Suraj vs State Of Delhi
2009 Latest Caselaw 485 Del

*                       HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on : February 03, 2009
           Judgment delivered on : February 11, 2009

+                           Crl. A. No. 240/1999

%      Suraj                                               ...   Appellant

                       Through:    Ms. Ritu Gauba, Advocate

                                        versus

       State 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.

1. Appellant is aggrieved of the impugned judgment/order of

30th March, 1999, vide which he has been held guilty for the

offence of attempting to murder Kanwar Chand punishable under

section 307 of IPC. Trial court vide impugned order of 31st March,

1999, has sentenced the Appellant to undergo rigorous

imprisonment for two years with fine of Rs.1,000/- and in default

thereof, to undergo simple imprisonment for one month.

2. Concisely put, the background facts emerging from the

record of this case are as follows:-

Crl. A. No. 240/1999 Page 1 "On 2.1.93, at about 5.10 pm, Appellant/accused caused injuries to one Kanwar Chand on his chest at Balmiki Bara, Aryapura, Subzimandi, Delhi. He was taken to Hindu Rao Hospital by one Prakash Chand, who was present there. The police was informed and after obtaining fitness certificate from the doctor, statement of Kanwar Chand was recorded and a case under section 307 IPC was registered against the Appellant/accused. Injured Kanwar Chand is a sweeper in Municipal Corporation of Delhi. Prem Chand father of Appellant/accused borrowed some money from Kanwar Chand for which Prakash Chand has stood surety for him. On 1.1.93, when Kanwar Chand sent his son to recover loan amount from Prem Chand at his residence, Prem Chand abused son of Kanwar Chand. Next date, i.e., on 2.1.93, Prem Chand accompanied by his wife and went to meet Prakash Chand, who stood surety for Prem Chand and informed about the fact of Prem Chand abusing his son on demanding back the money. When he was talking to Prakash Chand, the Appellant/accused came there and arrogantly questioned Kanwar Chand as to why he was present in their Mohalla. Thereafter, he told him that if instead of him, his son had come there, he would not have escaped alive from him. Upon this, Kanwar Chand told Suraj that on the one hand they were not paying back his money and on the other hand, he was also calling him names. This enraged Suraj. As such, he took out a churri from his right dub and while saying to Kanwar Chand that he would finish him in place of his son, inflicted a blow on his chest. Thereafter, he attempted another blow at him but he succeeded in warding off the same by shifting aside. Suraj was overpowered by Prakash Chand and one Gianender.

Crl. A. No. 240/1999 Page 2 Kanwar Chand, in the meanwhile, was about to fall on the ground, but, Prakash Chand held him. Consequently, Suraj managed to release himself from the grip of Gianender and ran away with the churri. Police came, and prepared the site plan Ex.PW-11/A at the instance of Prakash Chand and Gianender, and on the same day, Appellant/accused Suraj arrested from the shop of a tea vendor at Roshanara Road. His personal search was taken and churri (knife) was recovered, which was taken into possession and sealed in a pullanda. Appellant/accused subjected to interrogation and he made a disclosure statement. Investigation commenced, statement of Prakash Chand, Gianender, Manoj Kumar and Maya Devi was recorded by the police. Medical examination of Kanwar Chand was done and the injury was described as simple and the weapon of offence was sharp. Thereafter, charge-sheet under section 307 of IPC was filed against the accused."

3. Appellant/accused was put to trial on the aforesaid offence,

as he had not pleaded guilty to the charges framed by trial court

under the aforesaid provisions of law.

4. At trial, prosecution had got examined twelve witnesses in

support of its case. Injured - Kanwar Chand (PW-6) proved his first

information report as Ex.PW-6/A, and his wife Maya Devi (PW-8)

and one Prakash Chand (PW-2) are the eye witnesses of this

incident, in which Kanwar Chand sustained injury on his chest.

Manoj (PW-7), son of Kanwar Chand, was examined to prove

about what transpired between him and the father of the accused

Crl. A. No. 240/1999 Page 3 on the previous day. Gianender (PW-3) had removed the injured

to the hospital.

5. Dr. Punit Kumar (PW-4) had proved the MLC of Kanwar

Chand Ex.PW-4/A. When Dr. Punit was recalled for cross-

examination subsequently, Sh. T.K. Sharma, Record Clerk of

Hindu Rao Hospital reported that he had left the hospital.

