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Umesh Kumar vs The State (Nct Of Delhi) on 2 December, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. A. 1093/2019
Reserved on : 19.11.2019
Date of Decision : 02.12.2019

IN THE MATTER OF:

UMESH KUMAR … Appellant
Through: Mr. Archit Upadhayay (DHCLSC)
Versus

STATE (NCT OF DELHI) … Respondent
Through: Ms. Manjeet Arya, APP for State
with ASI Praveen Kumar, P.S.
Anand Parbat
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present appeal has been filed assailing the judgment of
conviction dated 02.08.2019 and order on sentence dated 02.08.2019
passed by the Addl. Sessions Judge in FIR No. 430/2016 registered under
Sections 308/354B/354/323/506 (Part-I)/509 SectionIPC PS Anand Parbat.

2. The appellant was convicted and sentenced to undergo SI for 6
months for the offence punishable under Section 323 IPC and SI for 1 year
for the offence punishable under Section 354 IPC. It was directed that
both the sentences would run concurrently. The benefit of Section 428
Cr.P.C. was also awarded by the trial court.

3. The facts of the case, as noted by the trial court, are reproduced
below:-

CRL. A. 1093/2019 Page 1 of 7

“2. The translation of the statement of the complainant
Soni Ex.PW3/A on the basis of which the case has been
registered is reproduced as below: –

“I am residing at CN-178, Punjabi Basti, near Gumband,
Gali no.3, Baljeet Nagar, Delhi. My sister Sunita and jija
Umesh also reside with me in the said house. My sister
Sunita and jija Umesh are residing separately for the last
about two years and Umesh used to harass my sister. On
14.09.2010, I along with my sister were sleeping in the
house and at about 11:30 pm, Umesh came there and
started quarrelling with my sister Sunita. Upon our
objection and asking him to leave the place, he started
abusing and used filthy language. He became furious and
started beating my sister with iron chain on her head;
blood started oozing from her head and she fell down but
he continued gave beatings to her. I tried to save Sunita
upon which he caught hold of me and torn my suit, pulled
me towards him and punched me on my face and chest.
Thereafter, he left the spot and I called the PCR on 100
number who took us to the hospital. No complaint was
made on the day of incident being the family matter. Again
on 17.09.2016, Umesh came to the house and started
abusing and threatened to kill us and thereafter, this
complaint was made.”

3. Upon receiving PCR call vide DD No.38A dated
14.09.2016 regarding quarrel, SI Manish Kumar along
with Ct. Ratan reached at the spot i.e. CN-178, Gali No.3,
Punjabi Basti, Baljeet Nagar, Delhi where they came to
know that injured has already been taken to Hospital by
PCR Van. In the meantime, upon receipt of telephone call
from the Duty Officer, it was informed that injured had
been admitted to Lady Hardinge Hospital. PW9 SI Manish
Kumar thereafter reached the hospital and collected the
MLC of the injured persons i.e. Soni, Sunita and Umesh
(accused); Soni and Sunita did not give their statements
being the family members as Umesh was husband of
Sunita.

CRL. A. 1093/2019 Page 2 of 7

On 17.09.2016, complainant Soni made complaint
regarding the incident vide her statement Ex.PW3/A
recorded by W/Ct. Pinki (PW5) which was endorsed by
PW9 SI Manish Kumar vide his endorsement Ex.PW9/A
and FIR was registered vide Ex.PW2/A after making the
endorsement on rukka Ex.PW2/B by PW2 H.Ct. Shri
Krishan. PW9 SI Manish Kumar came back at the spot and
prepared the site plan Ex.PW9B and recorded the
statement of other witness Sunita. On 20.09.2016, accused
was arrested vide arrest memo Ex.PW8/A; his personal
search was conducted vide memo Ex.PW8/B. The accused
has also pointed out the place of occurrence vide pointing
out memo Ex.PW8/C. On 21.09.2016, statement of
complainant Soni under Section 164 Cr.P.C. was
recorded. After the completion of investigation, charge
sheet was filed in the court on 20.07.2017.”

4. On 04.12.2017, charge was framed under the aforesaid sections of
the FIR. The appellant pleaded not guilty and claimed trial. During trial,
the prosecution examined total 8 witnesses.

MATERIAL WITNESSES

5. Soni, the complainant/injured was examined as PW3. She is the
sister of Sunita, who is the wife of the appellant. She deposed that in the
year 2016, at about 11:30 pm, she was present at the house of her sister,
who was ill. At that time, the accused had beaten her with iron chain and
while she tried to save her sister, the appellant pulled her dupatta and put
his hand on her breast. The appellant had inflicted injuries on the head of
her sister as a result of which blood started oozing out. She dialled number
100 and police arrived and took them to hospital. She further deposed that
the appellant while trying to run away, fell down and got injured. He was
also treated in the same hospital. She was cross-examined by the learned
Additional PP for the State. During her cross-examination, she admitted

CRL. A. 1093/2019 Page 3 of 7
that the incident occurred on 14.09.2016. She also admitted the place of
the incident, which was the house where her sister was residing with the
appellant. She also admitted that while she was trying to save her sister,
the appellant tore her suit and pulled her towards himself. When she
objected, the appellant gave punch blows on her face and breast and also
threw her on the floor. She also admitted that the appellant had given
multiple blows with iron chain on the head of her sister and they were
taken to Lady Hardinge Hospital by the police. She also admitted that since
it was a family dispute, they did not give any statement to the police on
that day but two days later, i.e., on 17.09.2016, when she was present at
her sister’s house, the appellant again abused and threatened to kill them
following which they made a complaint to the police. Her statement
recorded under Section 164 Cr.P.C. was exhibited as PW3/B. During her
cross-examination by the counsel for the accused, her testimony remained
unimpeached.

