Rajpal & Anr vs State
2009 Latest Caselaw 4408 Del

*              IN THE HIGH COURT OF DELHI AT NEW
DELHI

+      CRL.A. 85/2000

                                Reserved on: October 28, 2009

                              Pronounced on: October 30, 2009

#      RAJPAL & ANR                          ..... Appellants

!                              Through:    Mr.   K.B.       Endley,
                               Advocate.

                               Versus

$      STATE                                    .....Respondent
^                              Through: Mr. Amit Sharma, Addl.
                               PP for the State.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN



       1. Whether Reporters of Local newspapers may be
          allowed to see the Judgment?

       2. To be referred to the Reporter or not?

       3. Whether the Judgment should be reported in the
          Digest?


V.K.Jain, J.

This is an appeal against the judgment and Order

on Sentence dated 14.1.2000 whereby the appellants

Rajpal and Ramesh Kumar were convicted under Section

307 of IPC read with Section 34 thereof and were

sentenced to undergo rigorous imprisonment for five

years each and to pay find of Rs. 2,000/- each or to

undergo simple imprisonment for six months each, in

default.

2. The case of the prosecution, as disclosed in the FIR

is that one Kalawati, mother of the appellants who was

also a co accused with them and was acquitted by the

learned Additional Sessions Judge was a tenant under

complainant Brahmdev Gupta in respect of house No. Q-

10, Gali No. 10, Brahmpuri. Civil litigation was going on

between the complainant and Kalawati and there was a

quarrel on the day previous to the day of this incident,

when the appellant Rajpal tried to take possession of

some open portion of the house, on 23rd May, 1993, when

the complainant entered the house, on being instigated

by Kalawati, the appellant Rajpal gave danda blow on the

fingers of his right hand and Kalawati herself gave

danda blow on his head which he averted. Thereafter

Kalawati asked Ramesh to stab him. Rajpal caught hold

of him from behind and Ramesh stabbed him on the right

side of his abdomen and when he tilted in order to save

himself, the knife injured right side of his abdomen.

3. During trial the injured came in the witness box as

PW-2 and stated that on 23.5.93 at about 9.30 am when

he came after purchasing milk, Kalawati said 'Maaro

Saale Ko' and catch him. Rajpal caught hold of him while

Ramesh stabbed him with knife on the right side of his

abdomen. He raised alam as a result of which his Son

Ram Prakash saved him. The appellants then ran away

and he was taken to hospital by his son.

4. PW-3 Ram Prakash is the son of injured. He has

stated that on 23.5.93 he was reading newspaper while

sitting on the roof. His father came to the house after

purchasing milk. The appellant Rajapal caught hold of

his father and appellant Ramesh stabbed his father with a

knife on his abdomen. His father raised alarm and as

soon as he came down stairs, both the appellants ran

away.

5. PW-7 Dr. Balvinder Kumar has prepared MLC of

PW-2. In cross examination he admitted that as per depth

of the wound indicated against injury No. 1 and

correlated with x-ray, it would be treated as a Simple

Incised Wound.

6. PW-9 Dr. S.C. Bhalla examined the x-ray plate of the

injured and found fracture of base of third proximal

phalpnx on the left palm. He also stated that there was

no injury on the abdomen as per the x-ray.

7. In his statement under Section 313 Cr. P.C., the

appellant Ramesh Kumar admitted that he was a tenant

under the injured Brahmdev Gupta but denied having

caused injury to him. The appellant Rajpal admitted that

he was present in the house in question on 23.5.93 but

denied the allegations against him. He stated that in the

night of 2.5.93 SI Keshav Kumar, IO of this case along

with Ct. Satish and Ct. Satender came to the tenanted

premises. He further stated that the complainant

Brahmdev Gupta and his son attacked his wife on that

day. He made complaint against the investigating officer

and he was then suspended and an inquiry was instituted

against him.

