Surinder Kumar Sharma vs The State (Govt. Of Nct)
2010 Latest Caselaw 689 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              Crl.A. 315/2009

%                           Reserved on:      3rd February, 2010
                            Date of Decision: 8th February, 2010

#      SURINDER KUMAR SHARMA               ..... Appellant
!                  Through:     Mr.A.J.Bhambani,        Ms.Nisha
                   Bhambani, and Ms. Lakshita Sethi, Advs.

                      versus


$      THE STATE (GOVT. OF NCT)                  ..... Respondent
^                    Through: Mr. Jaideep Malik, APP.
                     Mr. Amit Chadha, Adv. for the Complainant


*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

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

       2.      To be referred to the Reporter or not?          Yes

       3.      Whether the judgment should be
               reported in the Digest?                         Yes

: V.K. JAIN, J.

1. This is an appeal against the Judgment dated 7th

November, 2008 and Order on Sentence dated 11th November,

2008, whereby the appellant was convicted under Section 307 of

IPC and was sentenced to undergo RI for 5 years and to pay fine

of Rs.1,000/- or to undergo RI for six months in default.

2. On 23rd October, 2006, on receipt of copy of DD No. 28-A,

SI Mange Ram of Police Station Prasad Nagar went to house No.

16/1615 E, Arya Samaj Road, Bapa Nagar, where he came to

know that the injured had been taken by PCR van to Lady

Harding Hospital. When he went to the hospital, the injured

Rekha was unfit for statement. Later on, she was declared fit for

statement, but she being under treatment, was not in a position

to give her statement. The Investigating Officer, thereupon,

recorded the statement of her son Rahul, who was present in the

hospital. Rahul informed that on that day, at about 6.45 pm,

when he was present in his house alongwith his mother Rekha

and his sister Meenakshi, the appellant, who is his step-father,

started abusing his mother Rekha, after taking liquor. When his

mother objected to his quarrelling on a festival day, the

appellant started strangulating her. He, however, got his mother

rescued from the appellant. Thereafter, the appellant brought

out a hammer and gave 3-4 blows on the head of his mother as

result of which, she became unconscious. The appellant,

thereafter, ran away from the house.

3. The injured Smt. Rekha came in the witness box as PW-3

and stated that after separating from her husband, she had re-

married the appellant Surinder Kumar Sharma in the year 2000

and was residing with him as his wife. One child Ridhav Sharma

was also born from her marriage with the appellant. She further

stated that the appellant was unemployed and had a number of

vices such as liquor addiction and she was managing the

household expenses by doing a private job. The rental income

used to be spent by the appellant on purchasing liquor. She

further stated that the appellant used to misbehave with her and

give beating to her as well as to her son under influence of

liquor. Even the elder brother, mother and sister-in-law and

nephew of the appellant also used to misuse with her and beat

her up.

4. As regards the occurrence, which took place on 23rd

October, 2006, she stated that on that day, the appellant, his

elder brother and wife of his elder brother were sitting in the

outer room and discussing something about her. Her mother-in-

law, brother-in-law and sister-in-law were saying to the appellant

that either she should be left or killed. She went there and

enquired as to how they would kill her. Her mother-in-law

caught hold of her hair and slapped her. When her children

Rahul and Meenakshi tried to save her, they also were given

beating. The appellant asked his daughter Meenakshi to write,

as per her dictation, on a piece of paper. He then picked a glass

bottle and hit on her forehead. When her children tried to save

her, they were beaten up by the family members of the

appellant. Thereafter, the appellant chewed the ring finger of

her left hand. Her daughter Meenakshi asked Rahul to rush to

police officials. The appellant then brought a hammer from

somewhere and gave a blow with that on her head. He did not

resist despite Meenakshi asking him not to do so. She,

thereafter, became unconscious.

5. The complainant Rahul, son of the appellant, came in the

witness box as PW-2 and stated that on 23rd October, 2006, his

grandmother, his uncle and aunt were talking to the appellant in

loud voice and his grandmother and uncle were saying that if

Rekha is killed, they would get the appellant married with the

sister of his sister-in-law. On hearing this, his mother went to

that room. After some time, he heard the shriek of his mother.

When he rushed to that room, he found his grandmother holding

the hair of her mother. They were abusing his mother, who had

been surrounded by them. When he tried to save her, he and his

sister were assaulted by his uncle and aunt. They, however,

somehow saved themselves and took her mother to the nearby

room. The appellant then picked a glass bottle and gave a blow

on the head of his mother. He also tried to hit his sister

Meenakshi with the broken bottle and when his mother tried to

save Meenakshi, the appellant gave a tooth bite to his mother.

The appellant also tried to throttle the neck of his mother with

his leg. When his sister tried to inform the police, her mobile

phone was snatched by the appellant. At the instance of his

mother, he informed the Police Control Room. When he came

back, he found his mother lying in a pool of blood. In the

meantime, Chand, son of his maternal uncle, came there with his

friend and all of them took his mother to hospital in PCR van.

