Gaure Lal vs State Of Delhi
2010 Latest Caselaw 3753 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: July 05, 2010
                            Judgment delivered on: August 12, 2010

       CRIMINAL APPEAL NO.123/2005

       GAURE LAL                                 ....APPELLANT
               Through:      Mr.Narender Vashishta, Advocate.

                        Versus


       STATE OF DELHI                        .....RESPONDENT
               Through:      Mr.R.N.Vats, APP.


        CORAM:
        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 ?

AJIT BHARIHOKE, J.

1. Gaure Lal, appellant herein, has preferred this appeal against the

impugned judgment passed by the learned Additional Sessions Judge

on 08.10.2004 in terms of which the appellant was convicted on the

charge under Section 307 IPC and also against the consequent order

on sentence dated 11.10.2004 in terms of which the appellant has

been sentenced to undergo RI for the period of six years and also to

pay a fine of Rs.5,000/- and in default of payment, to undergo RI for

further period of five months.

2. Briefly stated, case of the prosecution is that on 13.09.2003 at

about 9:26 pm, Head Constable Ram Niwas of PCR informed Police

Station Vasant Kunj that one person has been stabbed with a knife

near House No.112, H-Block, Lal Khet, Marwari Camp. This information

was recorded as DD No.39A dated 13.09.2003 in the daily diary

register and copy of the DD report was entrusted to SI Harkesh for

verification, who along with Constable Satinder left for the spot of

occurrence. There, SI Harkesh, PCR van No.Z-29 and ASI Mangla Ram

in-charge of the van informed him that the injured Ramjeet had already

been taken to Safdarjung Hospital. ASI Mangla Ram also produced the

appellant Gaure Lal before SI Harkesh and told him that he was the

person who had quarrelled with PW Hoob Lal and when injured Ramjeet

intervened and tried to pacify them, the appellant stabbed him with a

knife on the left side of his abdomen. It is claimed that, on

interrogation, appellant had produced one blood-stained knife from the

roof of a Jhuggi. Said knife was measured, its sketch was prepared and

it was converted into a sealed parcel and taken into possession by the

Investigating Officer. Since the appellant as well as witness Hoob Lal

had also suffered minor injuries in the quarrel, they were also taken to

Safdarjung Hospital for medical examination. At the hospital, SI

Harkesh collected MLC of the injured Ramjeet who was declared `unfit

for making statement'. The injury on his person was opined to have

been caused by a sharp object. SI Harkesh appended his endorsement

on the DD report detailing the aforesaid facts and sent it to the police

station for the registration of the case. On the basis of said rukka,

formal FIR under Section 307 IPC was registered at Police Station

Vasant Kunj being FIR No.534/03, at 2:10 am.

3. During investigation, SI Harkesh prepared rough site plan of the

spot of occurrence. He recorded the statements of the witnesses. As

per the doctor, the injury sustained by injured Ramjeet was dangerous

in nature. On conclusion of the investigation, appellant was challaned

and sent for trial.

4. Learned Additional Sessions Judge on consideration of the

evidence collected during investigation, charged the appellant for

attempting to commit murder of Ramjeet, an offence punishable under

Section 307 IPC. The appellant pleaded not guilty to the charge and

claimed to be tried.

5. In order to bring home the guilt of the appellant, prosecution has

examined 10 witnesses in all. However, the case of the prosecution is

mainly based upon the testimony of PW2 Hoob Lal and PW4 Ramjeet

(injured). Before adverting to the submissions made by the respective

parties, it would be useful to have a look upon the testimony of some

of the important witnesses, including PW2 Hoob Lal and PW4

Ramjeet(injured).

6. PW2 Hoob Lal, who according to the prosecution is an eye

witness to the occurrence, has turned hostile and has not supported

the case of prosecution. He has deposed that he owed Rs.10/- to the

appellant Gaure Lal which amount was demanded by the appellant

from him. Thereafter, the appellant left and picked up quarrel with

Ramjeet. According to him, he is not aware as to what happened in the

quarrel. In the cross-examination, he denied the suggestion of learned

APP that it was the appellant who stabbed Ramjeet with knife when

Ramjeet tried to intervene in the quarrel between him and the

appellant. He, however, stated in his cross-examination that after

sustaining injuries, Ramjeet was removed by the PCR van to the

hospital.

