Delhi High Court
Rajbir vs The State Of Nct Of Delhi on 8 April, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Date of hearing and order: April 08, 2009
+ Crl. Appeal No. of 450 of 1999
Rajbir ... Appellant
Through: Mr. Apurb Lal and Mr. Manish,
Advocates
versus
The State of NCT of Delhi ... Respondent
Through: Mr. Amit Sharma,
Additional Public Prosecutor for
State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.(ORAL)
1. By way of this appeal, the appellant- Rajbir, is
assailing the judgment and order on sentence of 10th
August, 1999 and 18th August, 1999 respectively, of
trial court, whereby he has been convicted to undergo
Crl.A. No. 450 of 1999 Page 1
RI for five years and to a fine of Rupees one thousand
for the offence under Section 307 of the IPC and in
default of payment of fine, to undergo RI for three
months. Appellant has also been convicted and
sentenced to undergo RI of six months for the offence
under Section 27 of Arms Act. Both the sentences have
been ordered to run concurrently.
2. The facts of this case which needs to be noticed
for disposal of this appeal are that on 12th May, 1995, at
about 6:00 p.m., on receipt of information at Police
Station Bhajanpura, Delhi, ASI R.B.Joshi (PW-10) on
receipt of DD No. 24 (EX. PW10/A) alongwith Constable
Pradeep Kumar and SI Ishwar Singh reached at the spot
and then proceeded to GTB Hospital where injured-
Geeta (PW-1) was admitted. Her MLC was obtained and
her statement (EX. PW1/A) was recorded. On the basis
of her statement, FIR No. 242 of 1995, under Section
307 of the IPC was registered. After completion of
Crl.A. No. 450 of 1999 Page 2
investigation, Challan was filed in the trial court, where
the appellant/accused was charged for the offence
under Section 307 of the IPC and Section 27 of Arms
Act, who which he pleaded not guilty and claimed trial.
3. Fourteen witnesses were examined on behalf of
the prosecution. The material evidence is of
Complainant-Geeta (PW-1) and one eye witness to the
incident, Shyambir Singh (PW-3). Dr. T.S. Dalal (PW-6)
has proved the MLC (EX. PW6/A) and Dr. Rajpal (PW-12)
has examined the X-Ray report (EX. PW12/A) of the
complainant - Geeta (PW-1). ASI R.B. Joshi (PW-3) is
the Investigating Officer of this case.
4. In her testimony, Complainant- Geeta (PW-1) has
deposed the material facts, on the basis of which FIR of
this case was registered and trial of this case
commenced and the appellant has been convicted, as
noticed above. The brief narration of this case, as
deposed by her, is as under:-
Crl.A. No. 450 of 1999 Page 3
"On 12th May, 1995, while Complainant-Geeta (PW-1), was
alone in her tenanted house, as her husband had gone to sell
vegetables and her children were playing in the street,
appellant/accused- Rajbir, entered her house with an intention
to make illicit relations with her. Geeta (PW-1) protested it but
he caught hold her hand and told her that he wanted develop
intimate relations. On being pushed by Geeta (PW-1),
appellant/accused took out a knife from his pant pocket and
gave knife blows twice on her right shoulder and right arm.
Appellant/accused also stabbed on her left arm and on her
belly. While Geeta shouted in pain, her neighbours gathered
and appellant/accused managed to flew from the spot along
with the knife. Geeta was taken to GTB hospital in
unconscious condition where she was given medical aid".
5. After examining the witnesses, statement of
accused under Section 313 of the Code of Criminal
Procedure was recorded, in which appellant/accused
accepted that he had illicit relations with complainant-
Geeta (PW-1) but he stated that he has been falsely
implicated in this case and the said injuries were cause
to Geeta by her husband and she has been forced to
depose against him. However, no evidence was led by
appellant in his defence.
Crl.A. No. 450 of 1999 Page 4
6. Both the sides have been heard and the evidence
on record has been perused.
7. At the very outset, learned counsel for Appellant
does not challenge the impugned conviction of the
Appellant on merits but states that the offence made
out, does not fall under Section 307 of Indian Penal
Code and infact, it falls under Section 324 of the Indian
Penal Code.
8. Learned counsel for Appellant has taken this court
through the evidence of the injured as well as through
the evidence of Doctor (PW-6) to point out that there
was no intention on the part of the Appellant to have
attempted to cause death of the injured in this case and
the only intention was to have illicit relations with the
injured, who was married lady and was older than
appellant and since she had resisted, therefore, in a fit
of anger, Appellant had caused injuries with a knife,
which although have been opined to be grievous but
Crl.A. No. 450 of 1999 Page 5
are not proved to be grievous. The attention of this
court has been drawn to the evidence of Dr. T.S. Dalal
(PW-6) to point out that the opinion regarding nature of
injuries has not been given by him but he has proved
the said opinion.
9. It has been pointed out that this witness i.e. Dr.
T.S. Dalal (PW-6) has however stated in his cross-
examination that the depth of the injuries have not
been given. The description of four injuries sustained by
the injured is as under:-
a) Two CIW on right forearm distal 1/3rd ¾"
long
b) One CLW on left forearm near elbow 1"
long
c) One CIW on abdominal wall right iliac
fossa near anterior superior iliac spine
1" long penetrating.
d) Two CIWs one right scapula near upper
border and another near the tip 1" long.
10. Dr. T.S. Dalal (PW-6) has admitted in his evidence
that without giving the depth of the injuries, it is not
Crl.A. No. 450 of 1999 Page 6
possible for a doctor to opine regarding the nature of
the injury as to whether it was simple, grievous or
dangerous. It is also pointed out that there is nothing
on record to establish that the injured had remained
admitted in hospital for a period of twenty days. Thus, it
is submitted that the injuries sustained by injured (PW-
1) has to be taken as simple.
11. After having heard both the sides and upon
perusal of the evidence on record, I find considerable
substance in the aforesaid contention of counsel for the
Appellant. The offence committed in this case would
certainly fall under Section 324 of Indian Penal Code
and not under Section 307 of Indian Penal Code. This
aspect, regarding the nature of the offence committed
by the Appellant, has not been considered in the
impugned judgment. As a result thereof, conviction of
the Appellant stands altered from section 307 Indian
Penal Code to section 324 of Indian Penal Code.
Crl.A. No. 450 of 1999 Page 7
12. On the quantum of sentence, learned counsel for
Appellant states that the Appellant was aged 23-24
years at the time of this incident and that he is not a
previous convict. It is also stated that the Appellant has
already faced agony of trial and appeal proceedings
since May, 1995, and his conduct in jail has been
satisfactory.
13. As per nominal roll of the Appellant, he has
already undergone the sentence of two years, four
months and twenty days (including remissions). Offence
under Section 324 of IPC does not carry any minimum
sentence.
14. In the facts and circumstances of this case, the
Appellant is sentenced to the period already undergone
by him for the offence punishable under Section 324 of
Indian Penal Code. However, sentence of fine of
Rs.1,000/- is maintained. Learned counsel for Appellant
states that the fine has already been deposited.
Crl.A. No. 450 of 1999 Page 8
15. This appeal stands partly allowed to the extent
indicated above and is disposed of accordingly.
Sunil Gaur, J.
April 08, 2009
rs/pkb
Crl.A. No. 450 of 1999 Page 9