6. PW-4 Meenakshi is the daughter of the injured. She has

corroborated the testimony of PW-2 and PW-3 and stated that

the appellant had assaulted her mother and had tried to

strangulate her by pressing her neck with cross legs. The

appellant took out one bottle of liquor from the lower portion of

table where liquor bottles have been kept and gave a blow on

the forehead of her mother who started bleeding. The appellant

also threatened to kill her, whereupon her mother tried to save

her. The appellant then chewed a finger of her left hand. Her

brother Rahul informed the police form STD booth. The

appellant picked up a hammer and gave three blows on the head

of her mother. She telephoned her cousin Jai Prakash who came

to their house with his friend and her mother was taken to

hospital.

7. PW-5 Head Constable Kartar Singh stated that on that day,

he went to house No. 16/1615 E, Arya Samaj Road, Bapa Nagar

and found a lady lying there in injured condition. She was taken

to hospital in PCR van. PW-6 Constable Subhash has stated that

on 24th October, 2006, the appellant, who was in custody,

produced a hammer lying underneath a table and the hammer

was seized vide Memo Ex. PW-6/C. The witness also identified

the hammer which was seized by them. PW-9 SI Mange Ram is

the IO of the case. According to him, the appellant had got a

hammer recovered underneath lying in his house.

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

denied having married PW-3 Rekha Sharma. He, however,

admitted that Rekha has two children from her previous

marriage and that she was residing with him. He also admitted

that Ridhav Sharma is his son from Rekha and that he used to

take liquor though he claimed that he used to take a small

quantity in the evening. He, however, denied rest of the

allegations against him and claimed that Rekha wanted to usurp

his property and, therefore, had implicated him in a false case.

9. DW-1 Pooja is the daughter of the appellant from his first

marriage. She has stated that Rekha was brought to the house,

by the appellant, after the death of her mother Sunita. She

further stated that Rekha sustained injury while searching the

key, when something fell on her head from the top of almirah.

She also stated that the appellant then took Rekha to hospital.

According to her, Rekha used to quarrel with him even prior to

this incident and used to ask him to transfer the property in her

name. She also stated that the behaviour of Rekha towards her

was not good.

10. In order to succeed the prosecution was required to prove

(i) that the death of Rekha was attempted, (ii) that her death was

attempted to be caused by or in consequence of the act of the

appellant 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 appellant knew to be likely to cause

death or were sufficient in the ordinary course of nature to

cause death. Although the nature of injury may often give

considerable assistance in coming to a finding as to the intention

of the accused, such intention may also be deduced 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. The intention of the assailants can be gathered from the

motive for the crime, nature of weapon used, number of blows

given by him, severity of blow and the parts of the body where

the injuries are inflicted and other surrounding circumstances, if

any. The language of the section makes it clear that even if

mere hurt is caused by an act which is done with such intention

or knowledge and under such circumstances, that if by that act

death is caused, the offender would be guilty of murder, this

section will apply. This section itself provides a punishment of

10 years for doing an act which amounts to an attempt to

murder even though the act causes no hurt to anyone, but the

offender is liable to the heavier punishment of imprisonment for

life, if the injury is actually inflicted. If the intention of he

accused to inflict injuries sufficient enough to cause death is

established from the nature of the injuries and other

circumstantial evidence, it cannot be said that there was no

evidence that the injuries caused were known to be accused to

be likely to cause death.

11. It is an admitted fact that the relations between the

appellant and the injured were far from cordial. The injured

claims to be the second wife of the appellant, whereas the case

of the appellant, is that he did not marry her and only had illicit

relations with her, though admittedly he has one child from his

relationship with the injured. Even DW-1, who is the daughter of

the appellant from his first wife, has stated that the injured used

to quarrel with the appellant even prior to this incident and used

to ask him to transfer property in her name. She also claims

that the behaviour of the injured towards her also was not good.

Therefore, the appellant had motive to attempt murder of the

injured, on account of strain relationship between parties and

the injured continuing to live in the house of the mother of the

appellant along with children from her first marriage.

12. A perusal of the MLC of Rekha Ex.PW.7/A would show that

the following injuries were found on her person when she was

examined in Lady Hardinge Medical College on 23rd October

2006:-

       (i)     CLW on left temporal region 1cm x 0.5 cm.

        (ii)    CLW on frontal region of scalp „V‟ shaped

       3 cm x 0.5 cm.

       (iii)   Abrasion on forehead 0.5 x 0.2 cm.

       (iv)    Abrasion on right ring finger d/t teeth bite.

13. This is not the case of the appellant that there was some

quarrel all of a sudden between him and Rekha on that day, and

the injuries caused by him to Rekha were result of that sudden

and unexpected quarrel. It has come in the testimony of PW-2

Rahul and PW-4 Meenakshi, son and daughter respectively of

the injured, that the appellant had tried to strangulate their

mother, using his leg for this purpose. This indicates intention

of the appellant to commit murder of Rekha by strangulation.