Inspector Mool Chand is the Investigating Officer of this case.

6. Before the trial court, Appellant/accused in his statement

under section 313 Cr. P.C., took the defence that he was lifted

from his house and was falsely implicated in this case. However,

Appellant/accused had not led any evidence in his defence before

the trial court.

7. After the trial, Appellant/accused stood convicted and

sentenced as noticed above.

8. Both the sides have been heard and with their assistance,

the evidence on record has been perused.

9. It has been contended on behalf of the Appellant that the

material witnesses Prakash Chand (PW-2), who is alleged to have

witnessed this incident and Gyanender (PW-3) who had removed

the injured to hospital, have not supported the prosecution case

and the evidence of injured (PW-6), his son Manoj (PW-7) and of

his wife Maya Devi (PW-8) is not reliable because

Crl. A. No. 240/1999 Page 4 Appellant/accused has been falsely implicated to this case to

settle the score with the father of Appellant. It is pointed out that

the medical evidence does not support the evidence of the

injured (PW-6) who has stated in his evidence that he was

unconscious in the hospital. It is stated that as per the MLC of the

injured, he was conscious when he was examined by the doctor.

It is also pointed out that the alleged weapon of offence has not

been shown to the doctor and this is fatal to the prosecution

case.

10. Prosecution case is sought to be dislodged by the defence

by contending that the prosecution case is highly improbable as it

is not possible to keep the knife/churri which is sword type in the

pant pocket and since the injured (PW-6) claims that he had

regained consciousness at about midnight, therefore, FIR lodged

on his statement at about 7.25 PM is rendered doubtful. It is next

submitted that the injury sustained is of simple nature and

therefore, the offence would not be covered by section 307 of

IPC. Lastly, it is urged that in view of the aforesaid infirmities in

the prosecution case, it is rendered doubtful and the conviction of

the Appellant - Suraj is bad in law and it deserves to be set aside.

11. Nothing else has been urged on behalf of the Appellant.

12. On behalf of the State, it is submitted that it is not a

prosecution case that the Appellant/accused had taken out the Crl. A. No. 240/1999 Page 5 knife/churra from his pant pocket and the correct version as

given by the injured (PW-6) is that the Appellant was having a

shawl around him and he had taken out the knife/churra from

underneath the shawl and had stabbed the injured (PW-6) on his

chest. It is stated that the eye witness (PW-2) and Gyanender

(PW-3) who had taken the injured to hospital, may not have

supported the prosecution case, but the evidence of injured (PW-

6) stands fully corroborated from the evidence of his wife (PW-8)

and of his son (PW-7). In the last, it is stated that one stray line in

the cross-examination of the injured (PW-6) by the defence of his

regaining consciousness in the hospital at about midnight is not

sufficient to throw the entire prosecution case over board as the

documentary evidence i.e. MLC Ex.PW-4/A of the injured (PW-6)

clearly shows that the injured (PW-6) was conscious when he was

brought to the hospital at about 5.30 in the evening. According to

the learned Additional Public Prosecutor for the State, Appellant

had the motive to commit this offence which squarely falls within

the ambit of section 307 of IPC and his conviction and the

sentence imposed is just and proper and calls for no interference

in appeal by this court.

13. The true import of Section 307 of the IPC has been

reiterated by Their Lordships in case of Vasant Vithu Jadhav V

Crl. A. No. 240/1999 Page 6 State of Maharashtra (2004 (2) JCC 700) in the following

words:-

"To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused 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 and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof"

14. In cases like present one, the testimony of the injured is of

prime importance and it requires no corroboration as the injured

would be the last person who would spare the real culprit and

would falsely implicate an innocent person. It stands established,

not only from the evidence of the injured (PW-6), his wife (PW-8)

and his son (PW-7) but also from the evidence of eye witness

(PW-2) that the injured had given a loan of Rs.21,000/- to the

Crl. A. No. 240/1999 Page 7 father of the Appellant and this witness (PW-2) had stood surety

for its repayment. There is no worthwhile challenge to the

evidence of the motive in this case.

