Crl. A. No. 23/2004 Page 1 * HIGH COURT OF DELHI : NEW DELHI Judgment reserved on : February 03, 2010 Judgment pronounced on : February 08, 2010 + Crl. A. No. 23/2004 % Roop Chand @ Lala ... Appellant Through: Mr. Anurag Jain, Advocate versus State (NCT) of Delhi ... Respondent Through: Mr. Amit Sharma, Additional Public Prosecutor for the State CORAM: HON'BLE MR. JUSTICE SUNIL GAUR 1. 2. 3. Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? No. SUNIL GAUR, J. 1. Prosecution of the Appellant for the offence under Section 308 of Indian Penal Code resulted in his conviction and the impugned order sentences him to rigorous imprisonment for three years with fine of Rs.15,000/-. Subject to this appeal, fifty percent of the fine has to go to the injured (PW-2) as mandated by the trial court. Crl. A. No. 23/2004 Page 2 2. The incident is of 28th January, 2003, which had taken place in the evening, near the Bablu Barber Shop in D Blcok of J.J. Colony, in Sector 7 of Dwarka, New Delhi. As the prosecution story goes, upon refusal to pay a petty debt of Rs.100/- there and then, injured (PW-2) was slapped by the appellant/accused. When injured (PW-2) proceeded to make a telephone call to his father, he was attacked by the appellant/accused who came from behind and had hit the injured (PW-2) with some sharpest weapon on the left temple/head near his eye. Injured (PW-2) bled. Police was informed and the injured (PW-2) was removed to the hospital. Upon the statement of injured (PW-2), FIR No. 27/03 under Section 324 of Indian Penal Code was registered at Police Station Dwarka, New Delhi, after an intervening period of two or three days, as the injured (PW-2) because of this injury, was unable to make the statement, due to swollen face. After obtaining the MLC (Ex.PW-5/A), the offence was converted to one under Section 308 of Indian Penal Code. 3. Appellant/accused was arrested in this case and after being charge sheeted, he chose to claim trial for the offence under Section 308 of Indian Penal Code. Trial of this case was short one. Out of six witnesses examined at trial, material ones are the injured (PW-2), Dr. R.K. Mishra Crl. A. No. 23/2004 Page 3 (PW-5), who has proved the MLC (Ex.PW-5/A) of the injured (PW-2) and the Investigating Officer (PW-6). 4. A specific stand was taken by the appellant/accused before the trial court. Appellant/accused had specifically asserted that a brawl had taken place between his father and the injured (PW-2) over payment of money for the tea taken by the injured (PW-2) at the shop of father of appellant/accused. However, Appellant had denied his presence at the place of incident and claimed that he has been framed in this case. Appellant/accused goes further with his story of his father telling him that injured (PW-2) had collided with a lamp post and cable stripes and had injured himself. 5. To support the aforesaid version, appellant/accused had got his father (PW-1) examined in his defence. However, the trial resulted in the conviction of the Appellant which is assailed in this appeal. 6. At the hearing of this appeal, the same very contentions which were made before the trial court have been reiterated on behalf of the appellant/accused. Counsel for the Appellant, instead of meeting the reasoning of the trial court, had persisted with repeating the same very submissions, i.e., about the delay of three Crl. A. No. 23/2004 Page 4 days in recording the statement of the injured (PW-2), of eye-witnesses being not examined and of father of appellant/accused complaining to the police regarding this incident. The last submission advanced was of injury being simple in nature and the offence, if any, committed being under Section 324 of Indian Penal Code and not under Section 308 of Indian Penal Code. 7. Infact, there is no delay in reporting about the incident. The statement of the injured (PW-2) could not be recorded for two - three days, as the injured (PW-2) was not able to speak because his face was swollen due to the injury sustained in this incident. There is no worthwhile cross-examination of the injured (PW-2) on this aspect and so benefit accrues to the appellant/accused. Similarly, there is no cross-examination of the Investigating Officer (PW-3) as to why he had not recorded the statement of the alleged eye-witnesses, who except Bablu Barber were related to the injured. In any case, the reason is not far to seek. It is not the quantity but the quality of the evidence, which matters. Testimony of an injured witness by itself is sufficient to sustain the conviction provided it is found to be reliable. 8. A scrutiny of the evidence of the injured (PW-2) reveals that he has graphically narrated this incident and Crl. A. No. 23/2004 Page 5 in his cross-examination, nothing worthwhile is forthcoming, which could in any manner damage his version of this incident. The defence plea, of Appellant being not present at the spot has not been put to the injured (PW-2), nor it has been suggested to him that the injured (PW-2) had sustained the injury by himself by colliding with the lamp post. This is too far-fetched and does not appeal to reason because no prudent person would invite enmity, just to avoid paying Rs.100/-. Injured (PW-2) has not been confronted with the version of father of the appellant/accused, which is not at all plausible. 9. No doubt, the injury sustained by the injured (PW-2) is simple one, but it was an extensive injury spreading from left eye brow up to left parietal region. 10. There is unchallenged evidence of injured (PW-2) that fifteen stitches were given on his head by the doctor and for few days, he could not speak due to this injury, as his was face was completely swollen. The assault on the injured (PW-2) was by a sharp weapon and without any provocation. Infact, it was pre-meditated one, which imparts seriousness to the offence in question and clearly makes out a graver offence and the Appellant has been rightly tried and convicted for the offence under Section 308 of Indian Penal Code. It has not been shown by the Crl. A. No. 23/2004 Page 6 defence as to how and why the offence committed by the appellant/accused should be scaled down from section 308 to section 324 of Indian Penal Code. 11. I am of the considered view that there is no illegality or infirmity in the impugned judgment and the sentence awarded is also befitting the crime committed and it calls for no interference by this Court. 12. This appeal merits rejection and is accordingly dismissed. Bail bonds of appellant/accused are forfeited. Trial court is directed to take the Appellant into custody to serve out the sentence as awarded by it. 13. Appeal and the pending application, if any, stands accordingly disposed of. Sunil Gaur, J. February 08, 2010 pkb