7. PW4 Ramjeet was injured in the occurrence. He has stated that

on the relevant day i.e. 13.09.2003 at around 8:00 or 8:30 pm,

appellant Gaure Lal and PW Hoob Lal were quarrelling with each other.

On hearing the noise, he reached at the spot and suddenly the

appellant Gaure Lal came and stabbed him with a knife on the left side

of his abdomen. Thereafter, PCR van came and removed him to the

hospital. In the cross-examination on behalf of the appellant, he

admitted that there was no light at the spot and it was not possible to

recognise a person due to darkness. He denied the suggestion that he

has falsely implicated the appellant Gaure Lal only because of the fact

that he quarrelled with Hoob Lal.

8. PW3 Dr. Ramesh Prasadh has stated that on 13.09.2003, he

medically examined injured Ramjeet, a male aged 38 years. He found

a clean incised wound on the left hypochondiri region. According to

him, the injury was caused by a sharp object and it was dangerous in

nature. He has proved the MLC prepared by him as Ex.PW3/A.

9. PW1 Constable Satinder had accompanied SI Harkesh to the spot

of occurrence pursuant to DD No.39A. He has stated that when they

reached at the spot, ASI Mangla Ram, in-charge PCR van produced

appellant Gaure Lal before SI Harkesh. He was interrogated and he

made a disclosure statement Ex.PW1/A. Pursuant to the said

disclosure statement, appellant Gaure Lal got recovered one knife

Ex.P1 which was seized vide memo Ex.PW1/B after preparing its sketch

Ex.PW1/C.

10. The appellant was confronted with the incriminating evidence

appearing against him in his statement under Section 313 Cr.P.C. The

appellant denied the prosecution story and claimed that he has been

falsely implicated in this case. He did not prefer to lead evidence in

defence.

11. The learned Additional Sessions Judge, on consideration of the

evidence produced by the prosecution and the submissions made by

the respective parties, found the appellant guilty of committing the

offence of attempting to commit murder of the injured Ramjeet and

convicted him on the charge under Section 307 IPC and sentenced him

accordingly.

12. Learned Shri Narender Vashisht appearing for the appellant has

submitted that the appellant has been falsely implicated in this case.

Dilating on the argument, learned counsel submitted that the case of

the prosecution is based mainly upon the testimony of PW2 Hoob Lal

who is claimed to be an eye witness to the occurrence and PW4

Ramjeet(the injured). Out of them, PW2 Hoob Lal has not supported

the case of the prosecution. He was declared hostile. Even in the cross

examination, learned APP could not elicit anything incriminating

against the appellant. As regards PW4 Ramjeet, learned counsel

submitted that his testimony regarding identification of the appellant

as the assailant who inflicted injury is not reliable for the reason that

PW4 in his cross examination has admitted that at the time of incident,

it was dark and there was no light at the spot and it was not possible to

recognize a person in the darkness. Therefore, he could not have

identified the assailant.

13. I am not convinced with the aforesaid argument. Although, PW2

Hoob Lal has turned hostile but his testimony does establish the

presence of the appellant at the spot. PW2 Hoob Lal has stated that he

owed Rs.10/- to the appellant Gaure Lal which amount was demanded

back by him. Thereafter, the appellant picked up a quarrel with PW4

Ramjeet and he did not see what happened in that quarrel. The above

version of PW2 Hoob Lal remains uncontroverted because the appellant

has not cared to cross examine him on the aforesaid aspect. Thus,

even from the testimony of PW2 Hoob Lal, presence of the appellant at

the spot and his having picked up a quarrel with injured Ramjeet is

established. PW4 Ramjeet is categoric in his version that he was

stabbed with a knife by the appellant Gaure Lal, which version of PW4

stands corroborated by his MLC Ex.PW3/A which was prepared on

13.09.2003. There is nothing on record to suggest any motive or

enmity on the part of PW4 Ramjeet to falsely implicate the appellant.