15. It emerges from the evidence of the injured (PW-6) that on

the day of the incident he alongwith his wife (PW-8) had met

Prakash Chand (PW-2) and told him about the incident of the

previous day, i.e., of refusal by the father of the Appellant to

Manoj (PW-7), son of the injured, to repay the loan and of

Appellant abusing Manoj (PW-7), son of the injured. Even on the

day of incident, Appellant came and there and abused the injured

(PW-6) in filthy language and had threatened to rape the

granddaughter of the injured and he took out the knife/churri

from underneath his shawl and had stabbed injured (PW-6) on his

chest and the Appellant again tried to give second stab blow to

the injured (PW-6) who averted it with the help of his wife and

had fallen down and had become unconscious.

16. It is true that the evidence of related witnesses is to be

scrutinized with great care and caution. After having done that, I

find that the evidence of Maya Devi (PW-8) who is wife of the

injured (PW-6), sufficiently corroborates the version of the

injured. Manoj (PW-7) son of the injured has basically deposed

upon the motive aspect, i.e., about the incident of the previous

day.

Crl. A. No. 240/1999 Page 8

17. It is matter of record that it had never been the case of the

injured (PW-6) or of his wife that the Appellant/accused had taken

out the knife/churri from his pant pocket. This improved version

as introduced for the first time in evidence by the hostile witness,

Prakash Chand (PW-2). Therefore, the basic prosecution case of

Appellant/accused assaulting the injured (PW-6) with a knife after

taking it out from underneath the shawl, which he was wearing,

remained intact. It is true that knife, Ex.P-3, has not been put to

the doctor, who had prepared the MLC of the injured. But his

evidence remains unchallenged by the defence. He has

categorically stated in his evidence that the injury was caused by

sharp object. After much lapse of time, this doctor was sought to

be recalled but it was reported by the Record Clerk of the hospital

that he had left the hospital.

18. In any case, no prejudice is caused to the Appellant on this

account because the injury sustained by the injured (PW-6) has

been opined to be of simple nature. Inspector Mool Chand, (PW-

11) is the Investigating Officer of this case and he has not been

questioned as to why the recovered weapon of offence was not

shown to the doctor to obtain the opinion. However, nothing

material turns on it as the MLC Ex.PW-4/A indicates that it was a

stab wound and the type of weapon used was sharp. It is not the

case of the Appellant that the injury as reflected in the MLC

Crl. A. No. 240/1999 Page 9 Ex.PW-4/A cannot be caused with the knife/churra Ex.P-3. Simply

because the injury sustained by the injured is of simple nature, it

cannot be said that the Appellant had no intention to cause death

of the injured. Present case is not a solitary blow. It has come in

evidence that the Appellant had tried to give a second knife blow

but it was averted by the injured with the help of his wife and he

had fallen down and had become unconscious.

19. The important thing to be borne in mind in determining the

question whether an offence under Section 307 Indian Penal Code

is made out, is the intention and not the injury. Even if, injury is

not caused, still offence under Section 307 of the Indian Penal

Code is made out, if the intention is there to kill. Present case

illustrates this very well. Facts and circumstances of this case, as

evidenced by the injured/first informant, clearly proves that the

Appellant/accused had the intention to kill Kanwar Chand, who

was lucky to have warded off the second knife blow sought to be

inflicted by the Appellant upon him.

20. It has come in the evidence of injured (PW-6) that he had

regained consciousness in the hospital and his statement Ex. PW-

6/A/FIR was recorded and he had identified signatures thereon.

MLC of the injured (PW-6) also indicates that the injured was

conscious when he had reached the hospital at about 5.30 PM.

This incident is of January, 1993 and the injured (PW-6) was aged

Crl. A. No. 240/1999 Page 10 about 63 years when his cross-examination was recorded in April,

1995 and therefore, it is chief examination regarding regaining

consciousness in the hospital and his statement being recorded

by the police deserves acceptance and his utterance cross-

examination of regaining consciousness after many hours in the

hospital is not at all sufficient to throw out the entire testimony of

this injured witness (PW-6), which when read as a whole, inspires

utmost confidence. I am of the considered opinion that the trial

court had rightly relied upon it.

21. Trial court had already taken a lenient view on the point of

sentence. Appellant is on bail. His bail bonds and surety bonds

are cancelled. Trial court/successor court is directed to take the

Appellant - Suraj into custody to serve out the sentence as

awarded by it.

22. With aforesaid directions, this appeal stands disposed of.

SUNIL GAUR, J.

February 11, 2009
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Crl. A. No. 240/1999                                            Page 11