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State vs Sultani & Ors. on 28 January, 2019

SHAKUN ANAND

28.01.2019 13:12

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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 14th January, 2019
Decided on:- 28th January, 2019

+ Crl.Appeal no. 64/2005

STATE ….. Appellant
Through: Mr. Amit Ahlawat, APP for the
State with ASI Pavinder
Kumar, PS Chandni Mahal.
versus

SULTANI ORS. ….. Respondents
Through: Mr. M.S. Khan, Advocate with
Mr. M.L. Yadav Mohammad
Sajid, Advocates
CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1. The respondents herein (the second respondent having been
mis-described in the memo of parties) were sent up for trial on the
basis of report (“charge-sheet”) under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C) dated 23.05.2001 submitted on
conclusion of investigation into first information report (FIR) no.
170/2000 of police station Chandni Mahal for offences punishable
under Sections 452/354/506/308/34 of Indian Penal Code, 1860 (IPC).
The Metropolitan Magistrate, before whom the charge-sheet was
submitted on 19.07.2001, having taken cognizance and issued process,
the respondents stood summoned and their presence having been
secured, after due compliance with requirements of Section 207

Crl. Appeal No. 64/2005 Page 1 of 22
Cr.P.C. They were eventually brought before the court of Sessions, the
case (sessions case no. 172/2001) having been registered upon
committal. The three respondents were put on trial on the basis of
charges framed on 01.02.2002 for offences under Sections 452/34,
308/34 and 506/34 IPC against each of them, additional charges under
Section 451 IPC and Section 354 IPC having been framed against
third respondent. Upon the conclusion of trial, the Sessions Court
rendered its decision, by judgment dated 25.03.2004, holding that the
respondents were entitled to the benefit of doubts and, thus, directing
them to be acquitted of all charges.

2. The State (the appellant), feeling aggrieved, instituted criminal
leave petition no. 74/2004. Leave was granted, after due notice and
opportunity for hearing to the respondents, by order dated 17.01.2005,
in the wake of which directions, the present appeal (Crl. Appeal no.
64/2005) was registered.

3. Arguments on both sides have been heard at length with the
assistance of the learned counsel and trial court record has been
perused.

4. The case concerns alleged assault on the person of Sabia (PW-

1) by the third respondent Mohd. Aslam (A-3) with the intent to
outrage her modesty sometime around 12 O’clock noon time on
27.10.2000 on the top terrace of property described as No.1530 Chitli
Qabar, Turkman Gate, Delhi. It also involves physical assault on the
person of her husband Mohd. Islam (PW-2) by A-3, and his brother,
the first respondent Sultani (A-1) and nephew second respondent

Crl. Appeal No. 64/2005 Page 2 of 22
Naseem (A-2), iron rod (sariya) having been used therein causing
grievous injury allegedly with the requisite intent and knowledge
thereby committing the attempt of offence of culpable homicide not
amounting to murder, threatening words having been uttered so as to
amount to criminal intimidation, the said offences having been
committed after criminal house trespass on the terrace of the said
property, this part of the incident having occurred immediately and in
continuation of the assault with the intent to outrage modesty of PW-1.

5. Given the issues that arise, it is essential to take note of the
background facts, some of which emerge from the evidence on record,
as indeed the submissions also of the respondents, as undisputed.

6. There is ample evidence to show that PW-1 was living with her
husband (PW-2) in the aforesaid house, the family including Mohd.
Imran (PW-3). The prosecution would also rely on the testimony of
Sarfraz (PW-4) who admittedly is brother of PW-1, he being the
resident of house no. 1945, Street Chunnamal, Suinwalan, Chandni
Mahal, Delhi, a property also located in the walled city area but a little
away from the place where the incident occurred.

