Delhi High Court
Amit Kumar vs State (Nct Of Delhi) on 31 May, 2019
Equivalent citations: AIRONLINE 2019 DEL 2330
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 29th May, 2019
% Judgment Delivered on: 31st May, 2019
+ CRL.A. 519/2016
AMIT KUMAR ..... Appellant
Represented by: Mr.Hemant Gulati and
Mr.Ghanshyam Kaushik, Advocates
versus
STATE (NCT OF DELHI) .... Respondent
Represented by: Ms.Rajni Gupta, APP for the State
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. By the present appeal, the appellant challenges the impugned judgment dated 17th February 2016 convicting him for the offence punishable under Section 308 IPC in FIR No. 88/2013 registered at PS Burari and the order on sentence dated 25th February 2016 directing him to undergo rigorous imprisonment for a period of four years and to pay a fine of 5000/- and in default to undergo simple imprisonment for a period of three months.
2. Learned counsel for the appellant contends that the appellant has been falsely implicated due to enmity. Appellant himself appeared in the witness box and also led defence evidence which has not been considered by the learned Trial Court. He submits that in any case the sentence awarded to the appellant is harsh and the same be modified to the period already undergone.
3. Learned APP for the State on the other hand contends that the Crl.A.519/2016 Page 1 of 10 prosecution case is based on the cogent and reliable testimony of the complainant Satish. He was immediately removed to the hospital by his brother Ram Shyam whose testimony corroborates the version of the complainant. Version of the complainant is also corroborated by Narender Gaur and nothing has been put in the cross-examination to show that he was inimical towards the appellant.
4. Sequence of events leading to the prosecution case are that a phone call was received on 13th March 2013 at 8:15 P.M., regarding a quarrel at 41 feet road near Kataria Factory, Satya Vihar, Burari. Aforesaid information was recorded vide DD No.41A (Ex.PW-12/A) and was assigned to SI Lalit Chauhan who along with Ct. Ravinder reached the spot where they found out that the injured had been removed to the Trauma Center by his family members. They reached the Trauma Center and collected the MLC No. 161618 of the injured Satish vide which he was declared fit for statement. In his statement he stated that on 13th March 2013 at around 8:00 P.M., he was at his house when the appellant called and asked to meet him at 41 Feet Road, Burari. On reaching there Amit enquired from him as to why he used to talk to Narender Gaur. He retaliated by stating that who he used to talk to was none of his concern. The appellant got angry on hearing this and took out a 'Dau' from his shirt pocket and hit him on his head 2-3 times with it due to which his vision became hazy. In the meanwhile, the appellant called 2-3 of his friends who started giving kicks and fist blows to him due to which he fell down over there. His brother Ram Shyam reached the place of incident and on seeing him, the appellant and his friends ran away. His brother took him to the hospital and got him medically examined there. When he reached the hospital, he saw that his chain and mobile phone were Crl.A.519/2016 Page 2 of 10 missing. Aforesaid statement was recorded vide Ex.PW-5/A. On the basis of the aforesaid statement, FIR No. 88/2013 (Ex.PW-8/A) was registered at PS Burari for the offence punishable under Section 308/34 IPC.
5. Thereafter, SI Lalit Chauhan along with the brother of the injured Ram Shyam reached the spot and prepared the site plan. Efforts were made to trace the appellant but he could not be found.
6. On 28th April 2013, the injured/complainant Satish went to the Police Station and informed that the appellant was in his Safari Dicor Car in front of Satsung Kingsway Camp as the tyre of his car was punctured. He alongwith Ct. Santpal and the complainant reached the spot where the appellant was apprehended on the pointing out of the complainant. At that time the complainant identified the gold chain worn by the appellant as his own and said that the same was missing since the time of the incident. The appellant was arrested vide arrest memo Ex.PW-5/B, his personal search was done vide Ex.PW-5/C and his disclosure statement was recorded vide Ex.PW-12/C. Thereafter, his car was taken into possession vide seizure memo Ex.PW-5/D and the recovered gold chain was kept in white colour cloth and pullanda was prepared which was sealed with the seal of RK and seized vide seizure memo Ex.PW-5/E. The case property was deposited with MHC(M). During investigation the appellant was further interrogated, and his supplementary disclosure statement was recorded vide Ex.PW-12/D. He led the police to the place where he had thrown the 'Dau' and on his pointing out the site plan was prepared vide Ex.PW-9/A. The weapon of offence could not be recovered from the spot.
7. Thereafter, on 1st June 2013 the case was transferred to SI Robin Singh who recorded the supplementary statement of the complainant on 30 th Crl.A.519/2016 Page 3 of 10 July 2013 and the statement of the jeweler from whom the recovered gold chain was purchased. He also obtained the Call Detail Record of the mobile phones.
8. On completion of investigation chargesheet was filed. Charge was framed for the offence punishable under Sections 307/34 and Section 411 IPC vide order dated 26th September 2013.
