Delhi High Court
Sanjay Kumar @ Pradeep Kumar vs State Of Delhi on 19 January, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : January 14, 2009
Judgment delivered on : January 19, 2009
+ Crl. A. No. 623/2006
Sanjay Kumar @ Pradeep Kumar ... Petitioner
Through: Mr. Ashutosh Bhardwaj,
Advocates
versus
State of Delhi ... Respondent
Through: Mr. Amit Sharma, Additional
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. For the offence of attempted murder, Appellant stands
convicted and sentenced vide impugned judgment, which is assailed
in this appeal.
2. The factual aspect of this case, emerging from the record, is as
follows:-
"On the night intervening 01/02-10-1995 at about
11.30pm one Vijay Kumar along with his brother
Shiv Sagar and one Rajesh went to see a fair at
Crl. A. No. 623/2006 Page 1
Mela Ground, Kala Mandir, within the jurisdiction of
PS Mangol Puri. While, they were roaming in the
mela ground, the hand of Vijay Kumar incidentally
touched one bearded boy. The said boy however
upon this, started abusing Vijay Kumar and on the
objection having been raised by Vijay Kumar, he
even stabbed him with a knife on his left shoulder.
Shiv Sagar, brother of Vijay Kumar when tried to
intervene in the matter was also stabbed on the left
side of his chest and left thigh by the said boy. The
said boy thereafter ran away from the spot. Rajesh,
who was however accompanying the two injured
brothers removed them to hospital in a TSR.
Subsequently, police met the two injured persons in
the hospital and IO/SI Deen Dayal recorded
statement of Vijay Kumar, Ex.PW1/A. The blood
stained clothes of the two brothers were already
taken into possession by the doctors and were
sealed with the seal of hospital. The pullandas were
taken into possession by the IO. SI-Deen Dayal
thereafter prepared a rukka Ex.PW-8/B and got a
case registered u/s 324/307 Indian Penal Code at
PS Mangol Puri. In the meantime in the mela
ground, one Ct. Sushil saw that public persons were
giving beating to a boy. Upon inquiry, he was told by
the public persons that the said boy has stabbed
two other boys. SI CM Meena of PS Mangol Puri
also happened to reach near the spot. Upon
checking, one gararidar button actuated knite
having blood stains upon its blade was recovered
from the possession of said boy, who disclosed
hisname as Sanjay Kumar. As the said boy Sanjay
Crl. A. No. 623/2006 Page 2
was also having some injuries on his person on
account of the beating given to him by the public
person so, he was also taken to the DDU Hospital
for his medical examination. At the hospital, both
Vijay Kumar and Shiv Sagar identified him to be
their assailant, who had stabbed them. Accused
Sanjay Kumar, who was earlier arrested by SI CM
Meena in the case under Arms Act after registration
of the case for the offence u/s 25 of Arms Act, 1959
at PS Mangol Puri vide FIR No. 1040/95 was also
arrested in the case u/s 307/324 IPC registered at
PS Mangol Puri vide FIR No. 1041/95. Later on,
during the course of investigation, the clothes of the
injured persons and the knife alleged to have been
recovered from the possession of accused were
sent to CFSL for examination. After completion of
investigation charge sheet for the offences under
section 307/324 of Indian Penal Code and under
Section 25 of the Arms Act was filed against the
Appellant/ accused."
3. Appellant/accused was put to trial on the aforesaid offences, as
he had not pleaded guilty to the charges framed under the aforesaid
provisions of law.
4. Out of the eight witnesses, who had deposed at trial, the crucial
evidence is of two injured, i.e., Vijay Kumar (PW-1) and Shiv Sagar
(PW-2). The medical record of this case stands proved by Dr. B.M.
Nag (PW-7). SI C.M. Meena, (PW-5) and SI Deen Dayal, (PW-8)
have conducted the investigation of this case. Appellant/accused in
his statement under Section 313 Cr. P.C. before the trial court,
Crl. A. No. 623/2006 Page 3
denied the prosecution case and had stated that at the time of
alleged incident, he was present outside the mela ground and was
detained there by SI C.M. Meena as on earlier occasions, he had
some quarrel with the Beat Staff of the police and so he has been
falsely implicated in this case. No evidence was led by the
Appellant/accused in his defence before the trial court. After the trial,
Appellant/accused has been sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.5,000/- for the offence punishable under Section 307 Indian Penal
Code and he has been directed to undergo for rigorous imprisonment
for a period of three years and to pay a fine of Rs.2,000/- for the
offence punishable under Section 25 of Arms Act. These sentences
have been ordered to run concurrently.
