CRL.A./61/2002 of AMARNATH @ KALLU & ANR. Vs THE STATE

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.A. No.61/2002

Date of Decision : 30[th]November, 2016

AMARNATH@KALLU & ANR...... PETITIONERSThroughMs.Inderjit Sidhu, Adv.

versus

THE STATE

..... RESPONDENTThroughMr.Panna Lal Sharma, APP with SIJainender Kumar, PS Anand Vihar.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J

1.Aggrieved by the judgment of conviction dated 18[th]August,2001 convicting the appellants finding them guilty under Section308 read with Section 34 of the Indian Penal Code and order onsentence dated 20[th]August, 2001 vide which the sentence waspassed against the accused to undergo rigorous imprisonment for aperiod of two years each and to pay fine of Rs.5,000/- each, andindefaultofpaymentoffine,toundergofurthersimpleimprisonment for six months, the present has been preferred by theappellants.

2.The facts in brief are that complaint was made by ShriKapil, son of Wakil Mohammad, in which it was alleged against

the appellants that on 13[th]June, 1998 when the complainant Kapilwas going to the house of his friend Sarbuland Khan and reachedtowards Gurdwara, he saw that Sarbuland Khan; Amarnath@Kalu& Nikka@Nikkey who resided in the same locality, werequarrelling with one another.Thereafter, Sarbuland Khan askedAmarnath@Kallu as to why he teased his sister Zohra over whichKallu got angry and asked his associate Nikkey to beat them. Thisresulted in minor scuffle in which Kallu and Nikkey broughtdandas from their jhuggies and started beating the complainantwhile Sarbuland Khan went to call the police. In the meanwhile,Kallu and his associates kept on giving danda blows on the head ofthe complainant Kapil who fell down. After that police came onthe spot and the complainant was admitted to S.D.N. Hospital andhis statement was recorded by the police. After investigation of thecase, the chargesheet was filed for offence under Section 308 readwith 34 of the IPC against both the accused.Both the accusedpersons pleaded not guilty.

3.The prosecution had examined as many as 11 witnessesnamely PW 1 Kapil, PW 2 Ramji Lal, PW 3 Dr.D. Chatterjee, PW4 Dr. Amitabh Singh, PW 5 Smt.Usha Rani, PW 6 Nisan Singh,PW 7 HC Sat Prakash, PW 8 Const.Khursheed Ahmad, PW 9 SIRameshMalik;PW10Dr.ChaitanyaSharma&PW11

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Dr.Sharmila Mitra.The statements of the accused persons wererecorded under Section 313 of the Code of Criminal Procedure byplacing the incriminating evidence against them.

4.The challenge made to the judgment of conviction and orderon sentence inter alia on the following grounds:-

(i)In the alleged incident, the appellants also received injuries.The injury on the person of the appellant no.1 was serious in natureas per Ex.PW 3/A and as stated by the investigating officer of thecase.The appellant no.1 was seriously injured in the allegedincident which clearly shows that the complainant party had comeprepared to attack the appellants and inflicted injuries upon them.The incident took place near the house of appellant no.1 and as thecomplainant party had grudge against the appellants, they camefully prepared to attack the appellants.If the version of theprosecution is to be believed, on being attacked by the complainant,the appellants were justified in defending themselves and that thealleged injuries on the complainant could have occurred due to selfdefence on the part of the appellants.

(ii)There are also major contradictions in the statement of thecomplainant to the effect that the main reason of the attack i.e.teasing of sister of Sarbuland Khan, as per the statement of thecomplainant was told by Sarbuland Khan at his house when the

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complainant reached there. However, in the same line, this witnesswent on to say that he was told of the reason when he metSarbuland Khan near the house of the appellant.

(iii)The Trial Court failed to appreciate the fact that so far as thestatement of eye witness PW 2 is concerned, the same does notinspire confidence inasmuch as according to his statement, thecomplainant was alone when he was being beaten by the appellantswhich is in complete contradiction to the prosecution case which isto the effect that both Kapil and Sarbuland Khan were present nearthe house of the appellants when the alleged incident occurred.Thus, if the statement of this witness is to be believed, thenwithholding of Sarbuland Khan as prosecution witness goes to theroot of the entire case and is fatal to the prosecution story.

(iv)The material witness i.e. Zohra, sister of Sarbuland Khanwho was alleged to have been teased by the appellant no.1, had notbeen examined. The Trial Court did not appreciate the fact that thealleged weapon of offence i.e. dandas were not even shown to thecomplainant at the time of his evidence as result of which thealleged injury which was shown to be caused by the alleged dandasby the appellants, could not be linked to the weapon which wasused.No specific role had been assigned to the appellants incausing alleged injuries to the injured.