7. There is sufficient evidence to show that PW-2 was brought to
Lok Nayak Jai Prakash Narayan Hospital in injured state at 12.30 p.m.
on 27.10.2000 and he being medically examined by Dr. Shikha Mittal
(PW-10/PW-12), senior resident at Guru Nanak Eye Centre where
PW-2 had been referred, the observations on the basis of medical
examination having been recorded in the medico legal injury register
(MLC) (Ex.PW-9/A), the same having been proved by PW-10/12

Crl. Appeal No. 64/2005 Page 3 of 22
without any contest. The MLC (Ex.PW-9/A) also bears an
endorsement in the hand of Dr. Shailley Jain (PW-11), another senior
resident (Ophthalmology) of the same hospital, the evidence of the
said two witnesses read alongside the MLC, revealing that besides a
lacerated wound on the web space between thumb and forefinger of
the left hand, there was a lacerated wound blacking out the right eye of
PW-2, there being fresh injuries suffered in the assault with use of an
iron rod.

8. PW-2, the victim, during the course of his testimony deposed
that his right eye had been “destroyed” and an artificial eye had been
planted in its place. His deposition to this effect, read in the light of
the MLC, both unchallenged on this score, clearly make out a case of
loss of sight in one eye rendering it to be a case of grievous injury, the
only contest being with regard to the role attributed to the respondents,
suggestions given at their instance to the relevant witnesses during
their cross-examination being that the injury might have been suffered
on account of a fall. It may be mentioned here itself that while PW-11
would not give a clear reply as to the possibility of fall being the cause
for such injury, she being unable to do so “without examining the
case”. PW-12 was more in doubt by stating that it was difficult to say
that fall on the ground could be the cause.

9. The initial input came to the police post Turkman Gate of police
station Chandni Mahal in the form of DD no. 14 (Ex.PW-6/A)
recorded at 12.40 p.m. on 27.10.2000. The information had been
conveyed by police control room (PCR) and the intimation was that

Crl. Appeal No. 64/2005 Page 4 of 22
there was a serious quarrel in house no. 1528, Chitli Qabar. The matter
was entrusted to Sub Inspector Kanhaiya Lal (PW-9) who set out for
the place accompanied by constable Nand Lal (PW-13). As per the
deposition of these two witnesses, they had arrived at 1530, Chitli
Qabar where they had learnt that the victim (PW-2) had already gone
to the Lok Nayak Jai Prakash Narayan Hospital. It may be mentioned
here that Guru Nanak Eye Hospital is a specialty in the close vicinity
of the said hospital and when PW-9 arrived there, he had learnt that
PW-2 had been referred to Guru Nanak Eye Hospital. He eventually
met the victim (PW-2) who made statement (Ex.PW-2/A) which
formed the basis of the rukka (Ex.PW-9/B) of PW-9, which was taken
by PW-13 to the police station where, on its basis, the FIR (Ex.PW-
5/A) was recorded at 5.05 p.m., this, in about 5 hours of the alleged
occurrence, the said statement indicating afore-mentioned offences
having been committed.

10. During the course of investigation, PW-9 (the investigating
officer) also recorded the statements of other witnesses as to the
incident and as to various steps in investigation. The witnesses to the
incident included the victim (PW-2), his wife (PW-1), his brother
(PW-3) and brother of his wife (PW-4). The investigating officer also
prepared site plan (Ex.PW-9/C) depicting the layout of the houses in
the vicinity it showing the house (no. 1525) where A-3 would reside to
be virtually the next door, the residences of A-1 and A-2 also being
located close by.

Crl. Appeal No. 64/2005 Page 5 of 22

11. It is stated that during investigation, A-3 got recovered the
sariya (Ex.P-1) which had been used in the crime, it being seized
(Ex.PW-9/F) in the presence of PW-13, this recovery statedly having
been made in the wake of a disclosure (Ex.PW-9/E). The prosecution
also relied on similar disclosure (Ex.PW-7/A) made by A-1. A-3 was
arrested on 07.11.2000, after personal search (vide Ex.PW-9/D). A-2
had been arrested earlier on 04.11.2000 while A-1 was arrested on
29.10.2000 vide formal proceedings (Ex.PW-7/C and Ex.PW-8/A).

12. It is admitted case for the material prosecution witnesses i.e. the
victim (PW-2), and those related to him (i.e. PW-1, PW-3 and PW-4),
that there had been no enmity between the parties in the past. This
admission came out during questioning during cross-examination by
the defence.

