Delhi District Court
Krishan vs The State on 25 May, 2011
: 1 :
IN THE COURT OF SH. N. K. KAUSHIK
ADDL. SESSIONS JUDGE - 02
DISTRICT COURTS DWARKA ; NEW DELHI
Criminal Appeal No. 31/2011
Date of Institution: 28.04.2011
Date on which Judgment Pronounced: 25.05.2011
FIR No. 91/1993
P.S. Najafgarh
U/s. 323/326/34 IPC
In the matter of:-
1. Krishan
S/o Sh. Rattan Singh
2. Govind
S/o Sh. Ramdhari
Both R/o VPO Jharoda Kalan
New Delhi. ... Appellants
Versus
1. The State
(Govt. of NCT of Delhi) ... Respondent
JUDGMENT
1. This appeal is directed against the judgment and order on sentence Crl. Appeal No. 31/2011 Krishan & Anr. Vs. State page 1 of 9 : 2 : dated 28.03.2011 and 06.04.2011, respectively, vide which, the appellants were convicted and sentenced, for the offences punishable under section 323, 326 IPC read with section 34 IPC.
2. It is alleged that the impugned judgment and order on sentence are contrary to the facts as well as law in this case. That the Ld. Trial Court erred while appreciating the evidence. That there are heavy contradiction in statements of PW-1(PW-9), and PW-8. It is pertinent to observe that PW-1 was also examined as PW-9, perhaps, inadvertently.
3. That PW-2 is completely hostile and has not supported the case of the prosecution. That the Ld. Trial court has not considered the evidence of the doctors, who were examined by the prosecution. That the doctors examined by the prosecution have completely failed to prove the injuries on the person of the injured persons before the Ld. Trial Court. That the statements of the police officials has wrongly been appreciated. That no recovery of knife was effected from the appellants. That PWs were recorded before framing of charge and only PW-8 was recorded, thereafter. Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 2 of 9 : 3 :
4. That under the circumstances, the appellants were entitled to be acquitted but have wrongly been convicted by the Ld. Trial Court. It is, therefore, prayed that the impugned judgment and order on sentence be set aside.
5. All these contentions have strongly been countered on behalf of the State and it is stated that there is no infirmity and illegality in the order on sentence. That the case was squarely proved by the prosecution witnesses, especially, by the injured PW-1(PW-9) and PW-8.
6. I have carefully gone through the entire relevant material appearing on record and have considered the contentions raised by the parties. My findings are as under:
7. The allegations against both the appellants were that on 11.04.1993 at or near Jharoda Police Booth, Najafgarh, both the appellants in furtherance of their common intention voluntarily caused simple hurt on the person of injured Harbir and that they also caused grievous and dangerous injuries to injured Jagdish with sharp edged weapon i.e. knife.
Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 3 of 9 : 4 :
8. After the challan in the case was filed, charge under section 323 and 326 IPC read with section 34 IPC was made out against the accused persons-appellants herein and charge, accordingly, was framed against them. The appellants pleaded not guilty and claimed the trial.
9. The prosecution examined nine witnesses, out of which two of the witnesses were injured, namely, Jagdish and Harbir.
10. PW-1, Jagdish was also examined as PW-9, perhaps, inadvertently.
PW-2, Ct. Pawan Kumar, PW-3, Head Ct. Jai Narain, PW-10, Ct. V.P. Sanjhi, PW-7, S.I. Tirath Singh and PW-5, Head Ct. Hukum Singh were examined as the police officials.
11. PW-4 Dr. Shalab Kumar was examined and he proved MLC in respect of injured Harbir. The said MLC is Ex.PW-4/A. The MLC of injured Jagdish was also proved by him as Ex.PW-4/B. PW-6, Dr. Shabnam Bhandari proved X-ray report Ex.PW-6/A and Ex.PW-6/B, in respect of the aforesaid injured persons. Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 4 of 9 : 5 :
12. Both the appellants were examined under section 313 Cr.P.C. and they opted not to lead evidence, in defence.
13. The Ld. Trial Court after appreciating the evidence on record concluded that the prosecution has established its case, as alleged.