6. Sunita, the wife of the appellant, was examined as PW4. She
deposed that on 14.09.16, she along with her sister and daughters were
present at her house when the appellant came and during the course of
arguments with her, hit her on the head with an iron chain because of which
blood started oozing out. The appellant also quarrelled with her sister and
tore her clothes and fled away. Her sister called police on 100 number,
who then took them to hospital. She also stated that she got 14 stiches on
her head. After 2-3 days, the appellant again came to her house and created
a scene. The witness was cross-examined by learned Additional PP for
the State. She admitted that the appellant had initially abused her and
when her sister objected the same, he gave multiple blows on her head
with an iron chain. While her sister was trying to save her, the appellant

CRL. A. 1093/2019 Page 4 of 7
tore her suit and forcibly pulled her towards himself and also gave punch
blows on her face and breast. She admitted that the appellant had again
come to their house on 17.09.16 and started abusing and threatening them.
During cross-examination by the learned counsel for the accused, she
admitted that a cross case under Sections 324/Section323/Section341 IPC was registered
against her at the instance of the appellant.

7. Dr. Kshitij Kumar Singh, SR Surgery, Lady Hardinge Medical
College, Delhi was examined as PW 6. MLC of Sunita and the appellant
was exhibited as Ex. PW6/A and PW6/C respectively. He identified the
signatures of Dr. Hari at point A, who, by then, had left the services of the
hospital. As per the endorsement on the MLC, the patient i.e. Sunita had
suffered head injury mentioned as one CLW over parietal region of size 3
x 0.5 cm and another CLW present over right parietal region of size 2 x
0.5 cm. The injuries were opined to be simple. The witness also identified
the signatures of Dr. Hari on the MLC of the appellant. As per the MLC
of the appellant, the appellant had suffered an injury on his head of the size
3 x0.5 cm and abrasion present over parietal region of the head. The
witness was not cross-examined on behalf of the appellant.

8. Dr. Munesh, CMO, Lady Hardinge Medical College, Delhi was
examined as PW7. He exhibited the MLC of Soni (Ex.PW7/A) and
identified the signatures of Dr. Sindhu who had prepared the said MLC.
The nature of injuries was opined to be simple. The witness was not cross-
examined on behalf of the appellant.

9. I have heard Mr. Archit Upadhyay, learned counsel for the appellant
as well as Ms. Manjeet Arya, learned APP for the State and also gone
through the records of the case.

CRL. A. 1093/2019 Page 5 of 7

10. Learned counsel for the appellant has contended that there are
variations between the statements of the witness Soni, as to when the call
to the PCR was made. He has referred to DD No. 38A as well as the
statement of the witness recorded by the police during the investigation. I
do not find any merit in this contention as the appellant has neither denied
the incident nor raised any doubt about the MLC of the witness as well as
his own MLC. As per the admitted case, both the witnesses as well as the
appellant were injured in the incident dated 14.09.16. The appellant and
the injured witnesses were admitted in the same hospital around the same
time. Their MLCs were duly proved and exhibited by PW6 and PW7. The
appellant had chosen not to even cross-examine the aforesaid medical
witnesses or had disputed his own MLC. The appellant at the time of his
statement recorded under Section 313 Cr.P.C., while answering question
no. 5 admitted that police had taken the appellant as well as PW3 and PW4
to the hospital. While answering question no. 18 and 19, he admitted that
he had received injuries on the occipital region of his head and was
medically examined in the Lady Hardinge Hospital by Dr. Sindhu.

11. A perusal of the deposition of the complainant and her sister would
show that in their cross-examination, no question was put with respect to
allegation of Section 354 IPC. Learned counsel for the appellant has
contended that there are material inconsistencies in the statement of the
witness, Soni. He has submitted that in her statement to the Police, the
witness has stated about tearing of suit but in the statement recorded under
Section 164 Cr.P.C., dupatta was mentioned. It is significant that the
appellant had not cross-examined the witness on these aspects at all. A
perusal of the statement of the witness, Soni shows that she was consistent
in all her statements about tearing of suit and pressing / punching her

CRL. A. 1093/2019 Page 6 of 7
breast. Even in her statement recorded under Section 164 Cr.P.C., the
witness has stated about pressing of her breast. I do not find the variations
to be of material nature. No other argument was raised on behalf of the
appellant.

12. In view of the above discussion, I find no infirmity in the conclusion
reached by the trial court. The appeal filed by the appellant is dismissed.
Consequently, the conviction as well as sentence of the appellant as
handed down by the trial court is upheld.

13. Copy of this judgment be communicated to the trial court as well as
to the Jail Superintendent for information and necessary compliance.

(MANOJ KUMAR OHRI)
JUDGE
DECEMBER 02, 2019
na

CRL. A. 1093/2019 Page 7 of 7

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