13. PW-1 was a young woman, aged about 27 years old, then
working as constable in Delhi Police. On 27.10.2000, around noon
time, she was at home. As per the version of prosecution witnesses,
she had gone upto the terrace of house no. 1530 to spread the clothes
that had been washed for drying up in the sun. According to the
version of PW-1 and PW-2, A-3 had been keeping an evil eye on her
and had earlier also subjected her to indecent propositions including
(statedly by exposing his private parts) by lowering his garment. It is
alleged in the prosecution case that A-3, finding PW-1 on the roof top,
had climbed over to the said terrace and had caught hold of her from
behind, this resulting in she raising alarm. According to the version of
PW-1 and PW-2, the latter (PW-2) was down stairs and, upon hearing

Crl. Appeal No. 64/2005 Page 6 of 22
the alarm raised by his wife (PW-1), he had rushed upstairs to find A-
3 assaulting his wife in the afore-mentioned manner. When PW-2
protested and tried to rescue his wife, A-3 left her alone and instead
started threatening PW-2. It is stated that, upon hearing the
commotion, A-1 also rushed upstairs and joined his brother (A-3). It
is stated in the evidence of PW-1 and PW-2 that A-1 had caught hold
of PW-2 and A-3 had picked up the sariya and hit PW-2 aiming the
blow at his head. PW-1 and PW-2 testified that PW-2 had tried to
ward off the attack and suffered injury on his left palm but A-3 gave
another sariya blow which hit PW-2 in the right eye as a result of
which blood started oozing from the said part of the body. PW-1 has
deposed that A-2 with one Shakeel had also assisted A-1 and A-3 in
hitting the back of PW-2 with a piece of brick, this causing injury on
his leg, all four having fled away with sariya from the scene. PW-2
made a similar statement about the role of A-2, and the fourth person
named Shakeel, though deposing that the brick piece had been used to
hit him on his back. As per these witnesses, the incident was seen by
PW-3 and PW-4, their respective brothers, they having come upstairs
on hearing the commotion. Statements in corroboration were made by
PW-3 and PW-4, though PW-3 during his cross-examination conceded
that he had not seen the incident with his own eyes, he having reached
the place of occurrence after the incident when his brother (PW-2) was
lying on the roof top in injured condition. It is the version of PW-4
that the incident had begun when he was climbing the stairs of the
house of his sister (PW-1) and had rushed to the scene when he had
heard the noise coming from the roof top.

Crl. Appeal No. 64/2005 Page 7 of 22

14. The other prosecution witnesses examined relate to the steps
taken in investigation. They would include head constable Yashpal
Singh (PW-5) who was the duty officer and had recorded the FIR;
constable Sat Narain (PW-6), the official who had recorded the DD
no. 14 (Ex.PW-6/A) on the telephonic call from PCR; constable Paley
Ram (PW-7), who was witness to the arrest of A-1 on 29.10.2000;
Constable Ajab Singh (PW-8), who was witness to the arrest of A-2
on 04.11.2000; these besides the IO (PW-9), his companion constable
Nand Lal (PW-13) and the two doctors (PW-10/PW-12 and PW-11).

15. The respondents in their statements under Section 313 Cr.P.C.
denied the entire evidence as incorrect. They claimed to have been
falsely implicated. It was stated by A-1 and A-3 that the complainant
wanted to occupy the roof of the house of A-3 and on account of such
enmity complaint had been filed by the complainant who was in Delhi
police, apparently referring to PW-1, the wife of the complainant. It
was claimed that house no. 1525, where A-3 was admittedly residing,
was separate from house no. 1530 of the complainant by a 16 feet high
wall and that it was impossible to jump over the said wall from the
other side. A-1 and A-2 claimed that they were not residents of the
house in question and were not present at the scene at the relevant
point of time.