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(v)Instant case lacks fair and proper investigation inasmuch asdespite the knowledge of injuries on the appellants and even aftermedical opinion in respect of the injuries sustained, no case wasregistered against the complainant and his companions despite theknowledge of the incident to the police.Apart from this, theprosecution did not bother to record the statement of the injuredappellants. The FIR was lodged after lapse of twenty days fromthe date of incident which clearly casts doubt over the episode andshows that the possibility of altering/twisting the facts of theincident cannot be ruled out. The delay in lodging the FIR of theincident is stated to be unexplained.

(vi)The charge has been wrongly framed under Section 308 ofthe IPC and it ought to have been framed under Section 323 of theIPC as bare reading of the facts and circumstances of case lead toinvoking of Section 323 IPC itself.

5.The submission made by counsel for the appellants isprimarily that the injury attributed in the present case makes theappellants liable to be charged under Section 323 read with Section34 of the IPC and not under Section 308 read with Section 34 of theIPC as has been framed.

6.In support of her contention, learned counsel for theappellants relies on the judgment of this court in which the charge

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framed under Section 308 of IPC was converted into Section 323 of

IPC taking into consideration the facts and circumstances of the

case. The relevant portion of this judgment reads as under:-

“9. It appears to me that quarrel had actuallytakenplacebetweentheappellantandthecomplainant possibly on account of either of themfeeling that the other one was staring at him andconfrontinghimaccordingly.Thoughthecomplainant did sustain injuries, in the facts &circumstances of the case, the Court cannot be sureas to whether palta was actually used by theappellant for causing injuries to him or not. In anycase, it cannot be known, what was the size andshape of the said palta. In these circumstances, itwould be difficult to say that the appellant hadcaused injuries to the complainant with suchintentionandknowledgethatundersuchcircumstances that if he by that act had causeddeath he would be guilty of culpable homicide notamounting to murder. The charge under Section308 of IPC, therefore, cannot be sustained. Theappellant, however, is liable to be convicted underSection 323 of IPC for causing simple injuries tothe complainant as Mohammad. He is convictedaccordingly.”

[Mohd. Akhtar Vs. The State passed in Crl.A.No.197/2010 Dt.03.04.2014]

7.Apart from challenging the judgment of conviction, learned

counsel for the appellants further submitted that as per the nominalroll, as on 12[th]November, 2016, the appellant no.1 AmarNath@Kallu had undergone six months and twenty sevendaysincarceration and unexpired portion of his sentence is one year, twomonths and twelve days. Whereas as per nominal roll of appellant

no.2 Nikka@Nikkey, as on 16[th]March, 2002, the undergone periodof sentence by him was seven months & one day while unexpiredportion of sentence of the appellant no.2 was one year two monthsand twenty nine days.The nominal roll also reflects that theappellant no.2 was released on bail on 16[th]March, 2002 by theorder of this Court. Learned counsel for the appellants requests forlesser sentence.

8.Per contra, arguments advanced by learned Additional PublicProsecution for the State is that the injury suffered by thecomplainant/injured is grievous in nature.It was argued thatduring his deposition in court, the injured fully supported the caseof the prosecution and his testimony has been duly corroborated byanother eye witness PW 2 Ramji Lal.Even the testimony ofinjured has been corroborated by medical evidence and statementsof the doctors who medically examined the injured and his medicalpapers. The prosecution successfully established its case beyondreasonable doubt that on the date of incident, the appellants causedgrievous injury on the head of the injured and they have beenrightly convicted by the trial court.

9.Upon hearing the rival contentions of the parties at lengthand judgment relied upon, evidence led is being examined.and judgment relied upon, evidence led is being examined.

(I).The complainant Kapil examined as PW 1 in his statement

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deposed that on 13[th]June, 1998, accused Nikkey and Amarnathteased the sister of his friend Sarbuland Khan at Gurdwara wali galiand when he and his friend Sarbuland Khan reached the narrowgali near Gurdwara to confront the accused persons regarding theteasing of sister of Sarbuland Khan, both the accused startedbeating them with dandas and both the accused gave danda blowson the head of the complainant. He further deposed that he becameunconscious and thereafter police came and took him to thehospital where he was medically examined.