5. After having heard both the sides and upon perusal of the
evidence on record, I find that the Appellant/accused does not
dispute his presence at the mela ground. It emerges from the
deposition of injured witnesses, (PW-1) and (PW-2), that when they
had reached the mela ground, hand of Vijay Kumar, (PW-1) had
touched the Appellant/accused, who started abusing him and when
this witness (PW-1) asked the Appellant/accused not to abuse, he
stabbed him on his left shoulder and when his brother, Shiv Sagar
(PW-2) came to his rescue, he was also stabbed on his chest and
thigh and thereafter, both the injured were removed to hospital by
Rajesh, brother of injured (PW-1).
Crl. A. No. 623/2006 Page 4
6. It has been contended on behalf of the Appellant/accused that
aforesaid Rajesh has not been got examined. In the face of the
evidence of injured witnesses, non-examination of above said Rajesh
becomes immaterial. It has also been contended on behalf of the
Appellant/accused that injured Vijay, (PW-1) has stated in his
evidence that the accused was apprehended and was shown to him
in the hospital and this falsifies the prosecution case of
Appellant/accused being apprehended at the spot.
7. Aforesaid contention is fallacious for the reason that it has
come in the evidence of Vijay (PW-1) that the Appellant/accused was
caught at the spot and it has been also so stated by SI C.M. Meena,
(PW-5) and in fact, he had found public persons were beating the
Appellant/accused at the spot and upon apprehension of the
Appellant/accused at the spot, blood stained knife was recovered
from his pant pocket. The plea taken by the Appellant/accused is of
false implication by SI C.M. Meena (PW-5).
8. Aforesaid plea of false implication has not been suggested to SI
C.M. Meena (PW-5) and the same appears to be vague and an
afterthought. Recovery of the weapon of offence from the
Appellant/accused at the spot cannot be disbelieved merely because
it is not witnessed by any public person. About non-joining of public
witnesses, Investigating Officer, has not been questioned by the
Appellant/accused. There was no occasion to hold Test Identification
Parade as the Appellant/accused was arrested at the spot itself.
Crl. A. No. 623/2006 Page 5
9. The ocular version of this incident and the apprehension of the
Appellant/accused at the spot and recover of the weapon of offence
from him at the spot only, stands firmly proved from the evidence on
record and the trial court has rightly relied upon it. Simply because
the blood group of the human blood detected on the weapon of
offence is not available, it will not cast any doubt upon the veracity of
the prosecution case. However, the last submission advanced on
behalf of the Appellant/accused about the nature of the offence
committed is required to be considered.
10. Reliance has been placed by learned counsel for Appellant
upon decisions reported in 1995 JCC 148; AIR 1993 SC 2484; II
(1996) CCR 160 (SC); 1998 Cri.L.J. 2622; 1995 (2) CC Cases 519
(HC); 2004 (3) JCC 1648; 2007 (3) RCR (Criminal) 793; 2007 (2)
RCR (Criminal) 537; AIR 1959 J&K 119 (V 46 C 48), to contend that
the present case is of sustaining simple injuries and the
Appellant/accused had no intention to kill the injured and therefore, at
best, the offence made out would be under Section 324 of the Indian
Penal Code and not under Section 307 of the Indian Penal Code.
11. It is true that merely because the injuries are simple in nature, it
cannot be said that the offence made out would not fall under Section
307 of Indian Penal Code. It would all depend upon the facts of a
given case. Intention has to be seen. In the instant case, the incident
took place on the spur of the moment and all of a sudden. There was
neither any motive nor any previous quarrel. Hand of the injured (PW-
Crl. A. No. 623/2006 Page 6
1) had accidently touched the Appellant/accused at the mela, which
led to abusing and incident of stabbing. It is evident from the
evidence of injured persons that there was no intention on the part of
the Appellant/accused to kill the injured and the nature of injuries also
provide assistance to the court to gauge the intensity of the incident.
12. Upon taking an overall view of the entire evidence on record,
this court is of considered opinion that the offence committed by the
Appellant/accused falls within the ambit of section 324 of Indian
Penal Code and not within the four corners of Section 307 of the
Indian Penal Code. Correspondingly, the conviction of the
Appellant/accused stands altered from section 307 to section 324 of
Indian Penal Code. Accordingly, the substantive sentence imposed
upon the Appellant/accused also stands reduced from seven years to
three years. However, sentence of fine and the sentence imposed
upon the Appellant for the offence under Section 25 of the Arms Act
is maintained. Impugned judgment and order on sentence stands
modified to the extent indicated above.
13. This appeal stands partly allowed in the aforesaid terms. The
Appellant is in custody. He be informed of this order through the Jail
Superintendant concerned.
14. With the aforesaid directions, this appeal stands disposed of.
SUNIL GAUR, J
January 19, 2008
pkb
Crl. A. No. 623/2006 Page 7
