. PW1//A, PW2/A-C, PW3/A, PW4/A, PW5/A-
H, PW6/A, PW7/A, PW9/A, PW10/A, PW11/A-C, PW12/A-E,
PW13/A-D, and PW15/A-D were marked in support of the
prosecution case.
6. On behalf of A2, DW1 was examined and Ext. DW1/A
was marked in support of the defence case.
7. After the close of the prosecution evidence, A1 and A2
were questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against them in the
evidence of the prosecution. They denied all those circumstances
and maintained their innocence, stating that they had been falsely
implicated in the present case as PW2 was having illicit relations
with A1's sister who is the wife of A2.
8. After questioning the accused persons under Section
313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was
mandatory. In the case on hand, no hearing as contemplated under
Section 232 Cr.P.C. is seen done by the trial court. However, non-
compliance of the said provision does not ipso facto vitiate the
proceedings unless omission to comply with the same is shown to
have resulted in serious and substantial prejudice to the accused
(see Moidu K. versus State of Kerala, 2009 (3) KHC 89; 2009
SCC OnLine Ker 2888). Here, appellant/A1 has no case that non-
compliance of Section 232 Cr.P.C. has caused any prejudice to
him.
9. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment dated 21.03.2017 found A1 and A2 guilty of offence
punishable under Section 324 read with 34 IPC. A2 has also been
found guilty of offence punishable under Section 174A IPC.
Accordingly, vide order on sentence dated 24.03.2017, A1 and A2
have been sentenced to rigorous imprisonment for a period of 03
years each along with fine of ₹1,500/-, for the offence punishable
under Section 324 read with 34 IPC, and in default of payment of
fine, to simple imprisonment for 02 months. A2 has also been
sentenced to rigorous imprisonment for a period of 03 years along
with fine of ₹1,500/-, for the offence punishable under Section
174A IPC, and in default of payment of fine, to simple
imprisonment for 02 months. Benefit under Section 428 Cr.P.C has
also been granted. Aggrieved, A1 has come up in appeal. The
registry reports that no appeal has been filed by A2 till date.
10. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the appellant/A1 by the trial court are sustainable or not.
11. The learned Amicus Curiae for the appellant submitted
that the accused persons and PW2 were known to each other and
there was a dispute inter se the parties. He submitted that the
testimony of DW1, wife of the appellant/A1 corroborates the fact
that there was an illicit relation between PW2 and the wife of A2
and that PW2 had threatened the accused persons. Therefore, A1
and A2 have instituted separate criminal proceedings against PW2.
He further submitted that the weapon of offence and the stolen
articles, i.e., PW2's mobile phone and cash of ₹5,000/-, was never
recovered/seized by the police at the instance of the accused.
11.1. Further, PW2, never disclosed to doctor about the
alleged incident or how the injuries were sustained or that his
belongings had been stolen. PW2 did not even inform the police. It
was the duty officer posted at the hospital, who reported the
matter. There is also inordinate delay in lodging the complaint.
The hospital where PW2 was treated was at least an hour away
from the scene of occurrence. There were several other hospitals
nearby where PW2 could have availed treatment. No reason(s) are
given as to why PW2 was taken for treatment to a far away
hospital. It was also pointed that the auto driver who is alleged to
have taken PW2 to the hospital was never examined. It was also
submitted that there are contradictions and inconsistencies in the
statements of PW5 and PW6. In support of the arguments, the
learned Amicus Curiae referred to the dictums in Wahid v. State
Government of NCT of Delhi, (2025) 3 SCC 341, Ravi Kumar
v. State [NCT of Delhi], 2024 SCC OnLine Del 9628 and State of
Maharashtra v. Ashok Marotirao Tekale, 2025 SCC OnLine
Bom 528.
12. On the other hand, it was submitted by the learned
Additional Public Prosecutor that there is no infirmity in the
impugned judgment calling for an interference by this Court. The
testimony of PW2 is corroborated by the medical evidence. The
materials on record is sufficient to convict the accused persons,
argued the prosecutor.
