Delhi District Court
Arun Kumar vs The State on 30 January, 2019
IN THE COURT OF MS SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03 (SOUTH), SAKET COURTS, NEW DELHI
Crl. Appeal No.77/18
Arun Kumar
S/o Sh. Shyam
R/o Jhuggi No.A-55,
Near Virat Cinema,
Dakshinpuri, New Delhi ...... Appellant
Vs.
The State, Govt of NCT of Delhi ...... Respondent
Date of Institution : 05.03.2018
Final arguments heard on : 10.01.2019
Order pronounced on : 30.01.2019
JUDGMENT
1. In this appeal filed U/s 374 CrPC, appellant has assailed the impugned judgment dated 09.02.2018 and the order on sentence dated 17.02.2018, passed by the court of Sh. Sandeep Garg, Ld. ACMM, South, Saket Courts, New Delhi in case FIR No. 10/13, u/s 326 IPC PS Ambedkar Nagar.
2. Vide impugned judgment dated 09.02.2018, Ld Trial court held the appellant guilty for the offence punishable u/s 326 IPC. Vide order on sentence dated 17.02.2018, trial court sentenced the accused to undergo rigorous imprisonment for 05 years alongwith fine of Rs. 1 lac which was ordered to be paid as compensation to the complainant u/s 357 (1) Cr.P.C. for enabling Arun Kumar vs. State 1/14 CA No. 77/18 her to get her plastic surgery done for restoring beauty of her face. In default of payment of fine, convict was further directed to undergo simple imprisonment for one month. Hereinafter, appellant shall be referred as accused for the sake of convenience.
3. Ld counsel for the appellant has urged for setting aside the impugned judgment and sentence order mainly on the grounds that they are based on conjectures and surmises and do not reflect application of judicial mind; that Ld. trial court failed to appreciate that the only independent witness examined in the matter i.e. PW3, did not support the prosecution case and even the version of PW2 suffers from serious infirmities and is not in consonance with the other material on record; that Ld. Trial court failed to take into account the defence evidence led by the accused and wrongly discarded the version of defence witness; that Ld. Trial court did not appreciate that as per the MLC, PW2 was admitted in the hospital at 8:40 am whereas, the alleged incident as per PW2, had occurred at 8:30 am that is to say, the injured got admitted in the hospital within 10 minutes of the alleged incident which itself falsifies the case of prosecution because as per prosecution case, after the incident, a 100 number call was made and subsequent thereto, police arrived and took the injured to hospital and as such, it was not possible for the complainant to reach AIIMS hospital within 10 minutes of incident; that Ld. trial court failed to appreciate that at the time Arun Kumar vs. State 2/14 CA No. 77/18 of alleged incident, appellant was not present at the spot as he was sleeping in his home at that time and only due to a heated arguments exchanged between her and appellant/accused on 06.01.2013 i.e. just a few days prior to alleged incident, complainant falsely implicated him; that Ld. trial court did not appreciate that the prosecution failed to examine any public witness or the family member of the complainant; that prosecution case was not proved beyond doubt on the point of identity because even as per complainant, assailant had half covered his face and chances of error in identification were already there; that the prosecution also failed to prove the motive of the offence; that trial court was not justified in convicting the accused for the offence u/s 326 IPC because the injuries sustained by the complainant were simple in nature; that no recovery of weapon of offence i.e. blade allegedly used in inflicting injuries to the complainant was effected during investigation and that despite the fact that appellant was in muffled face at the time of alleged incident, IO did not make any effort to conduct judicial TIP of the accused.
4. Arguments of Ld. Counsel for appellant are on the same lines of grounds of challenge as set out in appeal. In addition, it was further argued that prosecution has miserably failed to prove the case beyond reasonable doubt because the version of prosecution witnesses is wholly unreliable and untrustworthy as the same suffers from material contradictions Arun Kumar vs. State 3/14 CA No. 77/18 and grave infirmities.
