Crl.A. Nos.285/2011, 513/2011 & 897/2011 Page 1 of 17

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CRL.A. 285/2011

Date of Reserve: 07.10.2015

Date of decision: 15.10.2015

RAM KUMAR PATHAK

..... Appellant

Through:

Mr.K.K.Sud, Sr.Advocate with

Mr.Pranshu Dhingra, Advocate.

versus

GOVT. OF NCT OF DELHI

..... Respondent

Through:

Ms.Rajni Gupta, APP.

ASI Devender Kumar, P.S.Uttam

Nagar.

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CRL.A. 513/2011

DURVESH SINGH

..... Appellant

Through:

Mr.Akhilesh Kr.Pandey, Advocate.

versus

STATE & ORS

..... Respondents

Through:

Ms.Rajni Gupta, APP.

ASI Devender Kumar, P.S.Uttam

Nagar.

+

CRL.A. 897/2011

SHOBRAN PAL AND ORS

..... Appellants

Through:

Mr.Firaj Khan, Advocate.

versus

GOVT. OF NCT DELHI

..... Respondent

Through:

Ms.Rajni Gupta, APP.

ASI Devender Kumar, P.S.Uttam

Nagar.

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Crl.A. Nos.285/2011, 513/2011 & 897/2011 Page 2 of 17

ASHUTOSH KUMAR , J.

1.

All the appeals have been heard together and are being disposed

of by this common judgment.

2.

Ram

Kumar

Pathak,

(appellant

in

Criminal

Appeal

No.285/2011), Shobran Pal and Ramesh Pal (appellants in Criminal

Appeal no.897/2011) have challenged the judgment and order of

conviction dated 11.02.2011 and 15.02.2011 passed by the learned

Additional Sessions Judge (North-West-04), Rohini, Delhi, in

Sessions case no.75/2009, arising out of FIR No.807/2006 (PS Uttam

Nagar), whereby they have been convicted under Sections 308/34 of

the IPC and have been sentenced to undergo Rigorous Imprisonment

for four years, fine of Rs.7,000/- and in default of payment of fine, a

further Simple Imprisonment of 7 months, with the benefit of Section

428 of the Code of Criminal Procedure (for short „Cr.P.C.‟) accruing

to them.

3.

Durvesh Singh (appellant in Criminal Appeal No.513/2011),

has on the other hand, challenged the judgment on the ground that

from the evidence adduced during the course of trial, the accused

persons ought to have been convicted under Section 307/34 of the IPC

and not under Section 308/34 of the IPC.

4.

Durvesh Singh has also questioned the adequacy of the sentence

imposed upon the accused persons.

5.

The appellants have questioned the correctness of the impugned

judgment and order of conviction on the ground that the Trial Court

has thrown to the winds the accepted canons of appreciating evidence

Crl.A. Nos.285/2011, 513/2011 & 897/2011 Page 3 of 17

and has completely ignored serious contradictions in the statements of

the witnesses which tantamounts to a total departure from the

prosecution version. The impugned judgment has been assailed on

further grounds namely; (i) non-examination of any independent

witness to the occurrence; (ii) completely shutting out the evidence of

two witnesses offered on behalf of the defence; and (iii) also the fact

that the injury report was not proved by the Doctor who wrote the

report and thus there being no material to suggest that Durvesh Singh

(PW.3) was injured in the occurrence and in the manner in which the

appellants are alleged to have assaulted him.

6.

Durvesh Singh (PW.3), during the Trial, has supported the

statement given by him before the police on 03.09.2006 (Ex.PW.3/A)

and has testified to the fact that on the day of the occurrence, all three

appellants (Ram Kumar Pathak, Shobran Pal and Ramesh Pal)

assaulted him by means of hockey sticks and dandas. He has deposed

that at the relevant time he was an employee of Jagdamba Gas Agency

at Keshav Pur Depot, where the appellant Ramesh Pal also worked as

supplier of gas cylinder to the customers. Ramesh Pal was harbouring

a grudge that perhaps because of PW.3, he was removed from the

service of Jagdamba Gas Agency. The appellant Ramesh Pal had

threatened