13. Heard both sides and perused the records.
14. I shall briefly refer to the evidence on record relied on
by the prosecution in support of the case. In Ext. PW2/A FIS/FIR
of PW2, recorded on 02.03.2013, it is stated thus: ".....On
01.03.2013 at 6:00 PM after finishing my office work I went to
meet someone in Ali Village. After getting off at the Ali Village
bus stand, I was walking towards the fields in Ali Village. As soon
as I entered the field through a broken wall, three boys stopped me.
One of them is named Prem Singh (A2), whom I have known for
about two years; he and two other boys stopped me. Prem Singh
took ₹5,000 which I had withdrawn from the ATM and my mobile
phone from my pocket. When I resisted, the two boys with Prem
Singh, one of whom was about 5'2" tall, of dusky complexion and
medium built, grabbed my left hand. The second person, who was
about 5'6" tall, dusky, and of thin build (whom Premsingh was
addressing as 'Chhotu'), grabbed my right hand. Premsingh pulled
out a knife from under his shirt and stabbed me 2-3 times in my
right thigh and also stabbed me in the back. The other two boys
with Prem Singh punched me on the face. I was injured. Prem
Singh and his two companions fled from the field towards the
road. I somehow managed to pull myself together, took an auto-
rickshaw to Mata Chanan Devi Hospital in Janakpuri, and with
someone's help at the hospital, I contacted Dilip, an acquaintance.
Dilip has admitted me to the hospital. Legal action should be taken
against Prem Singh and his two other associates whom I can
identify----."
15. PW2 when examined before the trial court on
07.03.2014 stands by his case in the FIS/FIR. He deposed that he
was employed as a peon at Foundation Company, 6 Institutional
Area, Katwariya Sarai. On March 1, 2013, after work at
approximately 6:00 pm, he proceeded to Ali Village. Upon
deboarding a bus and traveling on foot, he reached the vicinity of
the village by about 7:45 pm. While he was in a nearby park, three
persons apprehended him, one of whom was A2. One assailant
caught hold of him from behind while another gave him fist blows,
during which time A2 demanded money. A2 forcibly robbed him
of ₹5,000 and a Nokia mobile phone. A2 stabbed him thrice with a
knife on his thigh and once on his back, in addition to striking him
on the head with a belt. The other two persons gave him fist blows
on the face. Thereafter, the assailants fled the scene. He managed
to hail a three-seater auto rickshaw (TSR). He became
unconscious. He regained his senses at Mata Chanan Devi
Hospital. He informed the police of the incident the following
morning, resulting in the recording of Ex. PW2/A FIS/FIR. PW2
identified A1 and A2 during the trial. PW2 deposed that the
amount stolen from him had been withdrawn from his Axis Bank
account. The relevant bank statement has been marked as Ex.
PW2/C, which was seized vide memo Ex. PW2/B. His blood-
stained clothing had been seized by the police.
16. PW5, Police Constable, Sarita Vihar, Police Station
when examined before the trial court deposed that on 25.03.2013,
he had joined the investigation led by PW12, Sub Inspector
Yogendra Singh. On receiving secret information regarding the
whereabouts of A1 the police team proceeded to Meethapur,
Jaitpur, Tanki Road. At approximately 4:00 pm, acting on the
instance of a secret informer, they apprehended A1. PW5 correctly
identified A1 during the trial. Steps for conducting Test
Identification Parade (TIP) was initiated. But A1 refused to
participate in the same. PW5 further deposed that on 07.09.2013
he rejoined the investigation team which was led by PW6, Sub
Inspector Brahm Prakash. A2 was produced before the Saket
District Court, in connection with another case. According to PW5,
PW6 interrogated A2 after obtaining the necessary permission
from the court. Thereafter, A2 was formally arrested vide arrest
memo Ex. PW-5/E.
17. PW6, Sub Inspector, Sarita Vihar Police Station
deposed that on 25.03.2013 he joined the investigation team of
PW12. PW6 also deposed regarding the arrest of A1. PW6 also
identified A1 during the trial.