(II)PW 2 in his testimony deposed that both the accused personswere using sticks at the time of quarrel and despite his effort tointervene, he could not save the complainant/Kapil. This witnessfurther deposed that the complainant received head injuries on hishead and blood was oozing out and that the condition of thecomplainant did not improve on the date of his examination.Thistestimony of PW 2 corroborates with the injured persons testimonymentioned above.

(III)Statement of PW 5 Smt.Usha Rani, sister of the accusedAmarnath was also recorded in which she deposed that her brotherwas arrested by the police in connection with the case and accusedNikkey was also got arrested on the next day of the arrest of hisbrother.

(IV)Statement of PW 6 Nisan Singh in his statement deposed thathe was called to the police station where both the accused personswere arrested and their personal search was conducted in hispresence vide memos Ex.PW 5/C and 5/D respectively which bearshis signatures at point-B of these memos.

(V)Statement of PW 7 HC Sat Prakash was recorded in whichhe deposed that while being posted at Police Station Anand Viharas Head Constable, he received ruqqa brought by ConstableMahender Singh and that on the basis of the said ruqqa, FIR waslodged.

(VI)Thereafter, statement of PW 8 Constable Khursheed Ahmadwas recorded in which he deposed that while being posted at PSAnand Vihar, he accompanied the investigating officer of the caseto Bhikam Singh Colony and that the accused Amar Nath tookthem to his jhuggi and produced two dandas which were taken intopossession by them.The memo as well as seizure memo wasexhibited as Ex.PW 8/A and bore their signatures.Theconfessional statements of both the accused were recorded asExh.PW 8/B & 8/C respectively and bear his signatures.

(VII) PW 9 SI Ramesh Malik in his statement deposed that healong with Ct.Omkar went to Bhikam Singh Colony wherein hewas informed that the injured persons had been removed to thealong with Ct.Omkar went to Bhikam Singh Colony wherein hewas informed that the injured persons had been removed to the

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police station Anand Vihar.He further deposed that both theaccused also sustained serious injuries and injured Kapil wasunconscious and unfit for statement. Further, he had also recordedthe disclosure statements of Amarnath ExPW8/B and 8/C ofNikkey in pursuance of which he was led inside the house andshown the dandas, which were therein taken into possession.PW9 further stated that he would be able to identify the said weapon, ifshown to him.

10.Section 308 IPC provides for punishment in cases of attemptto commit culpable homicide. It provides that whoever does anyact with such intention or knowledge and under such circumstancesthat if he by the act caused death, he would be guilty of culpablehomicide not amounting to murder whereas Section 323 IPCprovides for punishment for voluntarily causing hurt.

11.In this regard, reliance is placed on the pronouncement of the

Hon’ble Supreme Court in which it was held as under:-

"28. The question of the weight to be attached tothe evidence of witness that was himself injuredinthecourseoftheoccurrencehasbeenextensively discussed by this Court. Where awitness to the occurrence has himself beeninjured in the incident, the testimony of such awitnessisgenerallyconsideredtobeveryreliable, as he is witness that comes with built-in guarantee of his presence at the scene of thecrimeandisunlikelytosparehisactualassailant(s) in order to falsely implicate someone.

"Convincing evidence is required to discredit aninjured witness." [Vide Ramlagan Singh v. Stateof Bihar, Malkhan Singh v. State of U.P., MachhiSingh v. State of Punjab, Appabhai v. State ofGujarat, Bonkya v. State of Maharashtra, BhagSingh, Mohar v. State of U.P., Dinesh Kumar v.StateofRajasthan,Vishnuv.StateofRajasthan, Annareddy Sambasiva Reddy v. Stateof A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, similar view wastaken in Jarnail Singh v. State of Punjab, wherethis Court reiterated the special evidentiary statusaccorded to the testimony of an injured accusedand relying on its earlier judgments held as under:(SCC pp. 726-27, paras 28-29) "28. DarshanSingh (PW 4) was an injured witness. He hadbeen examined by the doctor. His testimonycould not be brushed aside lightly. He had givenfull details of the incident as he was present at thetime when the assailants reached the tubewell. InShivalingappaKallayanappav.StateofKarnataka this Court has held that the depositionof the injured witness should be relied uponunless there are strong grounds for rejection ofhis evidence on the basis of major contradictionsand discrepancies, for the reason that his presenceon the scene stands established in case it isproved that he suffered the injury during the saidincident.

29. In State of U.P. v. Kishan Chand similarview has been reiterated observing that thetestimony of stamped witness has its ownrelevance and efficacy. The fact that the witnesssustained injuries at the time and place ofoccurrence, lends support to his testimony that hewas present during the occurrence. In case theinjured witness is subjected to lengthy cross-examination and nothing can be elicited todiscard his testimony, it should be relied upon(vide Krishan v. State of Haryana). Thus, we areof the considered opinion that evidence of

Darshan Singh (PW 4) has rightly been reliedupon by the courts below.