16. Two witnesses, Mohd. Mustkeen (DW-1) and Mohd. Talba
(DW-2), were examined by the defence. The evidence of both was
only to bring home that they had not seen any such incident taking
place, DW-1 also terming the respondents as “good people” having

Crl. Appeal No. 64/2005 Page 8 of 22
good character, he adding that PW-1 was in police and, for this reason,
she must have falsely implicated the accused persons.

17. The trial judge found the evidence of PW-1 to PW-4 not worthy
of reliance. The reasons for this impression, as may be culled out form
the impugned judgment, were as under:-

(i) In the FIR, A-2 and the fourth person named Shakeel had
not been mentioned and yet role was attributed to them in
the supplementary statements and court depositions;

(ii) Neighbours though present at the scene, have not been
examined in corroboration;

(iii) PW-3 tried to project himself falsely as an eye witness
though he conceded in cross-examination that he had not
seen the incident;

(iv) All the four material witnesses (PW-1 to PW-4) are
interested and, therefore, unworthy of reliance;

(v) It is a “mystery” as to how the investigating officer (PW-

9), with accompanying constable (PW-13), had reached
house no. 1530 when the intimation vide DD no. 14
(Ex.PW-6/A) was that the quarrel had taken place in
house no. 1528;

(vi) There is contradiction in the evidence on the issue as to
whether PW-1 had (or had not) accompanied her husband
(PW-2) to the hospital after the incident;

Crl. Appeal No. 64/2005 Page 9 of 22

(vii) The names of the assailants were not disclosed to the
examining medical officer;

(viii) The nature of injuries suffered by PW-2 is not
corroborated by medical evidence;

(ix) The site plan of the place where weapon of offence
(sariya) had been recovered was not prepared;

(x) PW-13 deposed (in cross-examination) that for recovery
of sariya, the investigating officer had gone to house no.
1530 which is the house of the complainant and not of A-

3.

18. The learned additional public prosecutor for the State argued
that the above reasons did not justify the evidence of PW-1 and PW-2,
in particular, being disbelieved especially in the face of clear evidence
that the incident had been reported, not only to the medical authorities,
but also to the police, promptly and without loss of any time. It is his
argument that there is no suggestion given to the material witnesses
about any illicit design of the complainant side to grab any part of the
property of the respondents or this being the cause for setting up this
case. It is also his argument that it is inconceivable that in order to
grab the neighbour’s property a person would inflict injury of such
nature upon himself. It is submitted that depositions of defence
witnesses are inconsequential as merely on account of their
certification that they had not seen any such incident taking place, the
court cannot assume that no such incident ever occurred, this in the
face of credible evidence showing a grave injury having been

Crl. Appeal No. 64/2005 Page 10 of 22
inflicted. It is argued that in the face of admitted defence position that
there was no past enmity, there is no reason why PW-2, having
suffered such serious injury, would falsely implicate the respondents
leaving out the actual perpetrator(s) of the grievous hurt rendering him
permanently blind in one eye. It is pointed out that no suggestion
worth the name has been given to PW-1 and PW-2 to the effect that
the grievous injury had been sustained on account of fall, the hesitant
suggestion given to the medical officers not making out a case for
such defence theory to be believed or acted upon. It is further
submission of the State that the contradictions or the deficiencies in
the evidence as have been noted in the impugned judgment are not
such as can go to the root of the matter so as to extend any benefit of
doubts of false implication.

19. Per contra, the counsel for the respondents argued that the trial
judge has taken a balanced view and such view cannot be discarded or
junked merely because there is possibility of another view being taken
on the basis of some evidence. It was his argument that there was
inordinate delay in reporting the incident, and that an attempt has been
made to rope in persons not mentioned in the FIR, this, according to
him, exposing design to set up a false case, there being no independent
corroboration, the statements of PW-1 and PW-2 in particular being
suspect, it being inadvisable to act upon the depositions of PW-3 and
PW-4 whose presence was not even referred to in the first instance
(the FIR).