18. PW10, doctor, AIIMS, Mata Chanan Devi Hospital,
Delhi when examined deposed that she had seen Ex. PW10/A
MLC of PW2. She identified the signatures of Dr. Lalit Kumar,
who had prepared the MLC. According to PW10, Dr. Lalit Kumar
had left the service of the hospital. PW10 in her cross examination
deposed that she has no personal knowledge regarding the specific
facts of the case. She stated that since the injuries sustained by the
victim were recorded as "stab injuries," the weapon used by the
offender would have been a sharp object.
19. PW12, Sub Inspector, Sarita Vihar, Police Station when
examined before the trial court deposed that on the intervening
night of 01.03.2313-02.03.2013, he was on emergency duty. At
about 01:00 am, a call was received from the hospital regarding the
admission of PW2 at Mata Chanan Devi Hospital, Janakpuri.
Accompanied by PW3, Constable Bhajan Lal, he reached the
hospital, when he found PW2 under treatment. He collected the
MLC. The next day at about 08.00 AM, he recorded Ex. PW2/A
FIS/FIR. PW12 further spoke regarding the various steps taken
during investigation including the arresting of A1 and A2.
20. Now, coming to the defence evidence. DW1, the sister
of A2 and the wife of A1 deposed that when they were residing in
Uttam Nagar, PW2, the neighbour, used to come and meet Kavita,
wife of A2. PW2 and Kavita developed intimate relations. The
family members objected to the relationship, but Kavita did not
mend her ways and continued to meet PW2. Due to this illicit
relationship, the family shifted from Uttam Nagar to Badarpur,
Delhi. But the situation remained unchanged. A1 and A2 objected
to the relationship, due to which PW2 became angry and
threatened them. According to DW1, PW2 has falsely implicated
A1 and A2 in the present case. DW1 also deposed that Kavita now
lives with PW2.
21. Though the charge against A1 and A2 framed by the
trial court was for the offences punishable under Sections 392 and
397 read with Section 34, IPC, the trial court disbelieved the case
of robbery of the mobile phone and the amount of ₹5000/- from
PW2. After referring to the testimony of PW2 as well as the
testimony of DW1, the trial court in paragraph Nos. 20, 21 and 22
concluded thus:-
"20. Thus from the testimony of DW-l Smt. Mira, it is clear
that the complainant was having illicit relationship with the
wife of accused Prem Singh. Admittedly, the complainant is
resident of Balmiki Camp, Begumpur, Malviya Nagar, New
Delhi. He was working in Katwaria Sarai. He has not given
any reason as to for what reason, he was coming to the area
of Aali Village.
21. In the given facts and circumstances of the case, the
motive for giving beatings to complainant/injured does not
appear to be robbery. The motive may be to teach a lesson to
complainant so that he should not meet the wife of Prem
Singh. The possibility of committing robbery with
complainant by accused is not probable in the given factual
matrix of the case. The probability for false implication of
accused persons for the offences under section 394/397/34
IPC cannot be ruled out.
22. Admittedly, the complainant suffered grievous injuries in
the case. He has duly identified both the accused as the
persons, who are involved in the commission of offence in the
case. He identified accused Prem Singh as the person, who
assaulted him with knife and also gave fist blows and belt
blows to him. He also identified accused @ Satish as the
person, who caught hold of him from behind and also given
beatings to him. Therefore, in my view, prosecution has
succeeded to prove the offence punishable under section
324/34 IPC against both the accused; Accordingly, accused
Prem Singh and Satish @ Suraj are hereby held guilty and
convicted for committing the offence punishable under
section 324/34 IPC".
22. It is true that no charge under Section 324 IPC had been
framed by the trial court. However, Section 222(2) Cr.P.C. says
that when a person is charged with an offence and facts are proved
which reduce it to a minor offence, he may be convicted of the
minor offence, although he is not charged with it. There is no
reference to Section 222(2) Cr.PC in the impugned judgement.
But, apparently, it is on the strength of the same, the trial court,
convicted the accused persons for the offence under Section 324
IPC.
