Delhi District Court
(2) Dharmender S/O Late Sh. Paras Ram vs The State (N.C.T. Of Delhi) on 22 January, 2010
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Appeal No. 72/08/04
(1) Kamal Kishore @ Kallu
S/O Sh. Dharamvir Singh
R/o T-98/14, Chirag Delhi
New Delhi
(2) Dharmender S/O Late Sh. Paras Ram
R/O 95/2,Chirag Delhi
New Delhi-110017 ........Appellants
Vs
The State (N.C.T. of Delhi) ........Respondent
Date of Institution in
Sessions Courts 16.12.2004
Date of institution in this court 21.10.2008
Date when arguments
were heard 20.01.10
Date of Judgment 22.1.2010
JUDGMENT
This appeal is filed jointly by the two appellants challenging the judgment of conviction dated 30.09.04 by which they were convicted U/s. 323/326/34 IPC. By the subsequent order on sentence passed on 2 15.10.04, the appellants were sentenced U/s 324/34 IPC to undergo rigorous imprisonment for one year each and for the offence U/s. 326/34 IPC, they were sentenced to undergo two years rigorous imprisonment and a fine of Rs.1000/- each in default to undergo simple imprisonment for one month. It was also directed that both the sentences shall run concurrently. BRIEF FACTS The allegations against the appellants in the police challan filed against them are that on 10.03.01 at 2 PM near Ravi Dass College, Chirag Delhi, they both along with in furtherance of their common intention caused simple hurt by sharp weapon to complainant Kanwal Kishore and grievous hurt by sharp weapon to the injured Jitender.
CHARGE AND PLEA OF THE ACCUSED PERSONS Prima facie a case for the offences u/s 324/34 IPC and U/S 326/34 IPC was found made out against the appellants by Ld. trial court. They were charged accordingly for the said offences on 09.12.02 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined nine witnesses 3 in all namely PW 1 Constable Ranbir Singh, PW 2 Kamal Kishore, PW 3 Jitender, PW4 Head Constable Banwari Lal, PW 5 Vijay, PW 6 Dr. Safia Rana and PW 7 Dr. Sushma Rani, PW8 Dr P.S. Uppal and PW9 Retired Sub Inspector Mangoo Lal.
PLEA AND DEFENCE OF APPELLANTS/ACCUSED PERSONS In the statement U/S 313 CrPC, the appellants/accused persons have denied the prosecution case and have stated that it is a false case and they pleaded that their cousin Mamta was going towards the house of their maternal uncle. Hitesh, Parvesh, Anil, Ravi, Johny @ Kamal Kishore, Raj Kumar and Bharat tried to throw gulal on her to which she raised objection but they threw it despite her objection and they reached there and after hearing her voice and rescued her. Their sister was kicked by the aforesaid persons and she was pregnant at that time and these persons gave fist blow and threw her on ground and started quarelling with her and accused persons. Appellant/accused persons stated that they did not cause injuries to the two injured and have been falsely implicated in the case.
4
In their defence, the appellant/accused persons have produced DW 1 Smt. Mamta who gave statement in their favour and has proved that she was medically examined because of the injuries sustained by her and proved the copy of the casualty card of AIIMS Hospital Ex.DW 1/A. I have heard ld. counsel for the appellant, Ld. Addl. PP for the State and have gone through the record of the case.
In this joint appeal, the finding of the conviction recorded by Ld. Trial Court passed on the basis of unrebutted and unchallenged evidence of PW 2 Kamal and PW 3 Jitender, the injured persons as they were not cross-examined on behalf of the accused persons. What is challenged is the conviction of the appellants for the offences U/S 324/326/34 IPC?
The injury on the person of the injured PW 3 Jitender are proved as grievous injuries with sharp edges weapon as per his MLC Ex. PW 6/A and the injuries on the person of Kamal Kishore are proved to be simple with sharp edged weapon as per his MLC Ex. PW 7/A proved by the doctor. What is important to note is that the plea taken by the appellants/accused persons in their statement U/s. 313 CrPC is that the injured persons along with their companions tried to throw gulal and have injured their cousin Mamta. She was pregnant and sustained injuries at the hands of the complainant party. The said Smt. Mamata was examined as defence 5 witness DW 1 and has proved the statement/plea of defence of the accused persons taken in their statement U/S 313 CrPC that the injured persons and their companions wanted to throw gulal on her and have attacked her when she was four months pregnant and have also beaten her. She has proved the casualty card Ex. PW 1/A of the AIIMS hospital in support of her statement.
Therefore, keeping in view the prosecution evidence on record and plea of defence of accused persons, it appears that since the complainant party including both the injured PW 2 Kamal and PW 3 Jitender had injured the pregnant Mamta, the cousin of the accused persons and they were playing Holi with her against her wishes, there was grave and sudden provocation caused to the accused persons which seems to have led them to cause injuries on the person of PW 2 Kamal and PW 3 Jitender . In these circumstances, Ld. Trial Court should have recorded the conviction of the appellants and co accused U/s. 334/335 /34 IPC instead of U/s. 324/326/34 IPC.
RESULT OF JOINT APPEAL In view of the above, the appeal is partially allowed. The conviction of the appellants recorded by the Ld. Trial Court Under Sections 324/326/34 IPC is altered to one under Sections 334/335/34 IPC. Since no previous conviction is recorded against the convicts who have suffered 6 agony of trial and faced proceedings in the appeal for a total period of about six years and further keeping in view the facts and circumstances and other mitigating circumstances that the injured persons as per MLC was found to have consumed liquor, the sentence awarded to appellants by Ld. Trial Court is setaside and instead of sentencing the appellants at once of any punishment, they are directed to be released on their entering into personal bonds in sum of Rs.15,000/- each with one surety each in the like amount and to appear and receive sentence when called upon during the period of one year as this court may direct and in the mean time to keep peace and be of good behaviour. The trial court record along with copy of this order The order be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 22/1/2010 (S.K. Sarvaria) Addl.Sessions Judge- 01/South Patiala House Court New Delhi