9. Complainant Satish was examined as PW-5 in court wherein he deposed in sync with his statement made to the police. He added that the appellant's friends came to the spot with 'dandas' in their hand. He later found out that his brother Ram Shyam had removed him to the hospital where he was medically examined. He further stated that two months after the incident he was returning with his wife after buying medicines and saw the appellant at Nirankari near Subzi Mandi as his vehicle had broken down. He went to the Police Station and informed the police of the same who went back to Subzi Mandi, Nirankari with him where the appellant was apprehended at his instance. His gold chain was also recovered from the possession of the appellant and seized. After this he left for his house.
10. In his cross-examination Satish stated that he had known the appellant for 20 years and had cordial relations with him. He was also engaged in part time property dealing. His brother Ram Shyam was also in the same business and was supplying building material for a long time. Prior to the property dealing business his brother was in the insurance business. He was not aware if his brother had ever done any dealing with respect to insurance for the family members of the appellant and whether there was any enmity between them. He had known Narender Gaur for the last 8-10 years and had casual relations with him. He did not know about the dealings of Narender Crl.A.519/2016 Page 4 of 10 Gaur and the appellant. He did not know if Amit had lodged any complaint against Narender Gaur as the police had not conducted any investigation with him. He further stated that he was not aware as to when he was hospitalized but he was taken to the hospital by his brother and his two friends. He also stated that he was not aware whether his gold chain and mobile phone had been snatched by the appellant at the time of recording of his statement in the hospital which is why he did not mention the same to the police. After his discharge from the Trauma Center he was again admitted in Sant Hospital in Sant Nagar for treatment for one month after the incident.
11. Ram Shyam (PW-2), brother of the complainant in his testimony deposed that he was a property dealer by profession. On 13 th March 2013, at about 8:00 P.M., he had gone towards Kataria Factory, 41 Feet Road. He saw few persons beating one person along with the appellant, whom he knew prior to the incident. When he reached near the spot, he saw his brother lying on the ground and the appellant with a 'Dau' in his hand. He raised an alarm due to which the appellant and his friends ran away. He took his brother to Trauma Center and got him admitted there. He took a photo of his injured brother from his phone, got them developed and handed them over to the police. He identified the photographs vide Ex.PW-2/A1-A9. In his cross-examination he stated that he had a business of insurance before the business of property dealing and had conversed with the family members of the appellant regarding insurance policy. The family of the appellant used to pay him the premium on the insurance through cheque and sometimes through cash. He further stated that he had not misappropriated any amount given to him by the family of the appellant. He further stated that he was Crl.A.519/2016 Page 5 of 10 returning back from his office when he witnessed the incident where 15-20 other public persons had gathered but none of them came to save him. He also stated that both his and his brother's clothes were stained with blood but the police did not seize them. He further added that he was not sure that there were any disputes between his brother, Narendar Gaur and the appellant.
12. Narender Gaur (PW-1), in his testimony deposed that he was residing at Tomar Colony Burari and doing a private job. He also had a flat at Surya Bhawan, Burari which was owned by his brother-in-law's wife. The appellant wanted to forcibly possess the said flat. He discussed the matter with the complainant due to which the complainant had an altercation with the appellant. In his cross-examination he stated that Amit was not residing as a tenant in this flat nor were his belongings kept there. He was also not aware if the appellant had filed any civil suit for permanent injunction against him and his wife for eviction from the said flat. He also stated that when the appellant wanted to forcibly take possession of the flat, he made a call at 100 number on 7th March 2013. He had also made a complaint in this regard. He further stated that he had known Satish since 2006 as a friend and not a business partner.
13. Arvind Prajapati (PW-6), stated that he was the owner of jewellry shop at Burari run in the name of Prajapati Jewellers. He identified the receipt (Ex.PX) dated 28th January 2013 pertaining to the gold chain weighing 9.700 gms costing Rs.34,163/- to Satish.
14. Vishal Gaurav (PW-11), Nodal Officer produced the summoned Call Detail Record of Mobile No. 9910094795 for the period 13th March 2013 to 13th April 2013. He identified the same vide Ex.PW-11/A. He also produced Crl.A.519/2016 Page 6 of 10 the Customer Application Form for the abovementioned number and stated that it was issued in the name of Ram Shyam. He identified the same vide Ex.PW-11/C.
15. Rajesh Kumar (PW-4), Record Clerk, Sushruta Trauma Center, stated that he had been working at the trauma center since 2000 as a Medical Record Clerk. He produced the treatment sheet vide Ex.PW-4/A as per which the complainant was admitted on 13th March 2013 at 9:00 P.M. and discharged on 18th March 2013.
