* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21.03.2014
+ CRL.A. 43/2010
PRAKASH MALI @ DABBI ..... Appellant
Through: Mr. Sushil Ahuja, Adv.
versus
STATE OF DELHI ..... Respondent
Through: Mr Feroz Khan Ghazi, APP
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
JUDGEMENT
V.K. JAIN, J.
On 23.11.2004, at about 11.45 PM, Duty Constable Rajinder informed Police Station Patel Nagar on telephone that Sushil Chand, resident of Z-19, West Patel Nagar, Delhi had been brought by his wife to the hospital, after he had been injured in a quarrel. The information was recorded vide DD No. 67B and the copy of the said DD was given to ASI Kanhiya Lal for investigation. The aforesaid police officer reached house No.Z-18, West Patel Nagar, where Head Constable Karan Singh was present. No eye- witness met him on the spot. He then went to RML Hospital, where Sushil Chand was found admitted. He was not fit for statement. His wife Smt. Crl. A. No.43/2010 Page 1 of 10 Kamlesh, however, was present there. Her statement was recorded by the police officer. She told him that on 22.11.2004, at about 10.30 PM, a quarrel had taken place between Prakash Malik who was previously known to her and some other persons in which her husband Sushil Chand Goyal had intervened. Thereafter, Prakash Malik had threatened her husband. At about 8.00 AM, Prakash Malik came outside their house and exhorted her husband to come out. He, however, left after some time. The complainant further stated that at about 10.00 PM on that day¸ one person namely, Sharma, who was known to her since he used to visit their shop, came to their shop and enquired about her husband. In the meanwhile, her husband came there and asked the aforesaid persons as to what the matter was. Mrs Sharma thereupon took her husband aside, towards urinal. The complainant at that stage noticed Prakash Malik with Mr Sharma. After about 5-7 minutes, Sharma came to their shop with her husband and asked her to take care of him and left. She found her husband bleeding from the left thigh and left side of the stomach. He told her that Prakash Malik had given knife blows on his thigh and stomach, while he was held by Sharma. She brought her husband to RML Hospital in the car of her neighbour Ajay Kumar. On her statement, an FIR under Section 307 of IPC was registered. Crl. A. No.43/2010 Page 2 of 10
2. During the course of investigation, the appellant Prakash Malik was arrested and he allegedly got recovered a knife from near Vivek Cinema Bus Stand, near Metro Station. The aforesaid knife was found stained with blood. The other accused Narender Kumar Sharma was also arrested and both Prakash Malik as well as Nareinder Kumar Malik were charge-sheeted under Section 307/34 of IPC.
3. Both the accused were charged under Section 307/34 of IPC. Since they pleaded not guilty to the charge, sixteen (16) witnesses were examined by the prosecution. No witness was examined in defence.
4. The husband of the complainant Shri Sushil Chand came in the witness box as PW2 and inter alia stated that on 22.11.2004, he had intervened in a fight which Prakash Malik had with another person, whereupon Prakash Malik had threatened to see him on the next day. On 23.11.2004, at about 8:00 a.m., Prakash Malik came outside his house, but left after standing there for a while. The same night, when he was present at his shop along with his wife, Narender Sharma came to his shop and enquired about him. He came out of the shop, whereupon Narender Sharma took him near the urinal. While they were talking, Prakash Malik came Crl. A. No.43/2010 Page 3 of 10 there with a knife. Seeing the knife when he tried to run back to his shop, Narender Sharma caught hold of him, whereas Prakash Malik stabbed him four (4) times on the left side of his stomach as well as on his thighs and legs. Narender Sharma then brought him to his shop in his lap and left him there, asking his wife to take care of him. His wife then took him to hospital.
5. Smt. Kamlesh Sharma came in the witness box as PW1 and corroborated the deposition of her husband as regards the appellant Prakash Malik coming to their house in the morning of 22.11.2004, calling her husband and then leaving after a while. She also deposed with respect to Narender Sharma taking her husband near urinal and bringing him back after 2-3 minutes.
6. PW8 Constable Ram Kishore inter alia stated that on 26.11.2004, he joined investigation of this case with S.I. Jitender Tiwari. On that day, Prakash Malik led them in front of Vivek Cinema, Patel Nagar and pointed towards a knife lying near the road patri. The knife was handed over by him to IO and was seized vide memo Ex.PW8/B after it had been sealed with the seal of JT. He identified the Ex.P1 as the knife which the appellant is Crl. A. No.43/2010 Page 4 of 10 alleged to have been recovered.
PW12 is an official from RML Hospital who has proved the MLC of Sushil Chand Ex.PW12/A.
PW16 S.I. Jitender is the IO of this case who inter alia stated that on 24.11.2004, the appellant Prakash Malik was arrested by him. According to the witness, Prakash Malik made a disclosure statement Ex.PW16/A after which his police custody for one (1) day was obtained. He thereafter led them to the side of the road near Vivek Cinema Metro Station and got recovered a knife lying between the road and the footpath. Some blood stains and mud was found on the said knife.