Crl. Appeal No. 64/2005 Page 11 of 22

20. While it is well-settled that the appellate court is not to upturn
the conclusions leading to acquittal by the trial court only because
views contrary to such findings could also possibly be drawn [Kallu
Alias Masih vs. State of M.P. (2006) 10 SCC 313], the duty of the
appellate court in matters where the view taken by the trial judge is
found to be unreasonable or perverse goes beyond. In Atambir Singh
@ Chota Babla vs. State of Delhi 2015 SCC Online Del 10734, a
division bench (of which I was a member) of this Court had
summarized the law thus:-

“68. It is well settled and has been the consistent view of
the Supreme Court that in an appeal against acquittal,
the appellate court possesses full and unfettered power to
review at large all evidence and to reach the conclusion
that, upon such evidence, the order of acquittal should be
reversed. It is rather under bounden duty to scrutinize
the probative material de novo. Undoubtedly, it must
bear in mind that rebuttable innocence attributed to the
accused in the case of acquittal stands on a weightier
footing. In this view, it would be slow in upsetting the
findings returned by the trial court if supported by
convincing reasons and comprehensive consideration.
If, however, the view taken by the trial court upon such
review, reappreciation and reconsideration of the
evidence is found to be unreasonable or perverse leading
to serious illegality, the appellate court would not
hesitate in interfering and reaching its own conclusion.
Thus, if the evidence recorded in the judgment of
acquittal shocks the conscience of the appellate court or
shows that norms of legal process have been disregarded
or substantial and great injustice had been done, the
same can be interfered with. [Surajpal Singh v. State,
AIR 1952 SC 52; State of Bombay v. Rusi Mistry, AIR
1960 SC 391; Sanwat Singh v. State of Rajsthan, AIR
1961 SC 715; Jadunath Singh v. State of U.P., (1971) 3

Crl. Appeal No. 64/2005 Page 12 of 22
SCC 577; Damodarprasad Chandrikaprasad v. State of
Maharashtra, (1972) I SCC 107; Shivaji Sahabrao
Bodade v. State of Maharashtra, (1973) 2 SCC 793;
Chandrappa v. State of Karnataka (2007) 4 SCC 415; S.
Ganesan v. Rama Raghuraman (2011) 2 SCC 83;
Jugendra Singh v. State of U.P., (2012) 6 SCC 297;
State of M. P. v. Dal Singh, (2013) 14 SCC 159; and
Mritunjoy Biswas v. Pranab Alias Kuti Biswas Anr.
(2013) 12 SCC Cases 796 ].”

21. Having accorded anxious consideration to the rival contentions
against the factual matrix of the case and in light of the evidence
which was adduced at the trial, this Court finds the judgment of the
trial court to be wholly perverse and totally misdirected. Without
doubt, before convicting a person on the charge of he having
committed a crime, the criminal court must feel satisfied as to his guilt
in its judicial conscience. The proof of guilt, it is well settled, has to
be brought home beyond all manner of doubts. At the same time, it is
equally well settled that it is not any about, or mere doubt, which
would result in acquittal. The doubts of which benefit is given so as
not to hold a person guilty must be one that arises reasonably and such
that goes to the root of the matter rendering suspect the prosecution
evidence showing complicity. The reasons set out in the impugned
judgment to discard the evidence of prosecution witnesses – PW-1 and
PW-2 in particular – do not pass the muster.

22. It does appear that in the initial statement there was no role
attributed to A-2 or to the fourth person named Shakeel. Shakeel, it
may be observed, was not even prosecuted, the investigating agency

Crl. Appeal No. 64/2005 Page 13 of 22
also not being satisfied as to his complicity. But, merely because a
certain role was also attributed to A-2, it does not mean that the entire
version of PW-1 and PW-2 is to be disbelieved.

23. It is trite that FIR is but the starting point of the criminal law
process and is not a document which is expected to be a compendium
of all facts. The incident had occurred at about 12 O’clock noon time.
The injury suffered by PW-2 was very grave in nature, his right eye
having been pierced and he was on the verge of losing the sight in that
eye for all times to come. He had been brought to the hospital within
half an hour. His focus was more on his medical treatment. His
statement was recorded sometime before 4.45 p.m. as is reflected by
the time of dispatch of rukka (Ex.PW-9/B) for registration of the FIR.
Though he had been quite elaborate in narrating the incident,
delineating the role of A-1and A-3, there indeed was no reference to
the acts of commission on the part of A-2. The benefit of such
omission could possibly, and may deservedly, be extended to A-2.
But, this does not mean that the evidence as to the role of A-1 and A-3
should also get effaced.

