HARI OM Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) Hari Om (the appellant) challenges the legality and correctness of a judgment dated 30.03.2010 in Sessions Case No.118/07 arising out of FIR No.153/06 registered at Police Station New Usmanpur by which he was convicted for committing offences under Section 452/308 IPC. By a sentence order dated 31.03.2010, he was awarded RI for two years under Section 308 IPC and RI for one year with fine Rs. 30,000/- under Section 452 IPC. Both the sentences were to operate concurrently. Rs. 25,000/- were to be paid to the victim as compensation out of the fine of Rs. 30,000/- on realization.

(2.) Allegations against the appellant in the charge-sheet were that on 29.04.2006 at 1.30 a.m. at House No.G-183, Maharani Gali No.3, Jagjeet Nagar, Delhi, he inflicted injuries by an iron rod on the head of the complainant-Hari Gopal after committing house trespass. Daily Diary (DD) No. 29/A (Ex.PW-8/A) was recorded at Police Station New Usmanpur at 1.40 night on getting information about the quarrel. Hari Gopal was taken to Guru Teg Bahadur hospital, Shahdara, soon after the occurrence and the MLC (Ex.PW-9/A) records the arrival time of the patient as 02.45 a.m. The investigating officer lodged First Information Report after recording complainant's statement (Ex.PW-2/A) by making endorsement (Ex.PW-3/A) on 29.04.2006 at 09.30 a.m. In the complaint, the victim implicated Hari Om for causing injuries on his head by an iron rod. He further gave detailed account as to how and under what circumstances the accused, who was under the influence of alcohol entered the house while armed with an iron rod and inflicted injuries to him. While appearing as PW-2 in Court statement, he proved the version given to the police at the earliest without any variation. He deposed that on the night intervening 28-29.04.2006 at around 01.30 a.m. when he was sleeping in the courtyard of the house, the accused knocked the main door. After entering inside the house, he asked him why he was not selling eggs to him and uttered 'Ab main tuje maja chakhaunga." The accused was carrying an iron rod about 2 1/2 feet in size and hit on his head as a result of which he sustained injuries and was taken to hospital by the police where his statement (Ex.PW-2/A) was recorded. He identified the iron rod (Ex.P-1) used in the crime. Despite opportunities given, the appellant did not opt to cross-examine the witness. The testimony of the victim, thus, remained unchallenged and unrebutted. PW-1 (Bharat Singh), complainant's son, deposed on similar lines and corroborated the version of his father in its entirety. He stated that on hearing a noise at around 01.30 a.m. from the courtyard, he got up and saw the appellant-Hari Om quarrelling with his father. Before he could reach the spot, he gave an iron blow on the head of his father. The accused was heavily drunk. The accused did not cross-examine the witness on 03.05.2007 and 2.2.2009 despite opportunities given. The facts proved on record remained unchallenged. The accused did not attribute any specific ulterior consideration to the witnesses to make false statements and to implicate him in the incident. The accused was also taken to GTB hospital and was medically examined vide MLC (Ex.PW-9/B) which confirm his presence at the spot. The accused did not explain as to how and under what circumstances he happened to enter inside the complainant's residence without any specific purpose at odd hours. The ocular evidence is in consonance with medical evidence. PW-9 (Dr.M.Das) proved MLC (Ex.PW9/A) of the victim prepared by Dr.Rajni. As per the MLC, the injured had lacerated wound over right parietal region measuring 5 cm x .5 cm. PW-10 (Dr.M.Momin) proved endorsement of Dr.Sandeep Rai on the MLC (Ex.PW9/A) where the nature of injuries was opined 'grievous'. Recovery of crime weapon (Ex.P-1) from the possession of the accused further connects him with the crime. As per MLC (Ex.PW-9/B), the appellant was found to have consumed liquor. There was no occasion for him to enter inside the house of the complainant/victim while under the influence of liquor during night hours when both PW-1 and PW-2 were sleeping in the house. The motive assigned to inflict injuries was that the complainant had declined to sell eggs to him. The accused did not give plausible explanation to the incriminating circumstances put to him under Section 313 statement. DW-1 (Amar Singh) and DW-2 (Kishan Pal) are not witnesses to the occurrence and have given general statement about the good character and nature of the appellant. In the absence of prior animosity or ill-will, the victim and his son are not expected to falsely implicate an innocent and let the real offender go scot free. The findings of the trial court are based upon fair appraisal of the evidence and warrant no interference.

(3.) Appellant's counsel in the alternative prayed to modify the sentence order as the appellant has already undergone substantive sentence of about eight and a half months and is not a previous convict.