30. The law on the point can be summarised tothe effect that the testimony of the injured witnessis accorded special status in law. This is as aconsequence of the fact that the injury to thewitness is an inbuilt guarantee of his presence atthe scene of the crime and because the witnesswill not want to let his actual assailant gounpunished merely to falsely implicate thirdparty for the commission of the offence. Thus, thedeposition of the injured witness should be reliedupon unless there are strong grounds for rejectionofhisevidenceonthebasisofmajorcontradictions and discrepancies therein."

[AbdulSayeedv.StateofMadhyaPradesh [(2010) 10 SCC 259]]

12.To the similar effect is the judgment of the Hon’ble Supreme

Court in which it was held as under:-

“14. Both the injured were subjected to lengthycross examination. Despite that nothing materialcould be elicited to discredit their testimony.There can be no dispute about their presence atthe spot as they were the victims and hadsustainedinjuries.Despitelengthycrossexamination,theystoodthetestofcrossexamination and nothing could be elicited toshow that the incident had not taken place in themanner projected by them or that they had notreceived injuries at the hands of the accused. TheFIR in this case was recorded without any unduedelay. According to the injured, the incident hadtaken place at about 12.15. p.m. Both the injuredwere examined at the hospital at about 12.45/1.00p.m. The Investigating Officer had come to knowabout the incident and had initially gone to thespot from where he came to know that injuredhad been removed to hospital. Therefore, he went

to hospital and recorded the statement of injuredRakeshYadavandthereaftergotthecaseregistered against the accused at about 3.05 p.m.This reflects that there was no delay in lodgingthe FIR which rules out the possibility of theirfalseimplication.Thatbeingso,thereisabsolutely no reason as to why the victims wouldallow the real culprits to go scot free and tofalsely name the accused in this case.”

[Mano Dutt and Anr. Vs. State of UP, (2012) 2SCC (Cri) 226]

13.As per the testimony of injured/complainant (Kapil) PW 1,on the day of incident when he along with his friend SurbulandKhan reached in narrow street near Gurdwara, both the appellantsmet them. When they complained the appellants regarding teasingof sister of Surbuland Khan, both the appellants started beating PW1 with dandas which they were holding. He specifically stated thatboth the appellantsgave danda blows on his head and afterreceivinginjurieshebecameunconscious.Testimonyofcomplainant/injured is duly corroborated by another eye witnessRamji Lal PW 2 who stated that on the date of incident, he saw thatthere was quarrel in narrow street between the appellants andcomplainant Kapil. PW 2 saw that both the appellants had usedsticks at the time of quarrel. PW 2 tried to intervened but he couldnot save Kapil. He specifically stated that Kapil received injurieson his head and blood was oozing out. During cross-examination,

PW 2 stated that he knew Kapil and both the appellants being theresidents of same locality.Kapil was alone and he was givenbeatings by the appellants. He also stated that he reached the spotwhen the quarrel was going on.

14.The testimony of the complainant/injured Kapil clearlyproves the case of the prosecution that on the date of incident, boththe appellants gave danda blows on his head.The testimony ofinjured Kapil is duly corroborated by his MLC Exh.P/w 3/B whichshows that there was swelling over his right parietal region, bruiseson scalp and bleeding from right ear and nose which alsoestablishes that the danda blows given on the head of the injuredwere so severe that the same could have caused his death.Thecarrying of danda and giving their blows on the vital part of theinjured clearly proves the intention and knowledge of the accusedpersons that they made an attempt to commit culpable homicide ofthe injured.So the prosecution has duly established beyondreasonable doubt that on the day of incident both the appellantscaused grievous injuries on the person of the injured Kapil and thusmade an attempt to commit his culpable homicide.

15.The above testimony of the injured Kapil which has dulybeen corroborated by another eye witness of PW 2 Ramji Lalinspire confidence. Though they were cross-examined at length by

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the defence but the defence has failed to put any dent to theirtestimony. Their testimony remained unshaken and unimpeachableand the same was found to be reliable and trustworthy as held byHon’ble Apex Court in the case of Abdul Sayeed (supra) & ManoDutt (supra).