5. Per contra, Ld Additional PP for the State submitted that the impugned judgment and the sentence order does not call for any interference as the same has been passed by the trial Court after due consideration of all the evidences adduced before the court and except for some minor details, the injured has come out with cogent and consistent version and successfully withstood the test of cross examination and her testimony is duly corroborated with the medical evidence and there is no iota of material to raise any doubt on the credibility of the prosecution case. Ld. Addl. PP further submitted that all the points of challenge agitated before this court have already been dealt with by Ld. trial court and rightly so and hence, the impugned judgment and sentence order does not suffer from any illegality or infirmity and does not warrant any interference by this court.
6. I have given my thoughtful consideration to the submissions made by both the sides and also carefully perused the entire trial court record.
7. Briefly stated the prosecution case as emerging out from the charge sheet is that on 10.01.2013, upon receipt of DD no.14A Ex.PW1/C, ASI Baldev Raj alongwith Ct. Harender Singh reached the spot i.e. Jhuggi near Virat Cinema, Dakshinpuri, New Arun Kumar vs. State 4/14 CA No. 77/18 Delhi where no eye witness was found present and upon inquiry, it was revealed that injured had already been taken to hospital by PCR van. Meanwhile, IO received another DD no. 15B regarding admission of injured Laxmi vide MLC no.347997 Ex.PW4/A at AIIMS hospital and pursuant to said DD, he alongwith Ct. Harender Singh reached there and collected MLC of injured. In the MLC, doctor had opined the injuries as grievous and declared injured fit for statement.
8. IO recorded the statement of injured available on trial court record as Ex.PW2/A, to the effect that on 10.01.2013 at about 8:00 am, while she was coming from toilet after attending the call of nature, accused Arun came and attacked her on her face with a blade due to which blood started oozing out and she raised alarm. Thereafter, accused fled away from the spot and complainant made a 100 number call. PCR van arrived at the spot and took her to hospital. On the statement of complainant/injured, present FIR Ex.PW1/A was registered at PS Ambedkar Nagar.
9. Vide order dated 12.02.2015, Ld Trial Court framed the charge u/s 326 IPC against the accused, to which he pleaded not guilty and claimed trial. In order to prove the charges against the accused, prosecution examined six witnesses namely HC Shobha (DO), Smt. Laxmi (injured/complainant), Smt. Asharfi Devi (shopkeeper of a nearby shop), Dr. Ram Kumar Arun Kumar vs. State 5/14 CA No. 77/18 Suryavanshi (for proving the MLC), HC Harender Singh (accompanied IO in the investigation) and SI Baldev Raj (IO), who were examined as PW1 to PW6 respectively.
10. On 16.03.2017, the statement of accused u/s 313 CrPC was recorded wherein in answer to the incriminating material put to him, the accused denied the same as wrong and incorrect. He pleaded that he had been falsely implicated in this case. In defence, accused examined one witness Smt. Asha as DW1.
11. I have carefully perused the testimony of all the prosecution witnesses recorded before the trial court and the same reveals that except the doctors, the duty officer and one public witness Smt. Ashrafi Devi, all other prosecution witnesses were duly cross examined by Ld. Defence counsel.
12. PW2 is the injured victim and she is star witness of the prosecution case. As per her version, some quarrel had taken place between her and the accused as the accused was not happy on the visit of complainant's sister to her house and pursuant to said quarrel a 100 number call was also made and Police had also arrived and later called them to police station but no FIR was registered and both the parties were sent back. As per her version, the subsequent incident of 10.01.2013 is the offshoot of the previous incident after which the accused Arun Kumar vs. State 6/14 CA No. 77/18 harbored grudges against her and attacked her on her face with a blade in the morning of 10.01.2013 when she alongwith her four year old daughter was coming after attending the call of nature from a public toilet.
13. The testimony of PW1, regarding a quarrel which allegedly took place between her and accused four days prior to the incident, has also gone unrebutted as no suggestion or question was put to PW1 to controvert the same. As such even the motive of offence, which though is not very material in cases based on direct evidence, has also got established on record by the unrebutted testimony of complainant.