24. The absence of neighbours from the witness box is
inconsequential. From out of the four witnesses to the scene, there
apparently is no reason to doubt the presence of PW-1 and PW-2.
PW-2 had suffered the injuries and was bound to know, given the time
of the day of the incident, the identity of the perpetrator(s). Since the
sequence of events begins with what concerns PW-1, her presence at
the scene being natural, she being the wife of PW-2 living with him in

Crl. Appeal No. 64/2005 Page 14 of 22
the house below the terrace, there being no evidence to show that she
was elsewhere at that point of time, sufficient corroboration was
available. It is well known even otherwise that public persons who
happen to witness incidents of such nature are generally reluctant to
depose against one side for serving the cause of the other. People
generally tend to maintain neutrality lest involvement as witness
affects them vis-à-vis the opposite side which, as in this case, was also
equally a neighbor.

25. The argument that it was not possible to climb over to the
terrace of the house of the complainant because of a high wall
separating it from the house of the accused is not based on any
material in evidence. The defence witnesses may not have been
present so as to be witness to the scene and, thus, their general
statements as to good character of the respondents are of no effect.

26. PW-3 and PW-4 have been examined as eye witnesses. But, it
was conceded by PW-3 that the incident did not occur in his presence,
he having arrived at the scene immediately thereafter. But, the fact
that he had come on the scene around the time of the conclusion of the
incident will have to be accepted inasmuch as he is the person who
took PW-2 to the hospital where they had arrived within half an hour
of the injuries being inflicted. Be that as it may, owing to the reason
that PW-3 would have reached the scene after the assault had been
committed, PW-4 not even living in the household, he being the
brother-in-law to PW-2, their evidence can be kept aside. This does

Crl. Appeal No. 64/2005 Page 15 of 22
not, however, mean that the testimonies of PW-1 and PW-2 are
rendered unworthy of reliance.

27. It is true that the initial input received through PCR was that the
quarrel had taken place in house no. 1528 and, in contrast, the
investigating officer (PW-9) got the FIR registered on the basis of his
rukka (Ex. PW-9/B) stating that he had reached house no. 1530 to
make inquiries, he eventually meeting the victim (PW-2) in the
hospital whereupon it was confirmed, by his statement (Ex.PW-2/A),
that the assault had occurred on the terrace of house no. 1530. There
is no “mystery” involved in these facts. It is conceded that no
questions were asked to PW-9, or for that matter PW-13, to ascertain
how they had reached house no. 1530 during cross-examination. Be
that as it may, judicial notice is taken of the fact that in walled city
area of Delhi, generally speaking, the municipal numbers are assigned
to the immovable properties consecutively such that even openings
like staircase or door accessible from the public street are allocated
separate numbers. This is reflected even in the site plan (Ex.PW-9/C).
The municipal number 1528 would obviously be close to house
no.1530, both virtually abutting each other, and since the investigating
officer had arrived there soon after receipt of DD no. 14 (Ex. PW-6/A)
at 12.40 p.m., the victim having already been taken to hospital, it
would not have required a very extensive inquiry to find out that the
incident had taken place not in property bearing municipal no.1528
but on the terrace of the next door house no.1530.

Crl. Appeal No. 64/2005 Page 16 of 22

28. It is admitted case of the prosecution, and of the complainant
side, that PW-1 was employed in Delhi Police as constable. Some
argument has been raised on account of such position held by PW-1
during those days. But, being a member of Delhi police force does not
necessarily mean she had such clout that she could engineer a false
case. She was placed too low in the hierarchy to manage or to
influence investigation her way. There is no basis to the defence
theory that she or her husband wanted to grab the property of the
appellants. Such theory being propounded for the first time in the
statements under Section 313 Cr.P.C. does not impress in absence of
supportive evidence.

