High Court of Delhi was dealing with petition filed under Section 374(2) read with Section 482 Cr.P.C. challenging the judgment on conviction and the order on sentence passed by the learned Addl. Sessions Judge arising out of FIR registered under Sections 307/324 IPC.
Brief Facts:
Yunus is the permanent resident of Village Daurala, Meerut UP and along with his family was residing on rent and works as sewing machine mechanic. He along with his brother Sahil was going to buy some medicine and when they reached, accused Saleem, assaulted upon him with knife on his neck and right shoulder. When Sahil came to rescue him, he was also assaulted by accused Saleem and caused injuries to him. He further narrated that accused Saleem had met him in the day time and had threatened him. On this, Sahil called at 100 number, PCR van came and took him and his brother Sahil to the GTB hospital.
Appellant’s Contention:
The counsel for the petitioner submitted that the testimony of complainant is unreliable on account of prior enmity with the appellant, which has been admitted by the complainant himself. It was submitted that neither the weapon of offence was recovered during investigation nor were the complainant’s blood-stained clothes seized. It was also submitted that the testimonies of the complainant and his brother have material contradictions, inasmuch as the complainant stated that the incident had occurred at about 10:00 p.m., but his brother stated that the incident occurred at about 8:00 p.m. Lastly, it was contended that the Investigating Officer had not recorded the statement of any public witness.
Respondent’s Contention:
Learned APP for the State, on the other hand, supported the impugned judgment and order. It was submitted that the testimonies of both Mohd. Yunus and Sahil are consistent with each other and reliable, as both have deposed that they were assaulted by the appellant, who was already known to them.
HC’s Observations:
After hearing both the sides Court stated that in cross-examination the witness denied the suggestion that he was not present on the spot at the time of the incident or that he had deposed falsely to implicate the appellant. The appellant’s statement under Section 313 Cr.P.C. was recorded, wherein he stated that he was falsely implicated in the present case.
Court stated that Mohd. Yunus was the star witness of the prosecution case, being the complainant who suffered injuries at the time of the incident. HC relied upon the case of State of Uttar Pradesh v. Naresh and Others, where it was held that “The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence.”
Court found that the complainant had clearly deposed that there was pre-existing enmity between the appellant and him, as earlier also the appellant had caused injuries to him, and in pursuance thereto a police complaint was made. Court stated that a contention was raised on behalf of the appellant with respect to non-recovery of the weapon of offence. In connection therewith, HC relied upon the case of Rakesh and Another v. State of Uttar Pradesh and Another where SC held that “recovery of the weapon of offence is not a sine qua non for convicting an accused.” Court opined that under Sections 302/34 IPC, it was not possible to reject the ocular evidence of eye-witnesses to the incident, who were reliable and trustworthy. Court stated that the testimonies of the complainant and his brother are cogent and consistent, the contention raised on behalf of the appellant that the weapon of offence was not recovered, has no merit.
HC Held:
After evaluating submissions made by both the parties the Court held that “the pre-existing enmity between the appellant and the complainant, the receipt of two injuries by the complainant during the incident, out of which one was on vital part of the body i.e., neck, the nature of the injury being opined as grievous would indicate that the appellant had the requisite intention as well as the knowledge that such injuries could have been fatal. Thus, in the opinion of this Court, the ingredients of the offence punishable under Section 307 IPC are clearly proved against the appellant beyond any shadow of doubt.”
Bench: Hon'ble Mr. Justice Manoj Kumar Ohri
Case Title: Saleem Khan v. The State (Govt. Of GNCT, Delhi)
Case Details: CRL.A. 491/2020
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