Therefore, I find no reason to suspect the correctness of his version,

only for the reason that PW4 Ramjeet in his cross examination has

admitted that it was dark at the relevant time and it was not possible

to recognize a person due to darkness. On perusal of the charge sheet,

it transpires that both the appellant Gaure Lal as well as injured

Ramjeet were residents of jhuggi in Lal Khet on the Marwari Camp,

Vasant Kunj, New Delhi. Since they were neighbours obviously

appellant was known to PW4 Ramjeet, therefore it is natural that PW4

Ramjeet could identify the appellant Gaure Lal as the assailant as he

was stabbed by him with a knife from a striking distance. Otherwise

also, as per the case of prosecution as well as testimony of PW4

Ramjeet, the occurrence took place somewhere around at 8.30 pm to

9.15 pm. According to MLC, Ex.PW3/A of injured Ramjeet, his MLC was

prepared at 10.50 pm and the FIR in this case was registered at 2.10

am i.e. within few hours of the incident, wherein the name of the

appellant finds mention as the assailant who stabbed Ramjeet on his

abdomen. Therefore, I find no reason to suspect the version of injured

Ramjeet, which stands corroborated by his MLC Ex.PW3/A as also to

some extent by the testimony of PW2 Hoob Lal.

14. Another infirmity pointed out in the prosecution case by learned

counsel for the appellant is that as per the case of the prosecution first

information regarding the incident was conveyed to the PCR by

someone through Telephone No.9810639701. Learned counsel

submitted that as per PW4 Ramjeet it was one Chandrika who had

informed the police from his mobile phone. Despite that, Chandrika

has not been produced as a witness. Learned counsel submitted that

since the prosecution has withheld an eye witness, an adverse

presumption should be drawn that had Chandrika been produced, he

would not have supported the prosecution story. I do not find any

merit in this contention. Failure of the prosecution to produce

Chandrika cannot be taken as a reason to disbelieve the version of

PW4 Ramjeet whose presence at the time of incident cannot be

suspected as he sustained injury and whose testimony is otherwise

consistent and reliable.

15. The next submission on behalf of the appellant is that this is a

case of mistrial for the reason that the charge framed against the

appellant is defective and this in itself is a sufficient ground for

acquittal of the appellant. Expanding on the argument, learned

counsel submitted that as per the case of prosecution, the appellant

attempted to commit murder of the injured Ramjeet whereas he was

charged for attempting to commit murder of Mangla Ram and this has

resulted in a grave prejudice to the defence.

16. In order to properly appreciate the above contention on behalf of

the appellant, it would be appropriate to have a look on the charge

framed against the appellant by the learned Additional Sessions Judge,

which reads thus:-

"That on 13/9/2003 at about 9:15 P.M. at jhuggi Marwari camp near water tank, Lal Khet, Kusumpur Pahari Vasant Kunj, New Delhi you assaulted Mangla Ram with a knife with such intention and knowledge and under such circumstances if by that act you had caused his death you would have been guilty of culpable homicide not amounting to murder you caused injury on the person of Mangla Ram and thereby committed an offence punishable u/s 307 IPC and within my cognizance.

And I hereby direct you to be tried by this court for the abovesaid offences."

17. On perusal of the charge, it is apparent that in the formal charge

the name of the injured person has been mentioned as Mangla Ram

instead of Ramjeet. Charge is a very important component in a

criminal trial. Basic purpose of framing of charge before proceeding to

record evidence of prosecution is to inform the accused about the

precise nature of accusation which he has to meet and defend.

Therefore, it is an obligation on the court to be careful in framing of

charge because the defect in charge sometimes has a potential to

mislead the accused and thereby prejudice his defence. Undoubtedly,

in the instant case, the name of the victim has been wrongly

mentioned as Mangla Ram instead of injured Ramjeet, otherwise, the

factual components in the charge framed against the accused are

correctly mentioned. The question which arises for determination is

whether the mistake about the name of the injured in the charge has

caused any prejudice to the appellant in his defence? On perusal of

record, it transpires that during the recording of evidence of

prosecution witnesses, the case put forth by the prosecution was

regarding the injury caused by the appellant to PW4 Ramjeet. The

appellant has cross examined the witnesses through his counsel and

the tone and tenor of cross examination indicates that the appellant

was well aware that he was being prosecuted for causing knife injury

on the person of PW4 Ramjeet. Therefore, it cannot be said that the

defect about the name of the injured in the charge has caused any

prejudice to the defence of the appellant. As such, much importance

cannot be given to the aforesaid minor defect in the charge and, in my

considered view, the defect does not vitiate the trial.