29. PW-1 may have been a constable in Delhi police. But this does
not mean that the injuries suffered by her husband in her presence
would invariably impel her to accompany him to the hospital for
treatment. She was a young woman from a conservative background.
She is on record to explain that she was devastated on account of the
incident and had fallen down crying and consequently did not go to
the hospital with her husband. Given the seriousness of the injuries
suffered by PW-2, her explanation deserves to be accepted. She is not
to be disbelieved only because some other witness assumed that she
may have gone with her husband to the hospital.

30. It is not correct to criticize PW-2 or PW-3 on account of the
names of the appellants being not disclosed to the examining medical
officer. The purpose of visit to the hospital was to get medical aid and
not to report the crime. For reporting the crime, and action under the

Crl. Appeal No. 64/2005 Page 17 of 22
law in such regard, the police was expected to step in. An intimation
had already been given to police by DD no.14 and the police had
promptly met PW-2 and PW-3 in the hospital. The medical officer
would not have been interested in ascertaining the identity of the
perpetrator of the injuries. There is, however, sufficient corroboration
in the MLC (Ex.PW-9/A) in that in the history it was clearly indicated
by PW-2 and PW-3 that iron rod had been used by neighbours to
cause the wound to the right eye. This was the earliest official record,
purest in its form.

31. The learned trial court did not appreciate the evidence in proper
perspective by observing that the nature of injuries suffered by PW-2
did not have corroboration from the medical evidence. The blunt
injury inflicted in the right eye was duly noted in the MLC (Ex.PW-
9/A). There is an opinion recorded that the injury suffered was
grievous. The deposition of PW-2, as noted earlier, that this injury
had resulted in total loss of right eye, artificial eye having been
planted, has gone unimpeached. In these circumstances, there is no
escape from the conclusion that the injury inflicted was grievous in
nature.

32. The witness (PW-13) who had accompanied the investigating
officer at the time of recovery of sariya (Ex.P-1) had correctly
deposed during his examination-in-chief about the place (house of A-

3) from where it was taken in possession, this being accordingly
reflected in the seizure memo (Ex.PW-9/F). During cross-
examination, he did falter to say that the police had gone to house

Crl. Appeal No. 64/2005 Page 18 of 22
no. 1530 for such purposes. But then, the confusion on his part is
clear from what followed in his deposition, i.e, the house from where
the sariya was recovered is one where number of families were living.
Though, there is no reason to doubt the word of the investigating
officer (PW-9) with regard to the seizure of sariya, it being the settled
law that non-recovery of weapon is inconsequential – Kartar Singh vs.
State GNCT of Delhi 2018 SCC online Del 12247 – this Court is
inclined to keep aside such part of the prosecution evidence. Yet, it
does not materially affect the credibility of PW-1 and PW-2.

33. There has been no delay, muchless inordinate one, in reporting
the incident. At the cost of repetition, it may be noted that the injuries
having been inflicted sometime around noon time, PW-2 had been
brought to the hospital by PW-3 by 12.30 p.m. In the meantime,
information about the incident had been conveyed to PCR which
brought it to the notice of police station by 12.40 p.m. The
investigating officer had met PW-2 in the hospital and recorded his
statement (Ex.PW-2/A) immediately after he being declared fit at 3.45
p.m. and rukka (Ex.PW-9/B) was on its way to the police station by
4.45 p.m., FIR (Ex.PW-5/A) having been recorded at 5.05 p.m. There
perhaps could not have been more prompt registration of the FIR.

34. The promptitude with which the police took note of the crime
deducing the version of the victim, at the earliest opportune moment,
provides the additional assurance that his word, as indeed that of his
wife (PW-1) deserves to be believed and acted upon. After all, there
is no reason as to why they would leave alone the actual perpetrator(s)

Crl. Appeal No. 64/2005 Page 19 of 22
and falsely frame those who were innocent, it being an admitted case
that there was no past enmity of such kind.

