Banne Khan vs The State (Nct Of Delhi)
2009 Latest Caselaw 4173 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Decided on : October 15, 2009


+      CRIMINAL APPEAL NO.179/1995

       BANNE KHAN                                   ..... Appellant
                         Through:    Mr.Rakesh Malhotra, Advocate/
                                     Amicus Curiae.

                               versus

       THE STATE (NCT OF DELHI)            ..... Respondent
                    Through: Mr.Pawan Sharma, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


     1. Whether Reporters of local papers may
        be allowed to see the judgment?

     2. To be referred to the Reporter or not ?

     3. Whether the judgment should be reported
        in Digest ?


SANJAY KISHAN KAUL, J. (Oral)

1. Briefly stated, case of the prosecution is that the complainant

Farmida Begum (PW7) lost her husband about four years prior to the

occurrence. The appellant Banne Khan had been pestering her to

marry him, but she refused his offer. On 09.04.92 at about 7.00 AM in

the morning, appellant Banne Khan is stated to have visited the house

of the complainant and repeated his proposal of marriage to her. She,

however, declined the offer and refused to marry him. Son of the

complainant, Salim (PW6) also told the appellant to leave. After some

time the complainant went to fetch water from the house of a

neighbour. When she was coming back after fetching water, at about

7.30 AM, appellant Banne Khan is stated to have attacked her with a

knife and inflicted knife injuries on her chest, head, nose, left shoulder,

left buttock and right side of the stomach. The incident is stated to

have been witnesses by PW5 Vinod Kumar, a neighbour and PW6

Salim, son of the complainant. Because of the injuries, the

complainant became unconscious. She was shifted to GTB Hospital by

her son. The information about her admission in GTB Hospital was

conveyed to the Police Station, which was recorded in the daily diary

register as DD No.6A at the Police Station, Seelampur and investigation

of the case was entrusted to ASI Kadam Singh. ASI Kadam Singh

visited the hospital and obtained the MLC of the complainant who was

declared unfit for statement. Thus, he appended his endorsement on

the copy of DD No.6A and sent it to the Police Station for registration of

the case under Section 307 IPC.

2. After registration of the formal FIR, investigation was entrusted to

ASI Kadam Singh. He recorded the statement of the witnesses and

after completing the formalities of investigation submitted the challan

against the appellant.

3. Appellant was charged under Section 307 IPC, to which he

claimed to be not guilty and claimed to be tried.

4. On conclusion of trial, learned trial Judge relying on the testimony

of the witnesses PW5 Vinod Kumar, PW6 Salim and PW7 Farmida

Begum, convicted the appellant under Section 307 IPC and sentenced

him vide impugned judgment and order on sentence.

5. Learned counsel for the appellant has submitted though the

learned trial Judge was right in convicting the appellant for assault and

inflicting injuries on the person of Farmida Begum(PW7) with a knife,

he erred in convicting the appellant under Section 307 IPC. He has

submitted that the trial Judge failed to appreciate that there was

neither any motive nor any intention on the part of the appellant to

commit murder of complainant Farmida Begum. He has further

submitted that the Trial Court also failed to take note of the fact that

the prosecution had miserably failed to prove the nature of the injuries

caused to the complainant which could give rise to an inference that

those injuries were caused with an intention to commit murder. He has

urged us to set aside the conviction under Section 307 IPC and convert

it into the conviction under Section 324 IPC.

6. Learned counsel for the State, on the other hand, defended the

conviction under Section 307 IPC. He has submitted that PW9, SI

Kadam Singh has proved the MLC of the complainant mark 'A'. Besides,

the Trial Court has accepted the testimony of PW5 Vinod Kumar, PW6

Salim and PW7 Farmida Begum, the complainant, and rightly

concluded that the injuries inflicted on the person of the complainant

cumulatively were sufficient to cause death under ordinary

circumstances.