23. As noticed earlier the accused has been charged for the
offences punishable under Sections 394 and 397. Section 394 IPC
deals with voluntarily causing hurt in committing robbery. It says
that if any person, in committing or an attempting to commit
robbery, voluntarily causes hurt, such person, and any other person
jointly concerned in committing or attempting to commit such
robbery, shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to 10 years,
and shall also be liable to fine. Section 397 IPC deals with robbery,
or dacoity, with attempt to cause death or grievous hurt. As per the
Section, if, at the time of committing robbery or dacoity, the
offender uses any deadly weapon, or causes grievous hurt to any
person, or attempts to cause death or grievous hurt to any person,
the imprisonment with which such offender shall be punished,
shall not be less than 7 years.
24. Voluntarily causing hurt or grievous hurt is one of the
ingredient of the aforesaid offences, which is a minor offence
when compared to the offences under Sections 394 and 397 IPC.
The trial court has disbelieved the case of robbery. On the other
hand held that the appellant/A1 is guilty of the offence punishable
under Section 324 read with Section 34 IPC. No appeal has been
preferred by the State against the acquittal of the accused for the
offences punishable under Sections 394 and 397 IPC. Section 324
IPC deals with voluntarily causing hurt by dangerous weapons or
means. It says that whoever except in the case provided for by
Section 334, voluntarily causes hurt by means of any instrument
for shooting, stabbing or cutting, or any instrument which used as
a weapon of offence, is likely to cause death, or by means of fire,
or any heated substance, or by means of any poison, or any
corrosive substance, or by means of any explosive substance, or by
means of any substance which it is deleterious to the human body
to inhale, to swallow, or to receive into the blood, or by means of
any animal, shall be punished with the imprisonment of either
description for a term which may extend to 3 years, or with fine, or
with both. Therefore, the ingredients to be proved under Section
324 are that the prosecution must prove that the accused
voluntarily caused hurt to a person with a weapon as described in
the Section, which if used as a weapon of offence, is likely to
cause death. In Mathai v. State of Kerala (2005)3 SCC 260 it has
been held that the expression "any instrument which, used as a
weapon of offence, is likely to cause death" has to be gauged,
taking note of the heading of the section. What would constitute a
"dangerous weapon" would depend upon the facts of each case and
no generalization can be made. In Nanda Gopalan v. State of
Kerala, (2015) 11 SCC 137, after referring to Mathai (Supra) as
well as the dictum in Dasan v. State of Kerala, (2014) 12 SCC
66, it has been held that, the expression "any instrument, which
used as a weapon of offence, is likely to cause death" should be
construed with reference to the nature of the instrument and not the
manner of its use. What has to be established by the prosecution is
that the accused voluntarily caused hurt and that such hurt was
caused by means of an instrument referred to in this section.
Various factors like size, sharpness etc would throw light on the
question whether the weapon was a dangerous or deadly weapon
or not. That would determine whether in a case, offences under
Sections 323, 324, 325 or 326 would apply.
25. Now the question is, whether the ingredients of the
offence punishable under Section 324 IPC stands established in
this case. Admittedly, the weapon that was used for assaulting
PW2 has not been seized or recovered. However, it is well settled
that recovery of the weapon used in the commission of the offence
is not sine qua non for concluding regarding the guilt of the
accused. If there is direct evidence, which is credible and
trustworthy, even in the absence of recovery of the weapon of
offence, the accused can be convicted [See Rakesh vs. State of
U.P., 2021 KHC 6299: (2021) 7 SCC 188 and State vs. Laly @
Manikandan 2022 LiveLaw (SC) 851]. Therefore, I will examine
whether the remaining evidence on record is sufficient to attract
the ingredients of the offence under Section 324 IPC.
26. Now coming to the medical evidence.The trial court
held that the prosecution failed to prove Ext. PW10/A MLC of
PW2. Paragraph 17 of the impugned judgement which gives the
reasons as to why the trial court declined to rely on the MLC, reads
thus:-
"17. The MLC of injured Satish Kumar has not been proved
in accordance with law. The doctor, who prepared the MLC,
did not appear in the court to prove the MLC. The contents of
MLC of injured Ex. PW-10/A shows that he got admitted in
the hospital with alleged history of assault at Sarita Vihar.
