Full Text
HIGH COURT OF DELHI
Date of Decision: August 22, 2023
STATE ..... Petitioner
Through: Mr. Utkarsh, APP for State with SI Rajat Khaiwal, P.S. P.V. East
Through: Mr. Jaideep Malik, Mr. Nitesh Dhankhar, Mr. Lucky Nigam, Advocates
JUDGMENT
1. Leave to appeal is granted.
2. The present petition along with pending applications, if any, stands disposed of. Criminal Appeal No.________ (to be numbered)
3. The present Criminal appeal is filed under section 378 Cr.P.C. to impugn the judgment dated 10.12.2018 passed by the Court of Dr. Shahabuddin, Additional Sessions Judge/Special Judge (NDPS), West District, Tis Hazari Courts, Delhi in SC no. 57988/2016 arising out of FIR bearing no.172/2013 registered under section 308 read with section 34 IPC at P.S. Paschim Vihar whereby the respondents were ordered to be acquitted for the offences punishable under sections 308/34 IPC.
4. As per the prosecution, Head Constable Jagdish Prashad on 10.06.2013, after receipt of information from PP Madipur reached at Action Balaji Hospital on 10.06.2013 where injured/Inderjeet Kumar was found to be under treatment vide MLC bearing no.4012/2013. The doctor opined that the said Inderjeet Kumar was unfit for statement. Thereafter, on 13.06.2013, the statement of the complainant/Inderjeet Kumar was recorded wherein he stated that on 09.06.2013, he had gone to the office of the respondent no.1/Vijay Yadav at A-6/171, LSC Market, Near Sports Complex, Paschim Vihar, Delhi to receive his security money where he was beaten by the respondents from the dandas and fists. Inderjeet Kumar was taken into the Action Balaji Hospital. The Investigating Officer, after conclusion of the investigation filed the charge-sheet for the offences punishable under sections 308/34 IPC. The Trial Court of Sh. Rakesh Kumar-I, ASJ, Special Judge (NDPS), West District, Tis Hazari Courts, Delhi vide order dated 17.08.2016 framed the charges for the offences punishable under sections 308/34 IPC against the respondents to which they pleaded not guilty and claimed trial. The prosecution had examined 09 witnesses including the injured/Inderjeet Kumar as PW-1 and the doctors as PW-5, PW-6 and PW-9. The statements of the respondents were recorded under section 313 Cr.P.C on 19.11.2018 wherein they pleaded false implication and denied the incriminating evidence against them. The respondents preferred not to lead defence evidence.
5. The Trial Court of Dr. Shahabuddin, Additional Sessions Judge/Special Judge (NDPS), West District, Tis Hazari Courts, Delhi vide judgment 10.12.2018 opined that the respondents are entitled for the benefit of doubt and accordingly the respondents were ordered to be acquitted. The relevant part of the judgment dated 10.12.2018 is reproduced as under:-
17. On the basis of above mentioned discussion, coupled with entire oral as well as documentary evidence on record, produced on behalf of prosecution, this court is of the considered opinion that ingredients of section 308 IPC, read with section 34 IPC, are not made out against any of the accused herein qua this matter, beyond reasonable doubt. In other words, the prosecution side has miserably failed to prove the guilt of any of the accused, in this case, beyond reasonable doubt, for the alleged offence, for which charge has been framed against them in this case. Accordingly, both the accused are entitled for benefit of doubt and consequently they are entitled for acquittal in this case. Hence, both accused are hereby acquitted for offence u/s 308 IPC, read Section 34 IPC, for which charge was framed against them in this matter.
6. The Additional Public Prosecutor argued that the impugned judgment was passed in utter disregard of the evidence brought on record by the prosecution and during the course of the arguments, referred the testimony of the injured i.e. PW-1/Inderjeet Kumar. The Additional Public Prosecutor also referred the medical evidence by arguing that the PW-1/Inderjeet Kumar remained admitted in the hospital for more than 06 days and he received multiple injuries. The Trial Court was not justified in acquitting the respondents.
7. The counsel for the respondents during the course of the arguments, has referred cross-examination of PW-1/Inderjeet Kumar wherein he admitted that the dispute between him and the respondent no.1 was for a sum of Rs.6,00,000/- which had been paid to him along with the medical expenses by the respondent no.1 at the time of hearing of the bail application. The PW-1/Inderjeet Kumar also handed over the possession of the room out of the property stated to be owned by the respondent no.1. The Trial Court was justified in acquitting the respondents.
8. The perusal of the testimony of PW-1/Inderjeet Kumar reflects that he has supported the case of the prosecution and deposed that on 09.06.2013 at about 09:30 P.M., on receipt of telephonic call from the respondent no.1, he had gone to the office of the respondent no.1 situated at A-6/171, LSC Market, near Sports Complex, Paschim Vihar. Delhi. The PW-1/Inderjeet Kumar reached at the office of the respondent no.1/Vijay Yadav at 09:45 P.M. when he was beaten by kicks and fist blows and the respondent no.1/Vijay Yadav also took out a danda from the stairs of his office and assaulted on his head and other parts of body. The PW-1/Inderjeet Kumar during the cross-examination also deposed that he sustained injuries on legs, buttocks, thighs, shoulders as well as on his head in the scuffle. The PW- 1/Inderjeet Kumar had denied the suggestion that he had fallen down from the stairs and sustained injuries.