14. With regard to the allegations of infliction of injuries on the face with the blade, it is vehemently argued on behalf of the accused that testimony of the complainant is not corroborated with any independent evidence and therefore, cannot be relied upon. Here, I may mention that mere non examination of public witnesses who were allegedly present at the time of the incident is not sufficient to discredit the clinching version of the injured which is duly corroborated by the medical evidence. In the light of credible and sterling testimony of complainant who is a victim of the offence, non joining of the independent witnesses is not fatal to the case of the prosecution. It has been observed by the Ld Apex Court in Shivaji Sahabrao Bobade and Anr. Vs State of Arun Kumar vs. State 7/14 CA No. 77/18 Maharashtra (1973) 2 SCC 793 that:-
"Even if the case against the accused hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters".
15. In the instant case, though a plea of false implication has been taken by the accused in his statement u/s 313 Cr.PC but, in absence of any previous enmity between the parties, there is no reason for the victim to falsely implicate the accused and to allow the real culprit to go scot free. Furthermore, the version of the complainant regarding an assault on her and sustaining injuries on her face with the sharp object like blade is further corroborated with the medical evidence i.e. MLC Ex.PW4/A as well as the evidence of PCR record i.e. DD No.14A Ex.PW1/C. As per the MLC, the victim was admitted in the hospital on 10.01.2013 at 8.42am with alleged history of assault.
16. As far as hostile version of PW3 Asharfi Devi is concerned, she is not the eye witness to the alleged incident, rather her version is in the form of evidence u/sec. 8 of Indian Evidence Act because after the alleged incident, the injured started crying, 'khoon nikal raha hai, khoon nikal raha hai." Even in her 161 Cr.PC statement, Asharfi Devi has never claimed Arun Kumar vs. State 8/14 CA No. 77/18 to have seen the accused inflicting injuries on the victim but she only stated that she had seen the victim who was coming from Sulabh complex Virat cinema side and she saw her crying that Arun had assaulted her with the blade. But, in her deposition in the court witness resiled to the extent that she did not say that victim had uttered the name of assailant as Arun as she (PW3) simply stated that she had seen the victim coming from the side of public toilet and she was crying, 'khoon nikal raha hai, khoon nikal raha hai." Hence, as far as the fact of victim being assaulted and having sustained injuries on her face is being corroborated by witness Asharfi Devi. However, the fact that the victim had named Arun as assailant immediately after she sustained injuries on her face on 10.01.2013, has not been disputed even by the accused because the witness DW1 examined by the accused had also stated on the same lines that she had seen Laxmi coming towards her on 10.01.2013 while covering her face with cloth and when she (DW1) inquired her (victim), the victim told her that Arun had caused her injuries. As such, even from the version of defence own witness, victim had accused Arun i.e. the accused herein, for inflicting injuries on her face, immediately after the occurrence.
17. Although DW1 has been examined to prove the plea of alibi as she deposed that after knowing the aforementioned fact from the victim, she (DW1) got angry and went to the house of the accused and woke up the grandmother of accused, who Arun Kumar vs. State 9/14 CA No. 77/18 was sleeping to verify said fact but, she was told by the grandmother of accused that accused was sleeping in the home and thereafter, DW1 saw herself that accused was sleeping inside the house. DW1 had also deposed about the fact that on 06.01.2013, some altercation had happened between the victim and grandmother of accused. In the cross examination DW1 deposed that she had seen Laxmi in injured condition at 7.30am and she reached the house of accused within 10 minutes of her meeting Laxmi. She further deposed that it was winter season, therefore, she was sitting under a flag with her children around the bonefire. She further deposed that after hearing the voice of Laxmi, parents of Laxmi and other neighbours also assembled at the spot but nobody went alongwith her to accused's house.
18. Except the verbal testimony of DW1, there is absolutely no other material to prove the plea of alibi. The version of DW1 which is not supported with any other material, cannot be believed for the reason that victim's testimony stands at a higher pedestal especially when the same is cogent, clinching and is also supported with the other corroborative material. Furthermore, there is no reason why the victim, whose face got disfigured on account of alleged assault on her, would allow the real culprit to go unpunished and implicate some other person with whom she had just a verbal altercation, a few days ago.