18. Lastly, it was contended on behalf of the appellant that as per the

case of prosecution, the stabbing incident took place in the heat of

moment and there was no motive or intention on the part of the

appellant to commit murder or to cause dangerous injury to PW4

Ramjeet. Thus, he has submitted that by no stretch of imagination, the

act committed by the appellant falls within the purview of Section 307

IPC. As such, his conviction under Section 307 IPC for attempt to

commit murder of Ramjeet is unwarranted. Learned counsel argued

that at best the act committed by the appellant falls within the purview

of Section 326 IPC i.e. causing grievous injury with a dangerous

weapon.

19. Learned counsel for the State, on the other hand, has submitted

that the learned Trial Judge has rightly convicted the appellant under

Section 307 IPC. He argued that the appellant has inflicted a stab

injury on the left side of abdomen of the deceased which is a vital part

of the body and even as per PW3 Dr.Ramesh Prasadh who medically

examined the injured on 13.09.2003, the injury sustained by Ramjeet

was dangerous in nature and was caused by a sharp object, which

clearly indicates that while inflicting the injury on the person of PW4

Ramjeet, the appellant was expected to have known that said injury

may result in death of Ramjeet.

20. As per the case of prosecution as disclosed in the FIR, the

stabbing incident took place at the spur of moment when the injured

Ramjeet intervened in a quarrel between the appellant and PW2 Hoob

Lal. Even as per the testimony of PW4 Ramjeet, Hoob Lal and the

appellant were quarrelling when he reached at the spot and suddenly

the appellant inflicted knife injury on his abdomen. There is nothing in

the testimony of PW4 Ramjeet to show that there was any motive or

reason on the part of the appellant for causing injury to the victim

Ramjeet. As per the MLC of Ramjeet Ex.PW3/A, only one stab wound

was inflicted on the person of the injured. From the aforesaid factual

matrix, it can be safely inferred that there was no previous enmity or

motive on the part of the appellant to cause harm/injury to the victim

Ramjeet and the appellant had inflicted knife injury on the person of

Ramjeet in the heat of moment. As per the case of prosecution, the

knife used by the appellant was a kitchen knife. In these

circumstances, it is difficult to infer the intention on the part of the

appellant to cause death of Ramjeet. Admittedly, it was dark at the

time of occurrence and the appellant, therefore, could not have

anticipated as to where his knife blow would land. As such, even the

knowledge that the blow given to the injured Ramjeet could possibly

result in his death cannot be imputed to the appellant. Since neither

the intention to cause death nor the knowledge that the injury inflicted

on the person of Ramjeet could possibly result in his death can be

imputed to the appellant, in my view, the essential ingredient of

offence under Section 307 IPC is lacking in this case. Therefore, I find

that the learned Additional Sessions Judge has committed an error in

law by convicting the appellant for attempt to commit murder under

Section 307 IPC and, in my view, the act of the appellant in inflicting

dangerous injury with a knife to PW4 Ramjeet falls within the purview

of the offence of grievous hurt punishable under Section 326 IPC.

21. In view of the discussion above, I do not find any merit in the

appeal so far as the role played by the appellant in inflicting knife

injury on the abdomen of PW-4 Ramjeet is concerned. However, in the

given facts of the case the offence committed by the appellant does

not fall within the purview of Section 307 IPC but actually it amounts to

the offence of causing grievous injury with a dangerous weapon

punishable under Section 326 IPC. Thus, while holding the appellant

guilty of causing injury with a dangerous weapon i.e. knife to Ramjeet

and offence punishable u/s 326 IPC, his conviction under Section 307

IPC is set aside and converted into conviction under Section 326 IPC.

23. Coming to the sentence, learned counsel for the appellant has

pressed for a lenient view on the ground that the appellant is a married

man having a family comprising of his old mother, a wife and three

children who are dependent upon him for their subsistence. He further

submitted that otherwise also the incident took place in the heat of

moment and there is no past criminal antecedents of the appellant.

Keeping in view the aforesaid factual matrix, while maintaining the

sentence of fine imposed upon the appellant, his sentence of

imprisonment is reduced from six years to three years R.I.

24. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE

AUGUST 12 , 2010 pst/ks