14. From the record, it is evident that PW-9 was cross-examined, at length, by the defence, but nothing turned out in his cross- examination doubting his credentials and the version proved by him.
15. The Ld. Trial Court has quoted portion of the cross-examination of this witness in para 14 of the impugned judgment indicating as to how the offences alleged against the appellants stood substantiated and nothing could be demolished by the defence. It stood established before the Ld. Trial Court that the injured were present at the spot.
16. The testimony of PW-9 is corroborated by other prosecution witnesses. PW-7 IO of the case has also fully corroborated the story of the prosecution.
Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 5 of 9 : 6 :
17. PW-8 has not supported the case of the prosecution but it is well settled that whole of the evidence rendered by a hostile witness is not to be excluded or becomes unworthy of consideration. It is to be evaluated with its intrinsic value.
18. It is also well settled that conviction can be recorded on the basis of a solitary eye witness and especially when the said witness is injured himself. It is most unlikely that an injured would spare the real culprits and implicate an innocent person falsely. Further, no enmity of the injured with the appellants was asserted or proved on record.
19. In this case, PW-9 Jagdish was also examined as PW-1, who has fully proved the case of the prosecution. His version is duly corroborated by the doctor PW-4, who has proved MLC in respect of both the injured.
20. The nature of injury opined as dangerous was not impeached in this case. The X-ray plate in respect of both the injured also stood proved on record unchallanged and were proved by PW-6. The testimony of PW-4 and PW-6 goes unchallanged on record. Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 6 of 9
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21. Thus, the testimony of PW-9, PW-4 and PW-6 could not be
discarded by the Ld. Trial Court. Their testimony are credible and inspire confidence. There is nothing on record to show as to why their testimony should be thrown out.
22. The prosecution, therefore, squarely proved before the Ld. Trial Court the allegations of having inflicted simple hurt and dangerous/grievous hurt with sharp edged weapon by the appellants herein upon the vital parts of the body of the injured persons.
23. Almost all the relevant contentions, which have been raised in this appeal, have been competently dealt with by the Ld. Trial Court. There is no reason available on record to find fault with the conviction recorded by the Ld. Trial Court. The same is, hereby, affirmed and confirmed.
24. Now, I come to the point of sentence. The Ld. Trial Court has awarded rigorous imprisonment for two months alongwith fine of Rs. 200/-, in default two days SI, for the offence punishable u/s 323/34 IPC and RI for two years alongwith fine of Rs.1000/- each, in default Crl. Appeal No. 31/2011 Krishan & Anr. Vs. State page 7 of 9 : 8 : 10 days SI for the offence punishable u/s 326/34 has been imposed.
25. The Ld. Trial Court has already taken the most liberal view. The offence punishable under section 326 IPC is quite serious and attracts much more severe punishment.
26. On the face of it, the imprisonment awarded for the offence punishable under section u/s 326 IPC read with section 34 IPC by the Ld. Trial court is quite inadequate but since the State has not come forward to challange the same, I would not like to interfere with the same.
27. The order on sentence, therefore, also do not call for any interference and, is hereby, upheld.
28. In view of the above discussion, the appeal being devoid of merit, is hereby, dismissed.
29. Steps be taken to ensure that the sentence imposed upon the appellants is executed, forthwith.
Crl. Appeal No. 31/2011
Krishan & Anr. Vs. State page 8 of 9 : 9 :
30. A copy of the order alongwith trial court be sent to the Ld. Trial Court, forthwith.
31. Appeal file be consigned to record room. ANNOUNCED IN OPEN COURT ON 25th of May, 2011 (N. K. KAUSHIK) ADDL. SESSIONS JUDGE - 02 DWARKA DISTRICT COURTS, DELHI/25.05.2011 Crl. Appeal No. 31/2011 Krishan & Anr. Vs. State page 9 of 9