7. An offence under Section 307 IPC is a grave offence and it

requires the same ingredients to be proved as are needed to prove the

offence under Section 302 IPC, except that in the case of 307 IPC the

act of the accused falls short of the death of the deceased, which is a

necessary ingredient under Section 302 IPC. Sometimes, it becomes

very difficult to differentiate between an offence of attempt to commit

murder under Section 307 IPC and other offences like under Section

325, 326 IPC etc. In both the cases, the injuries may be there. The

crucial factor to distinguish between the above offences is the

existence of motive or intention on the part of the wrong doer that the

injuries inflicted by him are so grave and dangerous as to result in the

death of the victim. Therefore, care has to be taken that in such cases

of injuries, there may not be wrong application of evidence looking into

the serious consequences which may result from such error on the part

of the Court, as the penalty prescribed under Section 307 IPC and the

other offences of injuries to a person vary to a great extent.

8. Mens rea or intent, which is a state of mind can never be

precisely proved by direct evidence as a fact and it can only be

deduced or inferred from accompanying facts. Some relevant facts for

inferring Mens rea are nature of offence, nature of injury caused and

the place where the injuries were inflicted. In the instant case, as per

the testimony of the eye witnesses namely, PW5 Vinod Kumar, PW6

Salim and PW7 Farmida Begum, the injured, the motive for the crime is

stated to be the refusal of PW7 Farmida Begum to accept the marriage

proposal of the appellant. In our view, the aforesaid refusal ordinarily

would not push a reasonable person to take such an extreme step to

assault the lady with the intention to take away her life. However, the

fact remains that different people react to a situation in different

manner. Therefore, in order to infer whether or not the appellant had

intention to commit murder of the complainant Farmida Begum, it is

essential to advert to the medical evidence with a view to find out the

place of injuries as well as the nature of injuries. On perusal of record,

it transpires that prosecution has failed to prove the MLC of the injured

Farmida Begum. PW9 in his testimony has stated that mark 'A' is the

MLC of the injured Farmida Begum. In our view, identification of MLC

mark 'A' by the Investigating Officer is not sufficient proof of the

document. The MLC could be proved by direct evidence i.e. from the

original record of the hospital and by examining the Doctor who had

attended to the injured and prepared the MLC. Prosecution has failed

to do so. Therefore, we are of the view that MLC mark 'A' has not been

proved in accordance with law and its contents cannot be used against

the appellant. In absence of the medical evidence, we find ourselves

handicapped in coming to a conclusion about the place and the nature

of injuries suffered by the complainant Farmida Begum which could

help in coming to the conclusion about the intention of the appellant

behind the assault on the complainant. Since the prosecution has

failed to produce the best evidence pertaining to the injuries suffered

by the complainant and the nature of the injuries, the benefit of the

lapse must go to the appellant.

9. PW7, Farmida Begum, the injured has stated that she was

attacked by the appellant with a knife and she sustained injuries on her

head, nose, shoulder and back. She has not clarified in her testimony

as to which of those injuries were caused with a knife or by a blunt

force. In absence of any cogent evidence in that regard, particularly

when the prosecution has not examined the Doctor concerned, we find

it difficult to agree with the conclusion of the learned trial Judge that

the appellant had inflicted knife injuries on the person of the

complainant with the intention to cause her death. Thus, the

conviction under Section 307 IPC cannot be sustained. Be that as it

may, the fact remains that there is ocular evidence on the record that

the appellant did inflict some knife injuries on the person of the

complainant Farmida Begum. Therefore, we find him guilty of causing

hurt to the complainant with a sharp object i.e. knife.

10. In view of the above, while holding the appellant guilty of having

caused simple hurt to the complainant with a knife, we set aside the

conviction of the appellant under Section 307 IPC and convict him

under Section 324 IPC.

11. Now coming to the sentence, considering the nature of offence

committed by the appellant, we sentence him to undergo RI for a

period of three years.

12. From the nominal roll placed on record, it transpires that the

appellant has already undergone incarceration in the instant case for a

period of more than seven years. Therefore, there is no need to direct

his arrest for undergoing the sentence.

12. Appeal is disposed of accordingly.

13. Appellant is on bail. His bail bond and surety bond stand

discharged and cancelled.

SANJAY KISHAN KAUL, J.

OCTOBER 15, 2009                   AJIT BHARIHOKE, J.
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