16.It is pertinent to mention here the pronouncement of theHon’ble Supreme Court in which it was held that to make anoffence under Section 308 IPC, the nature of injury is notconclusive. The relevant portion of the Sunil Kumar (supra) isreproduced hereinbelow:-

"4.The view taken by the High Court isobviously erroneous because offence punishableunder Section 308 IPC postulates doing of an actwith such intention or knowledge and under suchcircumstances that if one by that act caused death,he would be guilty of culpable homicide notamounting to murder. An attempt of that naturemay actually result in hurt or may not. It is theattempt to commit culpable homicide which ispunishableunder Section308 IPCwhereaspunishment for simple hurts can be meted outunder Sections323 and 324 andforgrievoushurtsunder Sections325 and 326 IPC.Qualitatively, these offences are different. TheHigh Court was thus not well advised to take theview as afore-extracted to bring down the offenceto be under Sections 323/34 IPC and then in turnto hold that since that offence was investigated bythe police without permission of the magistrate,the proceedings under that provision be quashed.For the view afore-taken as to the commission ofthe offence under Sections 308/34 IPC, it is notnecessary to dwell on the correctness of the

second part of the order relating to quashing ofproceedings under Sections 323/34 IPC. Thus, theentire order of the High Court deserves to be andis hereby quashed, restoring the status quo ante ofthe trial remaining with the Additional SessionsJudge to proceed in accordance with law."

[Sunil Kumar Vs. NCT of Delhi & Ors., (1998)8 SCC 557]

17.Statement of PW 4 Dr.Amitabh Singh of SDN Hospital wasalso recorded who medically examined the complainant Kapil on14[th]June,1998andreferredhimtosurgeonforfurtherexamination.PW 3 Dr.D. Chatterjee has stated that on14.06.1998,patientKapilwasreferredtohim forfurthermanagement. He examined the patient and found the head injuryas mentioned in the MLC and other things. He referred the patientto RML Hospital as facility was not available in SDN Hospital tolook after the patient of head injury. PW 11 Dr. Sharmila providedthe X-Ray report as PW 11/A. The X-Ray report was examined byher on 13[th]June, 1998 itself and found fracture on right temporoparietal bone in the skull.PW 10 Dr.Chaitanya Sharma on theMLC which is Ex.3/B and in his statement deposed that on 14[th]June, 1998, the complainant Kapil was admitted in LNJP Hospitaland that the injuries & X-ray report shows that the fracture on theright temporo parietal bone of the complainant Kapil clearlyreflects that the injury was grievous in nature as per endorsement

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Ex PW 10/A on MLC which is Exh.PW 3/B.

18.The discussion made above apparently shows that the injuredKapil is trustworthy who suffered head injury which was found tobe grievous in nature as per his MLC Exhibit PW 3/B and bringsthe case of the prosecution within the four corners of the allegedcommission of offence which culminated into the conviction of theconvicts/appellants.This court is of the considered opinion thatthe prosecution has successfully proved the guilt of the appellants.

19.As result, no error or illegality is found in the view takenby the Trial Court in the judgment of conviction dated 18[th]August,2001 and same needs to be upheld.

20.The arguments advanced by the counsel for the appellantsthat the offence committed by the appellants falls under Section323 IPC rather than Section 308 IPC, does not find any substanceparticularly keeping in view the judgment of the Supreme Court inthe case of Sunil Kumar (supra) and the nature of injury which isshown to be “grievous” having fracture on the head and deserves tobe turned down.

21.The submission made by counsel for the appellants is that the

learned Trial Judge awarded the sentence on the higher side andclaims the reduction/modification in the sentence. In view of thefacts and circumstances stated above, the injury caused is the

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fracture on the head and termed as “grievous” as per the MLCExh.PW 3/B. In such circumstances, the sentence awarded cannotbe said on the higher side and no case is made out for thereduction/modifying the sentence awarded vide order on sentencedated 20[th]August, 2001 and the same is upheld.

22.Section 319 IPC defines the term “hurt” whereas Section320 IPC defines “grievous hurt”.The fracture on the skull isgrievous hurt and cannot be termed as simple hurt.

person causing fracture on skull cannot term the hurt assimple hurt as per the settled law.

23.In totality of the discussion made above, no fault or errorcould be found in the judgment dated 18[th]August, 2001 convictingthe appellants and the order on sentence dated 20[th]August, 2001.Resultantly, the present appeal is dismissed.

24.The surety bonds and personal bonds of the appellants areforfeited. The convicts/appellants are directed to surrender beforethe trial court concerned within period of fifteen days from thedate of judgment.

NOVEMBER 30, 2016

(P.S.TEJI)JUDGE

Crl.A. No.61/2002