9. The prosecution had also examined Dr. Prashant Kumar Chaudhary, Neuro Surgeon as PW-5, who opined the nature of injuries as received by the PW-1/Inderjeet Kumar were simple in nature vide opinion Ex.PW-5/A. PW-5 also deposed that as per the local examination of PW-1/Inderjeet Kumar on 09.06.2013, he was lacking consciousness for 20-30 minutes with multiple bleeding wounds at legs and scalp and was referred from casualty to Neuro Surgery department. The CT scan of head of PW-1/Inderjeet Kumar was found to be normal. The PW-6/ Dr. Chandrashekhar opined that on 10.06.2013 at about 12:30 P.M, he medically examined PW-1/Inderjeet Kumar who was not fit for statement at that time and proved the MLC which is Ex.PW-6/A. The PW-6/Dr. Chandrashekhar also observed CLW over right temporal occipital region (4 x 1 cm in size) and found multiple bruises over both legs and right side abdomen. The PW-9/Dr. Virender Kumar proved the MLC as Ex.PW-7/A prepared by Dr. Brijender Singh.
10. The perusal of the impugned judgment dated 10.12.2018 reflects that the Trial Court was swayed by the cross-examination of the PW-1/Inderjeet Kumar. The PW-1/Inderjeet Kumar in cross-examination as per the impugned judgment admitted that the dispute between him and the respondent no.1 was for a sum of Rs.6,00,000/- and thereafter at the time of hearing of the bail, PW-1/Inderjeet Kumar has received Rs.6,00,000/- from the respondent no.1. The PW-1/Inderjeet Kumar after receipt of Rs.6,00,000/- from the respondent no.1 also handed over the possession of the room to the respondent no.1. The Trial Court also appeared to be influenced by the admission of the PW-1/Inderjeet Kumar that he was working as an EEG Technician at Maharaja Agarsen Hospital and the distance between Maharaja Agarsen Hospital and Action Balaji Hospital is about one kilometer.
11. The Trial Court, while acquitting the respondents for the offences punishable under sections 308/34 IPC, has totally ignored the testimony of PW-1/Inderjeet Kumar, which was supported by the medical evidence. The Trial Court has wrongly observed that the prosecution could not prove the guilt of the respondents beyond reasonable doubt for the offences for which they were charged. The Trial Court should have analysed and examined the quality and quantity of the evidence led by the prosecution. In the final conclusion of the impugned judgment, there is no reference of the testimony of the PW-1/Inderjeet Kumar and other medical evidences. The Trial Court was not justified in acquitting the respondents for the offences punishable under sections 308/34 IPC vide the impugned judgment dated 10.12.2018.
12. It is proved that the PW-1/Inderjeet Kumar on 09.06.2023 had received injuries at the hands of the respondents. The issue which needs judicial consideration is that whether on the basis of the evidence led by the prosecution, the offence punishable under section 308 read with section 34 IPC is actually made out or not.
13. In Ramesh V State 2010 (I) JCC 796, this Court altered the conviction from 308/34 to 323/34 by holding that assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide. In Sunder V State 2010 (1) JCC 700, this Court altered the conviction of the appellant from Section 308 to 323 IPC by holding that in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder. In Raju @ Rajpal and others V State of Delhi 2014 (3) JCC 1894, this Court altered the conviction from Section 308 to 323/34 by holding that the nature of injuries were simple and injuries were not caused with the avowed object or knowledge to cause death. In Ashok Kumar and another V State of Delhi Crl. Appeal No. 17/2011 decided on 20.02.2015, this Court altered the conviction of Section 308 IPC to Section 323/34 IPC and held that injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant. In Pawan Chaddha V State Criminal Appeal 640/2011 decided on 27.01.2016 by this Court, the appellant was convicted for offence under Section 308 and Section 323/34 IPC while the co-accused were held guilty and convicted under Section 323/34 IPC. As per the MLC following injuries were observed on person of the complainant:-
(i) CLW 8x2x.[5] cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x[1] cm over right wrist.
One of issues which arises for consideration is whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:- In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death. It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
14. It is appearing from the medical evidence that the PW-1/Inderjeet Kumar received simple injuries and his CT Scan for the head was also found to be normal. Although PW-1/Inderjeet Kumar remained unconscious for 20-30 minutes after he was brought to the hospital with multiple bleeding wounds at legs and scalp, the testimony of PW-6 reflects that PW- 1/Inderjeet Kumar received only one CLW over right temporal occipital region (4 x 1 cm in size) and multiple bruises over both legs and right side abdomen. The PW-1/Inderjeet Kumar at the time of admission, was found to be conscious and oriented with almost normal vitals. The PW-1/Inderjeet Kumar was also diagnosed with a mild head injury. The PW-1/Inderjeet Kumar remained admitted in the hospital for 5-6 days.
15. After considering all facts as mentioned hereinabove, the prosecution/petitioner/State is able to prove the case against the respondents for the offences punishable under sections 323/34 IPC. Accordingly, the respondents are convicted for the offences punishable under sections 323/34 IPC.
16. As per the nominal roll, both the respondents remained in judicial custody for a period of 19 days which in the opinion of the Court is sufficient punishment for the offences punishable under sections 323/34 IPC. Accordingly, the respondents are sentenced to imprisonment for the period already undergone. The bail bonds are cancelled and surety is discharged. Case property, if any, to be disposed as per law.
17. A copy of this judgment be sent to the Trial Court for information and compliance. DR.
SUDHIR KUMAR JAIN, J AUGUST 22, 2023 j/am