8. DW-1 D.D. Nigam, ACP has stated that he

conducted inquiry on the complaint of Rajpal and

submitted his report mark A. DW-2 Inspector Balbir

Singh has proved the order of Additional Commissioner

of Police Ex. DW2/A and Ex. DW2/B. These documents

show that in P.E. in was found that the IO had helped the

complainant in getting her house vacated from the

appellant and then implicated the appellants in a false

case under Section 307 of IPC.

9. A perusal of the MLC of the injured / complainant

Ex. PW7/A would show that he had the following injuries

(i) A CIW 7 x 1 cm right hypochordrium,(ii) tenderness

right melacapoplandyant. When correlated with the

statement of the complainant / injured Shri Brahmdev

Gupta, it would show that the complainant / injured

Brahmdev Gupta had two injuries (i) one on his right

hand finger and the other on the right side of his

stomach.

10. As regards the injury on his finger, the case of the

complainant is in the FIR is that it was appellant Rajpal

who cause this injury on his right hand with a danda.

When the complainant came in the witness box, he did

not say a word about the injury on his right hand. He did

not way that the appellant Rajpal had given a danda blow

on his right hand finger. PW-3 who is the son of the

complainant also did not say a word as to how his father

sustained injury on his right hand finger. Thus, there is

absolutely no evidence as to who caused injury on the

right hand finger of the complainant. The testimony of

PW-9 Dr. S.C. Bhalla coupled with his report Ex. PW9/A

shows that there was a fracture on the left palm of the

complainant / injured Brahmdev Gupta. In the FIR

lodged by him, the complainant stated that Kalawati gave

a danda blow on his head which he was able to avert.

Possibly he got this fracture in order to save himself from

the danda blow given by Kalawati. He does not attribute

the injury on his left palm eight to appellant Rajpal or to

appellant Ramesh. The other possibility is that this injury

was sustained by the complainant in the incident of

quarrel which admittedly took place on 22nd May, 1993.

Be that as it may, the fact remains that there is no

evidence that the injury on the left palm of the

complainant was caused by either of the appellant.

11. The only evidence which has come against the

appellants is that while appellant Rajpal caught hold of

injured from behind, appellant Ramesh gave him a knife

blow on the right side of his abdomen. As noted earlier,

depth of the wound found on the right side of the

stomach of the complainant has not been given in the

MLC. PW-7 Dr. Ravinder Kumar has admitted in his

cross examination that since as per x-ray report of

abdomen, evidence of gas under the right doom of the

diaporam was not seen, that means the injury was not

upto the peritorium which is an internal organ. In fact,

according to him they had gone for x-ray of abdomen for

this very reason. He opined that since depth of the

wound has not mentioned against the injury no. 1,

without co relation with x ray, it would be treated as a

simple incised wound. Thus the evidence produced by

the prosecution proves only this much that a simple

incised wound of the size of 7 cm x 1 cm was given by

appellant Ramesh on the right side of the abdomen of the

complainant by knife and at that time he was held by

appellant Rajpal.

12. No one has told the court as to what was the size of

the knife used by appellant Ramesh. The knife has not

been seized. Ordinarily only kitchen knife are likely to be

available in a household.

13. In order to succeed in a charge u/s 307 of IPC, the

prosecution was required to prove (i) that the death of a

human being was attempted, (ii) that such death was

attempted to be caused by consequence of the act of the

accused and (iii) that such act was done with the

intention of causing death or that it was done with the

intention of causing such bodily injuries as the accused

knew to be likely to cause death or was sufficient in the

ordinary course of nature to cause death.

14, To justify the conviction under Section 307 of IPC it

is not essential that bodily injury capable of causing

death should have been inflicted. Although the nature of

injury may often given considerable assistance in coming

to a finding as to the intention of the accused, such

intention may also be deducted from other

circumstances. What the court has to see is whether the

act, irrespective of its result, was done with the intention

or knowledge and under the circumstances mentioned in

the section.