Arun Kumar vs. State 10/14 CA No. 77/1819. It is vehemently contended by the defence counsel that no independent witness from the neighbour or the family member of the complainant were joined in the investigation by the IO and the same also raises a doubt on the credibility of prosecution case. In this regard, I may refer to the cross examination of complainant wherein, she has stated that at the time of alleged incident some passerbye were though coming and going through the road but, there was no known/acquainted person near the place of occurrence. The said version clearly shows that no public person from the locality or her family except her four year old child, was present at the time of alleged incident. Even otherwise, the incident occurred in the first week of January which is the time of extreme cold and the possibility of presence of people outside their houses in the morning hours was not definite. For the same reason, even the credibility of DW1 becomes doubtful who said that at 7.30am, when the incident occurred, she was sitting under the flag with her children around the bonefire.
20. The other contention raised by the counsel for the appellant regarding error of identification is also not convincing for the reason that despite the fact that the accused had half covered his face at the time of alleged incident but the accused and the victim were not stranger to each other and therefore, even with the half covered face the eyes, forehead, complexion of the skin, the hair style, the body built are many other factors Arun Kumar vs. State 11/14 CA No. 77/18 which could have easily enabled the victim to identify the accused especially when the accused was her neighbour and with whom she had a verbal altercation just a few days ago.
21. One of the ground of challenge set out in present appeal is that the trial court was not justified in convicting the accused for the offence u/s 326 IPC because, the injuries sustained by victim were simple in nature. However, the MLC Ex.PW4/A clearly reflects that the opinion regarding nature of injuries was given as 'grievous' and even PW4 Dr. Ram Kumar Suryawanshi, who duly proved the MLC on record also deposed that he had given his opinion regarding nature of injury as 'grievous' and the kind of weapon used was 'sharp'. Even otherwise, the injuries reflected in the MLC is the laceration over face on right side and the same is 9 x 1 cm in size extended from lateral canthus of right to just above the mandible. Hence, the injury itself shows that the same has lead to permanent disfiguration of the face thus, clearly falling under clause sixthly of section 320 IPC which defines grievous hurt.
22. Hence the above contention regarding wrong application of section 326 IPC is totally misconceived and baseless. As per the victim, the injuries were caused with a sharp object like blade which is an instrument used for cutting. Non recovery of blade from the spot is not of much significance especially when the case is based on the version of injured Arun Kumar vs. State 12/14 CA No. 77/18 victim and the MLC of the injured also corroborates the victim's version that she sustained injuries with a sharp weapon. Hence, in my considered view, Ld. Trial court has rightly convicted the accused for the offence of 326 IPC. From the evidence adduced on record, trial court has rightly concluded that prosecution proved its case beyond all reasonable doubt against the accused.
23. Section 326 IPC prescribes punishment upto life. In the instant case, considering the size of cut wound which is apparently 9 cm long as per MLC, the face of the victim lady has got completely disfigured on account of said permanent cut mark. Further, there was no provocation from the complainant/injured victim at the time of alleged incident. Hence, considering the overall mitigating circumstances, Ld Trial court has already taken a lenient view by sentencing the accused RI for five years and fine of Rs.1 lakh. Even the default sentence of SI of one month awarded to the accused is also very reasonable in my view.
24. Having regard to above said discussion, this court does not find any illegality or infirmity in the impugned judgment or the impugned order of sentence. The appeal is accordingly dismissed. Copy of this judgment be supplied to the appellant as when he applies for the same. Trial Court record be sent back alongwith copy of this judgment with direction to trial court to Arun Kumar vs. State 13/14 CA No. 77/18 take appropriate steps against accused to ensure that he serves the sentence awarded by the trial court and upheld by this court. Appeal file be consigned to Record Room.
Announced in the open court (SUNENA SHARMA)
on 30.01.2019 Additional Sessions Judge-03(South)
Saket Court/New Delhi
Digitally signed
by SUNENA
SUNENA SHARMA
SHARMA Date:
2019.01.31
12:20:32 +0530
Arun Kumar vs. State 14/14
CA No. 77/18