He did not tell the doctor that he sustained injuries in the
incident of robbery. The opinion on the MLC was given by
some other doctor, whose name is not mentioned in the MLC.
The doctor, who prepared the MLC has not given the
measurement of the injury suffered by injured. Thus, the
contents of MLC Ex. PW-10/A pertaining to injured is highly;
doubtful".
27. The learned prosecutor submitted that though the
doctor who examined PW2 was not examined, the prosecution by
resort to Section 32(2) of the Evidence Act has succeeded in
proving Ext. PW10/A MLC by examining PW10 and, therefore,
the trial court was wrong in discarding the MLC.
28. Section 32(2) of the Evidence Act reads thus:-
"32. Cases in which statement of relevant fact by person who
is dead or cannot be found, etc., is relevant. -- Statements,
written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable
of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which under the
circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in the following
cases:-
(1) xxxxxxxxxxxxxxxxxxxx
(2) or is made in course of business.--When the
statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary
course of business, or in the discharge of professional duty;
or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind;
or of a document used in commerce written or signed by him;
or of the date of a letter or other document usually dated,
written or signed by him.
(3) to (8) not relevant, therefore, not referred to".
28.1. In Prithi Chand v. State of Himachal Pradesh,
AIR 1989 SC 702, it has been held that Section 32 of the Evidence
Act, 1872 (the Evidence Act) provides that when a statement
written or verbal, is made by a person in the discharge of
professional duty whose attendance cannot be procured without an
amount of delay, the same is relevant and admissible in evidence.
28.2. In Rambalak Singh v. State of Bihar AIR 1964
Patna 62, it has been held that if the doctor who had performed the
autopsy was not available at the time of trial or he is abroad, the
post-mortem certificate prepared by him would be admissible in
evidence if the handwriting and signature of the autopsy surgeon
on the post-mortem certificate are proved.
28.3. I also refer to the dictum in Kochu and Ors. v.
State of Kerala, 1978 KHC 321 : 1978 SCC OnLine Ker 79. In
the said case, an argument was advanced on behalf of the accused
that the burden cast on the prosecution cannot be said to have been
discharged by the mere examination of the medical officer who is
familiar with the handwriting and signature of the doctor who
issued the post mortem certificate; but the prosecution must prove
the contents of the document and also elicit from the witness
examined, his independent opinion as an expert on the conclusions
reached by the doctor who held the autopsy. It was held that it was
not always necessary and the law also does not insist that in all
such cases the witness should give his independent opinion on the
findings in the post mortem certificate or speak to each and every
statement made therein. Of course, if an expert witness, who has
been examined to prove the post mortem certificate issued by a
doctor who was dead or was not available for examination in court
under the circumstances stated in S.32 (1) of the Evidence Act,
also gives independent evidence as an expert on the conclusions
arrived at in the post mortem certificate, it would constitute an
additional piece of evidence of an expert. Under S.32, statements,
written or verbal, of relevant facts made by a person who is dead,
or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an
amount of delay or expense which, under the circumstances of the
case, appears to the court unreasonable, are themselves relevant
facts in cases falling under sub-s.1 to 8. A post mortem certificate
is not substantive evidence. It is only the evidence given in court
by the doctor who held the autopsy that constitutes substantive
evidence. A post mortem certificate, being a document containing
the previous statement of a doctor who examined the dead body,
can be used only to corroborate his statement under S.157 or to
contradict his statement under S.145 or to refresh his memory
under S.159 of the Evidence Act. But, S.32 (2) is an exception to
this. If the doctor who held the autopsy is dead or is not available
for examination under the circumstances mentioned in S.32 of the
Evidence Act, the certificate issued by him is relevant and
admissible under S.32(2) of the Evidence Act. The weight to be
attached to such a report or its probative value depends upon the
facts and circumstances of each case. The court can come to its
independent conclusion on the cause of death, if there is
independent evidence on record in support of it. Then the question
is whether the statements made in the post mortem certificate,
containing what was observed by the doctor during autopsy and
the conclusion arrived at by him therein have been properly proved
in accordance with law. S.67 of the Evidence Act speaks of the
mode of proof of a document. Under S.67 if a document is alleged
to be signed or to have been written wholly or in part by any
person, the signature or the handwriting of so much of the
document as is alleged to be in that person's handwriting must be
proved to be in his handwriting. When in cases the prosecution is
not able to procure the attendance of the doctor who held autopsy
without unreasonable delay or expense, the statement coming
under S.32(2) of the Evidence Act has to be proved by one of the
various modes prescribed in S.47 of the same Act.
