[email protected] vs State
2010 Latest Caselaw 5565 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: 26th October, 2010
                                                 Date of Order: 7th December, 2010

+ Crl. Appeal No. 1191/2010 & Crl.M.B.No. 1417/2010
%                                                                      07.12.2010

        Vishal @ Chinki                                         ... Petitioner
                                 Through: Mr. Dinesh Garg, Advocate

                Versus


        State                                                   ... Respondent
                                 Through: Mr. Sunil Sharma, APP for the State


JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

This appeal has been preferred against the judgment dated 9th

August, 2010 whereby the appellant was convicted by the trial Court under

Section 307 IPC read with Section 34 and order on sentence whereby he was

sentenced to undergo RI for 03 years and fine of Rs.8,000/-.

2. The case against the appellant is that on 17 th June, 2006 at

about 8.30 pm he along with his other associates stopped Ravi and his friend

Vicky near the railway line and assaulted both of them with knife. The

appellant was known to the injured from before. Knife blows were given on

chest of Ravi and on the chest and belly of Vicky. After giving knife blows the

appellant ran away with his friends. The cause of giving knife blows is stated

to be a previous quarrel that had taken place between the appellant and

cousin brother of injured, on occasion of Diwali.

3. Both the injured deposed before the trial Court in respect of the

incident on the same lines as was the complaint made to the police and

supported the prosecution case about appellant having caused knife blows to

Ravi on his chest and to Vicky on his chest and stomach. However, the

injured stated that they did not know why they were assaulted and what was

the intention of the appellant. The issue of identity of the appellant did not

arise because the appellant was known to the injured persons and they had

categorically deposed that it was the appellant who had stopped them near

the railway line and then grappled with them and injured them with knife. It

was 'he' (appellant) alone who gave knife blows. The cross examination

conducted by the Counsel for the appellant was not fruitful to the appellant

and rather went against the appellant. PW-1 Kuldip cousin brother of Ravi

also testified that when he met the injured in the hospital, the injured told him

that they were attacked by the appellant. Thus, the fact of attacking injured

persons by the appellant with knife stood proved beyond reasonable doubt.

MLCs of the two injured were proved by PW-8 and PW-9 as Exh.PW8/A &

PW8/B. PW-9 stated that injuries, on the person of patient Vicky ie. PW-3,

were grievous in nature and this opinion was Exh. PW-9/A. The injuries on

person of PW-2 were found to be simple and sharp. PW-3 testified that he

received knife injuries on chest and stomach and he had to be operated upon

in the hospital as knife penetrated and reached his kidney. There is no

rebuttal to this testimony.

4. The learned Counsel for the appellant has argued that in this

case knife was not recovered by the police and in absence of recovery of

knife, the case against the appellant could not be stated to be established

beyond reasonable doubt. He also submitted that no motive was proved as to

why the appellant would have caused injuries to the injured persons. The

only witness examined by prosecution viz. Kuldip to prove the motive did not

support the prosecution. The other argument is that the learned trial Court

had not given due weight to the evidence of DW-1, mother of the appellant,

who had testified that the appellant was with her at the time of incident. It is

also argued that even it is considered that the injuries were grievous in nature,

no case under Section 307 IPC was made out and at the most it would be a

case under Section 326 IPC and the conviction of the appellant under Section

307 IPC was therefore not maintainable.

5. These arguments do not stand the scrutiny of reason.

Testimonies of PW-2 & PW-3 are categorical as to who caused the injury and

how the injuries were caused. Non-recovery of weapon of offence cannot be

a ground to doubt the testimonies of PW-2 & PW-3. The appellant might have

thrown knife anywhere so that it was beyond the reach of Investigating

Officer. I, therefore find no force in this argument.

6. Non-proving of motive is not such a drawback of the prosecution

that the case of the prosecution is not to be believed. In fact, no questions

were asked to the witnesses about reason, if any, for false implication of the

appellant. There was no motive for the witnesses to falsely implicate the

appellant. PW-2 during cross examination categorically denied that he had

named appellant due to suspicion because appellant quarreled with his cousin

Kuldip on previous Diwali on the issue of firing crackers. PW-3 also denied

that he had named the appellant at the instance of his friend Ravi. No

suggestion had been given to PW-2 & PW-3 of any reason for alleged false

implication of the appellant except about the quarrel which appellant had

picked up on Diwali with Kuldip. I, therefore consider that though motive has

not been proved categorically in examination-in-chief of PW-2 & PW-3, but

cross examination does throw a light on the motive of accused to assault the

victim and the conviction cannot be set aside on the ground, that accused had

no motive.

7. DW-1 examined by appellant is mother of the appellant and she

had simply stated that the appellant was sitting with her in the house at the

time of accident. However, her testimony showed that she had not made any

complaint to any authority about alleged false implication of the appellant and

she had also testified that the police had no enmity with her or her family to

falsely implicate the appellant. Thus, it is wrong to say that the trial Court had

not given due weightage to the testimony of DW-1. In fact DW-1 made a self-

serving deposition before the trial Court, which did not inspire confidence.

8. As far as conviction of the appellant under Section 307 IPC is

concerned, an intention on the part of the appellant to do an act with an

intention or knowledge that it may cause death and that he may be guilty of

murder if act had succeeded, has not been proved by the prosecution.

However, it has been proved that the appellant had come prepared for assault

with his friends and brought a knife to attack the injured but the moment

injured raised voice and cried for help he fled away from the scene of the

crime. The injuries inflicted by the appellant on the parts of the body i.e. chest

and belly do show that a knowledge can be imputed to the appellant that he

was aware that the act of causing injuries by the knife on the chest and

stomach with such a force that knife penetrated in stomach upto kidney, could

have resulted into death of victim and in such a case he would be guilty of

culpable homicide not amounting to murder. I, therefore consider that the

conviction of the appellant should have been under Section 308 IPC read with

Section 34 instead of Section 307 IPC. However, that does make much of the

difference in awarding sentence of 3 years RI to appellant as the injuries

caused to the PW-3 were grievous in nature and the knife had penetrated up

to kidney of injured and he had to be operated upon. He was lucky to have

got medical help in time to avoid death.

9. I consider the trial Court rightly awarded sentence of 3 years RI

to the appellant. The sentence awarded was not harsh neither

disproportionate to the offence. The appeal is hereby dismissed.

December 07, 2010                          SHIV NARAYAN DHINGRA, J.
vn