7. In his statement under Section 313 of Cr.P.C, the appellant Prakash Malik denied the allegations against him and claimed to be innocent.
8. Vide impugned judgement dated 19.12.2009, the appellant Prakash Malik was convicted under Section 307 of IPC, whereas Narender died during the pendency of trial. Vide impugned Order on Sentence dated 21.12.2009, the appellant was sentenced to undergo RI for three (3) years and to pay fine of Rs.2,000/- or to undergo SI for two (2) months in default. Crl. A. No.43/2010 Page 5 of 10 Being aggrieved from his conviction and the sentence awarded to them, the appellants are before this Court by way of this appeal.
9. In order to succeed the prosecution was required to prove (i) that the death of Sapan was attempted, (ii) that his death was attempted to be caused by or in consequence of the act of the appellant and (iii) that such act was done with the intention of causing death or that it was done with the intention of causing such bodily injuries as the appellant knew to be likely to cause death or were sufficient in the ordinary course of nature to cause death. Although the nature of injury may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section. The intention of the assailants can be gathered from the motive for the crime, nature of weapon used, number of blows given by him, severity of blow and the parts of the body where the injuries are inflicted and other surrounding circumstances, if any.
10. The only contention of the learned counsel for the appellant is that from the facts and circumstances of the case, no offence under Section 307 Crl. A. No.43/2010 Page 6 of 10 of IPC is made out and at best the appellant can be convicted under Section 324 of Indian Penal Code. I find some merit in the contention. A perusal of MLC of the injured Sushil Chand Ex.PW12/A would show that he had the following injuries on his person when he was examined in the hospital:
(i) Stab wound 3 cm on stomach, left side, deep penetration
(ii) Left thigh antrolalaterally, upper 3 cm, muscle exposed
(iii) 0.5 cm stab wound on left Though the injury was opined to be dangerous by Dr. Deepak, the aforesaid doctor has not been produced in the witness box and the MLC has been proved by another doctor namely PW12 - Dr. Manoj Kumar Gupta. As a result, the appellant did not get an opportunity to cross examine the doctor who gave the aforesaid opinion, as to on what basis and on account of which injury, he was of the opinion that the injuries sustained by PW2 - Sushil Chand were dangerous.
11. Out of the three injuries found on the person of PW2, one was on his leg and the other one was on his thigh. Only one injury was on his abdomen. Had the intention of the appellant been to commit murder of PW2, he would not have chosen non-vital parts such as thigh and leg of PW2 to cause Crl. A. No.43/2010 Page 7 of 10 injuries to him and would rather have given more than one injuries either in the abdomen or on some other vital parts of the body. This is more so, when the injured was helpless, he having been held by Narender Sharma, co- accused of the appellant.
The MLC does not indicate the depth of the stab wound found in the abdomen which indicates that the injury was not very deep. Though it was stated to be of deep penetration, the extent of penetration has not been indicated in the MLC. Had the intention of the appellant been to commit murder of PW2, he would have given stab blows in the abdomen with a much greater force, which, in turn, would have resulted in quite a deep stab wound. In these circumstances it would be difficult to say that the appellant
- Prakash Malik caused injuries to PW2 - Sushil Chand with such intention or knowledge and under such circumstances that if he by those injuries had caused death of Sushil Chand, he would be guilty of murder. The appellant, in my view, committed offence punishable under Section 324 of IPC since he caused injuries to PW2 Sushil Chand using a sharp weapon for the purpose.
12. For the reasons stated hereinabove, the appellant is convicted under Crl. A. No.43/2010 Page 8 of 10 section 324 of IPC but is acquitted of the charge under Section 307 thereof. The appellant who is present in person in the Court states that he is ready to pay a compensation amounting to Rs.50,000/- to PW2 - Sushil Chand within one month from today. He has already been in jail for about six months and is not a previous convict. Therefore, he is granted benefit of probation and is released on furnishing a bond of peace and good conduct in the sum of Rs.10,000/- for a period of three years. During the period of bond, the appellant shall maintain peace and good conduct and shall refrain from committing any crime. He shall remain present if and when directed to receive the sentence awarded to him. He shall also pay compensation amounting to Rs.50,000/- to the injured by way of pay order/demand draft on or before 21.04.2014. In the event of default in paying the compensation and/or furnishing the bond of peace and good conduct in terms of this order, the appellant shall undergo RI for three years and shall pay a fine of Rs.5,000/- or to undergo SI for three months in default. The payment to the injured will be made under intimation to the learned trial court and in case the appellant is unable to locate him, the aforesaid amount shall be deposited by him in the trial court on or before 21.04.2014. In that case, the trial court will issue summons to the injured and disburse the compensation to him. Crl. A. No.43/2010 Page 9 of 10
The appeal stands disposed of accordingly.
One copy of this order be sent to concerned Jail Superintendent for information and necessary record.
Trial court record be returned, alongwith a copy of this order.
V.K. JAIN, J MARCH 21, 2014 BG Crl. A. No.43/2010 Page 10 of 10