35. It does appear that PW-1 was being stalked and illicitly
propositioned by A-3 to the extent of he uttering words to the effect of
demanding sexual favours, indecently exposing himself to her. But, it
is unbelievable that, in order to take revenge for this, she would
persuade her husband to get blinded in one eye so that a false case
could be set up.

36. Small contradictions, it is well settled, do not justify a case
based on credible evidence to be thrown out. Discrepancies that do
not go to the root or that do not shake the basic version cannot be
allowed to demolish the entire case. [Govt. of NCT of Delhi vs. Sachin
@ Suraj Ors 2016 SCC Online Del 6479].

68. This Court is inclined to accept the plea that the evidence as to
complicity of A-2 in the incident has not been brought home beyond
all manner of doubts and there are no reasons why the judgment of
acquittal against him ought to be disturbed.

69. This Court, however, finds the evidence of PW-1 and PW-2 to
be wholly worthy of reliance in so far as the case is directed against A-
1 and A-3. The trial court has unreasonably discarded their evidence
which was not fair. The judgment of acquittal to that extent, being
perverse, thus, must be vacated.

70. This court is satisfied that the prosecution has proved that A-3
had accosted PW-1 on the top terrace of her house around noon time
on 27.10.2000 when she was present there to put the washing in the

Crl. Appeal No. 64/2005 Page 20 of 22
sun. He had climbed on to the terrace with the intent to molest her.
This amounted to a criminal trespass punishable under Section 452
IPC. He caught hold of her with clear intent to outrage her modesty,
this constituting offence punishable under Section 354 IPC. When she
cried out and protested, her husband (PW-2) appearing on the scene,
A-3 was joined by A-1. They (A-3 and A-1) together assaulted PW-2
wherein A-1 was holding on to PW-2 and A-3 had picked up a sariya
using it to inflict the two injuries. In this sequence, however, it cannot
be said that the intention was to cause death or such injuries as were
likely to cause death, there being nothing to show that the blows (with
the iron rod) were designedly aimed, particularly at such part of the
body as was likely to result in injuries that could prove fatal. In this
fact-situation, it would not be permissible to return a finding that the
charge of attempt to commit culpable homicide not amounting to
murder (punishable under Section 308 IPC) had been brought home.
But, there is no doubt that the injuries inflicted were intended and
voluntarily caused by A-3, his brother A-1 acting in his aid and
assistance, his conduct of holding on to PW-2 reflecting he having
shared the common intention. The injuries inflicted included
wounding of the right eye rendering PW-2 permanently blind in that
eye. Since the weapon of offence used in the crime was sariya, the
acts of commission indulged in by A-1 and A-3 constitute the offence
of voluntarily causing grievous hurt punishable under Section 325
IPC, both of them having shared common intention in such regard.

71. The offence under Section 325 IPC being a minor offence, it
being included in the offence under Section 308 IPC within the

Crl. Appeal No. 64/2005 Page 21 of 22
meaning of Section 222 Cr.P.C., A-1 and A-3 can be held guilty and
convicted under Section 325 read with Section 34 IPC even though no
formal charge to that effect had been framed against them.

72. PW-1 and PW-2 were not called upon to depose as to
utterances, if any, made by the respondents at the time of fleeing away
from the scene. Thus, there is no evidence adduced in support of the
charge of criminal intimidation, punishable under Section 506 IPC.

73. In view of the forgoing discussion, the appeal of the State is
partly allowed so as to upturn the impugned judgment dated
25.03.2004 against Sultani (A-1) and Mohd. Aslam (A-3) though
declining to interfere against the acquittal of Naseem (A-2). A-1
Sultani and A-3 Mohd. Aslam are held guilty for the offences
punishable under Sections 452 read with Section 34 IPC and Section
325 read with Section 34 IPC. Additionally, A-3 Mohd. Aslam is held
guilty for the offence under Section 354 IPC. They are convicted
accordingly.

74. The question of punishment shall be considered and decided
upon after hearing both sides on the next date, as is being fixed.

R.K.GAUBA, J.

JANUARY 28, 2019
nk

Crl. Appeal No. 64/2005 Page 22 of 22

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