16. Dr. Amit Gupta (PW-3), Medical Officer, LNJP Hospital stated that on 13th March 2013 he was working at Sushruta Trauma Centre as Medical Offficer. On that day one person namely Satish was brought to the hospital with alleged history of physical assault. He examined the patient and prepared the MLC vide Ex.PW-3/A wherein he found the following injuries:
i. Lacerated wound 5X1 cm over right forehead
ii. Lacerated wound 12X1 cm over left frontal to
right parietal area
iii. Lacerated wound of 4X1 cm over right parietal
iv. Abrasions on right and left knee
v. Tenderness, swelling left hand
He opined the injuries to be grievous in nature and the kind of weapon used was blunt.
17. Dr. Sunil, (PW-7) Radiologist, LNJP Hospital identified the handwriting of Dr. Praful on the X-Ray Report prepared by him vide Ex.PW-7/A. As per the report the patient sustained fracture of 3 rd and 4th proximal phalynx of right hand.
18. Dr. Santosh Kumar, (PW-14) Senior Resident, Sushruta Trauma Crl.A.519/2016 Page 7 of 10 Center identified the handwriting of Dr. Rajat Gupta at Point C on the MLC vide Ex.PW-3/A.
19. Appellant examined himself as DW-2 in court wherein he stated that he was the tenant of Narender Gaur since December 2012 in the flat situated on the ground floor in Surya Kiran Building opposite TVS Showroom, Burari. Narender Gaur wanted him to evict the premises forcibly due to which the appellant filed a suit for permanent injunction against him. When Narender Gaur came to know about the suit he alongwith 4-5 associates including the complainant Satish came to his rented house to dispossess him forcibly and they removed all his belongings and articles from the premises. They also tried to assault him but he rescued from there. He also informed the police and lodged a complaint dated 7th March 2013 with SHO PS Burari vide Ex.DW-2/A. He also made a complaint to DCP Civil Lines on 8 th March 2013 vide Ex.DW-2/B. Subsequently, Narender Gaur in connivance with the police implicated him in a false case.
20. Rinku (DW-3) in her testimony stated that she knew the appellant as he was the child of his friend. The appellant was residing at a distance of 500 mts from her house. On 7th March 2013, his owner asked him to vacate the property due to which he was residing at her workshop in Burari from 7th March 2013 to 14th March 2013. She further stated that a complaint had been made to the police on 7th March 2013 due to which she was at the police station till 2:00 A.M. on that day. In her cross-examination she stated that on 15th March 2013, the appellant had left the workshop stating that he was going to his village.
21. Vikram, (DW-1) Judicial assistant brought the summoned record of the case for permanent injunction being Suit No.19/2013 titled as Amit Crl.A.519/2016 Page 8 of 10 Kumar v. Sunita vide Ex.DW-1/A. The suit was dismissed in default due to non-appearance of the plaintiff and his counsel.
22. The appellant in his statement recorded under Section 313 Cr.P.C. stated as per his statement made under Section 315 Cr.P.C. before the court. He further stated that he knew Ram Shyam prior to the incident as he had taken some insurance policies from him and he used to collect premium for the policies from his family. He also knew Satish being the brother of Ram Shyam. He further stated that he did not make any disclosure statement to the police and his signatures were obtained on blank papers by the Investigating Officer. He also stated that the recovery of chain has been planted upon him. He added that he was the tenant of Narender Gaur who wanted to forcibly evict him from the rented premises with the help of the complainant and Ram Shyam.
23. Case of the appellant is that he was a tenant of Narender Gaur since 2012 and Narender Gaur wanted him to evict the premises forcibly in which regard he lodged a complaint dated 7th March, 2013 vide Ex.DW-2/A. A perusal of the documents exhibited by the appellant reveals that his civil suit was dismissed for non prosecution and on his complaint a NCR was written which he did not pursue any further. In the complaint Ex.DW-2/B, there is no explanation whatsoever as to how Satish received the grievous injury. The said complaint has been received in the office of DCP on 8 th March, 2013 and the injuries inflicted on Satish are on 13 th March, 2013 thereby indicating that out of animosity, the appellant inflicted the injuries.
24. Considering that the version of Satish is corroborated by his brother as also his injuries, this Court finds no illegality in the impugned judgment of conviction of the appellant for offence punishable under Section 308 IPC.
Crl.A.519/2016 Page 9 of 10The appellant has been awarded sentence of imprisonment for a period of four years out of which he has undergone nearly three and a half years imprisonment. The fine amount has already been paid.
25. Considering the nature of injury and the sentence undergone, the sentence of the appellant is modified to the period already undergone.
26. The appeal is accordingly disposed of.
27. Appellant be released forthwith by the Superintendent, Central Jail Mandoli if not required in any other case.
28. Copy of this order be sent to Superintendent Central Jail Mandoli for updation of the Jail record.
29. TCR be returned.
(MUKTA GUPTA) JUDGE MAY 31, 2019 vj/mamta Crl.A.519/2016 Page 10 of 10