15. It was held by the Hon'ble Supreme Court in Sanjay

Kumar & Anr. Vs. State of M.P., 1994 Sup. (I) Supreme

Court Cases 502 that in order to being the case within

the ambit of Section 307 of IPC, it must be shown that

the accused acted with such intention or knowledge and

under such circumstances that if he by that act caused

death, he would be guilty of murder. In that case, six

incised wounds, which were not more than half inch in

size and were skin deep, were found on the body of the

injured. The High Court came to the conclusion that

having regard to the fact that a sharp edged cutting

instrument was used and certain injuries were caused on

the chest portion of the complainant, the intention of the

assailant was clearly to commit murder. It was held by

the Hon'ble Supreme Court that the approach of the high

Court was not correct and the cases would fall within the

scope of section 324 of IPC.

16. In Hari Singh Vs. Sukhbir Singh 1988(3)

Crimes 541 the Hon'ble Supreme Court held as

under:

Under Section 307 of IPC 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 that section. The intention or knowledge of the accused must be such as is necessary constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder' under Section 307 of IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 'Where the fight is accident allowing to a sudden quarrel, the conviction under Section 307 of IPC is generally not called for. We, therefore, see no reason to disturb the acquittal of the accused under Section 307 of IPC.

17. Since the wound caused to the complainant was

superficial as is evident from its depth having not been

indicated in the MLC, it cannot the said that the knife

blow to the complainant was given with a substantial

force. Had that been the case, the injury would have been

deep and would have reached up to the level of

peritonium. The appellant gave only one knife blow to

the complainant. Had his intentions been to cause death

of the complainant, not only would he have give blow

with substantial force, he would not have stopped at

giving one blow and would have caused multiple injuries

to the complainant. The appellants were tenants in a

house owned by the complainant. A civil case was

admittedly pending in the court. It is also not in dispute

that an incident of quarrel had taken place on the

previous day i.e. on 22.5.93. There must have been some

quarrel on 22.5.93 when according to the complainant,

the appellant Rajpal tried to take possession of some

vacant portion of the house. It appears that the injury to

the complainant was caused in the course of the quarrel

that ensued on 23rd May, 1993 consequent to the quarrel

on the previous day and keenness of the complainant to

get the house vacated. The preliminary Enquiry against

the IO has revealed his connivance with the complainant.

Therefore it cannot be said that the intention of the

appellants was to cause death of the complainant nor can

it be said that injury to him was caused with the intention

to cause his death. The facts and circumstances of the

case do not indicate any intention on the part of the

appellants to cause such bodily injury to the complainant

as was likely to cause death or as, in ordinary course

would be sufficient to cause his death. Therefore

conviction of the appellants under Section 307 read with

Section 34 of IPC cannot be justified in the facts and

circumstances of the case.

18. Since knife was used in causing injury to the

complainant and a knife is an instrument of stabbing and

cutting, the appellant Ramesh ought to be convicted

under Section 324 of IPC. The act of the appellant Rajpal

in holding the complainant when knife blow was given to

him by appellant Ramesh proves that he shared a

common intention with Ramesh to cause injury to the

complainant with a knife. Therefore, he also is liable to

be convicted under Section 324 of IPC, read with Section

34 thereof.

19. For the reasons given in the preceding paragraphs,

the order of the Trial Court is modified to the extent that

both the appellants are convicted under Section 324 of

the IPC r/w Section 34 thereof. During the course of

arguments it was admitted by Addl. PP that the

appellants have been in custody for more than six months

each. Hence both of them are granted benefit of

probation and shall be released on furnishing bond of

peace and good conduct in the sum of Rs. 10,000/- each

for a period of one year each, to the satisfaction of the

trial court within one week. In the event of failure to

furnish bond of peace and good behaviour in terms of this

order, they shall undergo rigorous imprisonment for one

year each and will also pay a fine of Rs. 5,000/- each or

undergo simple imprisonment for a period of one month

each in default. One copy of this order be sent to the

Trial Court within three days for information and

compliance. One copy be given dasti to the appellants.

(V.K. JAIN) JUDGE October 30, 2009/acm