29. Coming to the case on hand, as noticed earlier, the
prosecution in order to prove the MLC, has examined PW10, who
only deposed that she is familiar with the handwriting of the doctor
who had examined PW2 and issued the MLC. PW10 does not say
that the doctor was not available due to any of the circumstances
mentioned in Section 32 of Indian Evidence Act. It is only when it
is shown that the witness is not available due to any of the reasons
stated in Section 32, Sub-section (2) of Section 32 comes into play.
Had any of the grounds as contemplated under Section 32 for non-
examination of the doctor who examined PW2 had been brought
on record, the prosecution could have resorted to Section 32 (2)
read with Sections 47 and 67 of the Evidence Act to prove the
MLC. That has not been done. Hence, I agree with the conclusion
of the trial court that Ext. PW10/MLC has not been proved by the
prosecution, though for different reasons.
30. Now, what remains is the testimony of PW2, which
shows that A1 and A2 had voluntarily caused injury/hurt to him.
Hurt, defined under Section 319 IPC says, whoever causes bodily
pain, disease, or infirmity to any person is said to cause hurt. In the
absence of medical evidence showing the nature of injury caused
coupled with the absence of the recovery of the weapon, it is not
possible to conclude whether the weapon was a dangerous one as
contemplated under Section 324 IPC.
31. It was pointed out by the learned defence counsel that
the trial court in the impugned judgment refers to the conduct of
PW2 in going to a hospital which is far away from the scene of
occurrence. The trial court noticed that there were several hospitals
on the way but instead of going to any of the said hospitals, he
went to a hospital quite far away from the scene of occurrence for
which no explanation has been given. Likewise, the trial court has
also pointed out the defect of non-examination of the auto driver
who is alleged to have taken PW2 to the hospital for treatment.
The trial court disbelieved the motive or the case of robbery by
concluding that the possibility of false implication could not be
ruled out. Despite such finding, the trial court went on to convict
the accused, which according to learned counsel is an apparent
error/infirmity, that needs to be interfered with by this Court.
32. Despite the aforesaid aspects, the testimony of PW2
does show that A1 and A2 had voluntarily caused hurt to him. The
said aspect has not been discredited in any way. Whatever be the
motive/reason for the assault, the testimony of PW2 does show
that A1 and A2 voluntarily caused hurt to him. The said testimony
also satisfies the ingredients of 323 IPC and not Section 324 IPC.
33. Now coming to the sentence that needs to be imposed
on the appellant/A1. The nominal roll on record shows that the
appellant/A1 has criminal antecedents. That being the position, the
question of invoking the provisions of the Probation of Offenders
Act, 1958 or avoiding substantive sentence of imprisonment does
not arise. Hence, the appellant/A1 is sentenced to rigorous
imprisonment for a period of two months with fine of ₹1,000/- and
in default of payment of fine to simple imprisonment for 15 days.
34. In the result, the appeal is partly allowed, the impugned
judgement is modified to the following extent the appellant/A1 is
found guilty of the offence punishable under Section 323 IPC.
Hence, the appellant/A1 is convicted to rigorous imprisonment for
a period of two months with fine of ₹1,000/- and in default of
payment of fine to simple imprisonment for 15 days.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 17, 2026
mj/p'ma/rs
