Delhi District Court
Crl. Appeal No. 70/14 vs I. Sh. Devashish Vishnu on 24 February, 2015
In the court of Ms. Ina Malhotra, District & Sessions Judge
South East : Saket Courts, New Delhi
Crl. Appeal No. 70/14
Ms. Anita Vishnu
D/o Late Sh. Gopal Chander Vishnu
R/o B249, Chitranjan Park
New Delhi110019. .... Appellant
V E R S U S
i. Sh. Devashish Vishnu
S/o Late Deepak Kumar Vishnu
R/o Flat No. 43, Plot No. C58/16
Sector62, Harmany Apartment
Noida, U.P.
ii. The State
Govt. of NCT of Delhi .... Respondent
AND
Crl. Appeal No. 60/14
Sh. Devashish Vishnu
S/o Late Deepak Kumar Vishnu
R/o Flat No. 43, Plot No. C58/16
Sector62, Harmany Apartment
Noida, U.P. .... Appellant
V E R S U S
The State, NCT of Delhi. .... Respondent
Arguments concluded on : 23.01.2015
Judgment on : 24.02.2015
CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....1 of 8
J U D G M E N T
Vide this common order, I propose to dispose off both the appeal and the crossappeal arising out of the same FIR.
2. In the first appeal filed by the complainant Ms. Anita Vishnu, being Crl. Appeal No. 70/14, she is aggrieved by the fact that the respondent/accused has been convicted under Section 323 IPC only despite the fact that he was charged under Section 325 IPC and has been sentenced lightly It is submitted by the appellant that the accused who is her nephew had physically assaulted her at her residence with a blow on her nose leading to permanent disfigurement. On her complaint, the FIR was registered for the offence under Section 325 IPC. The Ld. Trial Court on appraisal of the evidence on record convicted the accused for the offence under Section 323 IPC and considered it fit to grant him the benefit of probation for a period of one year on furnishing a bond with a surety for Rs.20,000/.
3. It is also argued that the conviction under Section 323 IPC alone was not justified and Section 34 IPC also should have been upheld given the fact that the accused was accompanied by his deceased father at that time.
4. This appeal is resisted by the accused on the grounds of CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....2 of 8 having been filed beyond the period of limitation. Ld. Counsel for the accused also questions the maintainability of the appeal given the fact that it has not been preferred by the State. It is also argued that the present appeal has been filed under Section 374 Cr.PC which does not provide for any enhancement of the sentence at the instance of the complainant.
5. To justify the condonation of delay in filing the present appeal, the appellant/complainant submits that her elder sister suffers from a permanent disability which has been opined as severe. It is submitted that on account of her preoccupation with her mentally disabled sister, she could not file the present appeal on time. Medical certificate on record however is of 30.12.2003. Given the fact that the disability of the appellant's sister is permanent in nature and is old, it does not justify the delay in approaching the court on time.
6. From the facts of the case and going through the evidence, I do not find any common intention which attracts the applicability of Section 34 IPC. The accused and the deceased co accused (his father) had called upon the complainant and it was during the said meeting that an altercation took place, resulting in the accused giving a fist blow. For the purpose of Section 34 IPC, CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....3 of 8 the prosecution has to establish by way of evidence that there was a plan or meeting of mind of all the accused persons to commit the offence. Giving a blow by the accused to his complainantaunt was perhaps on the spur of the moment. It cannot be said that the accused and his father had the common intention of commission of this offence or that both the persons had jointly intended to inflict the blow. This is evident from the submission of the complainant herself, who has stated that it was supposed to be a pleasant meeting with her offering refreshments to the accused guests. The Ld. Trial Court was therefore fully justified in not convicting the accused under Section 34 IPC.
7. All objections raised by the Ld. Counsel for the accused in resisting the complainant's appeal merit consideration. The accused has been granted probation which in the opinion of the Ld. Trial Court was just and expedient. It is well within the discretion and jurisdiction of the Ld. Trial Court and does not call for any interference. Further, as opined above, the common intention cannot be inferred. The objection with respect to the State not being made a party or enhancement of sentence under Section 374 Cr.PC are technical glitches which can be removed. In addition, the reason for seeking condonation of delay in filing the CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....4 of 8 appeal by the complainant fails to satisfy this court that the appeal could not have been filed within time on account of preoccuptation with her mentally disabled sister. The complainant's appeal is therefore dismissed both on merits and as being time barred.
8. In the crossappeal preferred by the respondent/accused Sh. Devashish Vishnu being Crl. Appeal No. 60/14, it is submitted that the conviction under Section 323 IPC is not sustainable. It is argued by the Ld. Counsel for the appellant that having been charged under Section 325 IPC, conviction for the lesser offence of Section 323 IPC suffers from a legal infirmity. The appellant/accused also impugns the decision of the Ld. Trial Court in having placed reliance on the MLC which has not been proved in accordance with the established principles of the Evidence Act. It is submitted that the MLC has been proved through the record clerk and therefore could not be taken into consideration for the purpose of opining that the injuries were grievous in nature.
9. A perusal of the testimony recorded by the Ld. Trial court reflects that PW8, Dr. S.T. Shivaraman, had appeared in court and deposed that he had personally examined the complainant Ms. Anita Vishnu aged 43 years. On examination, he noted a 3x1cm CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....5 of 8 lacerated wound over the nose and had advised Xray of skull AP. The nature of the injury was opined as grievous causing disfigurement of the face and fracture of the nasal bone as per the opinion of the ENT Resident.
10. In his crossexamination, PW8 had reaffirmed that the injury on the nose could be viewed in the lateral views of the Xray. He also confirmed that the facial disfigurement was caused due to suturing on the lacerated wound as the scar would always remain.
11. I also find little merit in the arguments advanced by the Ld. Counsel for the accused in this case that having been charged with the offence under Section 325 IPC, the accused could not have been convicted for the offence under Section 323 IPC. The provision of Section 222 Cr.PC provide for convicting a person for a lesser offence. There is no infirmity in doing so. With respect to the MLC, this court finds it duly proved by the attending doctor PW8. In his opinion, there was permanent disfigurement on account of suturing as well as the nasal fracture confirmed by the report of the ENT specialist. The accused cannot escape conviction for the offence having assaulted his aunt, the complainant, on any technical grounds as the medical evidence is corroborative of the testimony of the complainant and the accused cannot be absolved of having CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....6 of 8 caused the injury.
12. Accordingly, there is no merit in the appeal filed by the accused seeking an acquittal. Appeal dismissed.
13. Copy of order along with TCR be sent to Ld. Trial court. File be consigned to Record Room.
Announced.
(Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 24.02.2015 CA No. 70/14 Anita Vishnu V. Devashish Vishnu AND CA No. 60/14 Devashish Vishnu V. Anita Page.....7 of 8 Crl. Appeal No. 70/14 & 60/14 Present : Counsel for the parties Ld. Addl. Public Prosecutor for the State Vide my common separate Judgment, both the appeal stands dismissed in terms thereof. Copy of order along with TCR be sent to the Ld. Trial Court. File be consigned to Record Room.
(Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 24.02.2015.
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