The appellant also used a bottle of liquor lying in the house for

causing injuries on the forehead of Rekha. He then chewed one

finger of the right hand of Rekha. This was followed by the

appellant picking up the hammer and giving two blows on the

head of Rekha. The acts of the appellant in continuing to cause

injuries to Rekha despite intervention of her children, by

strangulation, using liquor bottle and then with a hammer leave

very little doubt that since the appellant was fed up with the

disputes and quarrels, which he had with Rekha, he had decided

to finish her life on that day. The fact and circumstances of the

case indicate that had the children of Rekha not intervened in

the matter and had her son not gone to call the police, to the

knowledge of the appellant, he would not have stopped at giving

two hammer blows to Rekha and would in all probabilities have

killed her on that day. It was only on account of intervention of

her children that Rekha could be saved from more fatal injuries

at the hands of the appellant on that day.

14. The appellant despite his being either husband or live-in

partner of Rekha used hammer, which is a deadly weapon, for

causing injuries to her. Use of hammer for causing injuries was

proceeded by an attempt to strangulate her and causing injuries

using a bottle of liquor. Therefore, nature of the weapon used

by the appellant coupled with attempted strangulation of Rekha

also shows that he intended to cause death of Rekha or atleast

intended to cause such injuries, which he knew to be likely to

cause her death, or which, in ordinary course of nature, would

have been sufficient to cause her death. This inference finds

strong support from the part chosen by the appellant to cause

injuries to Rekha. He first caused injury with a bottle on the

forehead of Rekha and then he gave two hammer blows on her

head, which is a vital part of her body. It can hardly be disputes

that causing injuries on head with weapon such as a hammer is

likely to cause death. Rekha, who had become unconscious on

account of the hammer blows given to her, might even have

succumbed to the injury sustained by her, had she not been

immediately taken to hospital either by her relatives or by police

officials, who arrived on the spot in a PCR van. Therefore, the

only reasonable inference which can be drawn from the facts

and circumstances of this case is that the appellant had

attempted to commit murder of Rekha on the date this incident

took place.

15. It is true that in her statement under Section 161 of Code

of Criminal Procedure Rekha did not implicate her mother-in-

law, brother-in-law and sister-in-law and their son, which she did

when she was examined in the Court, but that by itself, cannot

be a ground to disbelieve the testimony of Rekha in toto,

particularly when her testimony finds corroboration not only

from the deposition of her children, but also from the injuries

sustained by her. It is quite possible that on account of strained

relationship, which Rekha admittedly had with her in-laws, who

are residing in the same house in which she is residing, she

decided to implicate them as well. But, it would not be

appropriate to reject her testimony as a whole on this count

alone, when it is quite possible to separate that part of her

testimony which finds corroboration from the injuries sustained

by her and other facts and circumstances of the case.

16. As noted by the Hon‟ble Supreme Court in „ Sorabh vs.

State of M.P.‟ (1972), 3 SCC 751, one hardly comes across a

witness whose evidence does not contain a grain of untruth or

who does not resort to exaggeration, embroidery or

embellishment. It is for the Court to separate the grain from the

chaff and then believe that part of the evidence which is found to

be true and correct. Some exaggeration or embellishment may

be attributed to over anxiety leading to the witness giving an

exaggerated account of the incident witnessed by him or

sometimes it can be a deliberate attempt to over embellishment.

If the core part of the testimony of a witness inspires confidence

and can be safely acted upon, his testimony need not be rejected

even if some other part of his testimony is not proved to be

correct. It was held by the Hon‟ble Supreme Court in „ Ganga

Dhar v. State of Orissa ‟ AIR 2002 SC 3633 that even if major

portion of the evidence is found deficient, the conviction can be

based on the residual evidence, if it is otherwise sufficient to

prove the guilt attributed to him. Even if a part of the testimony

of a witness appears to be untrue or false, that by itself does not

destroy his testimony from beginning till end. It is only where

the Court does not find it possible to separate truth from

falsehood on account of grain and chaff being inextricably mixed

up that the Court has to discard the entire testimony of the

witness in toto.

17. In „State of Uttar Pradesh vs. Shankar‟ AIR 1981 SC

897, it was held by Hon‟ble Supreme Court that the mere fact

that the witness had not told the truth in regard to a peripheral

matter would not justify a rejection of his evidence. It was

reminded that time and again the Court had pointed out that in

this country, it is rare to come across the testimony of a witness

which does not have a fringe or embroidery of untruth although

his evidence may be true in the main.

18. In „Bhagwan vs. State of Maharashtra‟ AIR 1974 SC 21,

the Hon‟ble Supreme Court held that the maxim " falsus in uno

falsus in omnibus" is not to be blindly invoked in appearing

evidence adduced in our Courts where witness seldom tell the

whole truth but often resort to exaggeration embellishment and

padding up to support of however, true in the gain. It is the

function of the Court to disengage the truth from falsehood and

to accept what it finds to be true and reject the rest. It is only

where truth and falsehood are inextricably mixed up polluting

the beyond and refinement the entire fabric of the narration

given by witness that the Court might be justified in rejecting his

evidence in toto. The same view was taken in „Laxman vs.

State of Maharashtra‟ AIR 1974 SC 308, where the Hon‟ble

Court held that the witness cannot be branded as liars in toto

and their testimony rejected outright even if parts of their

statement are demonstrably incorrect or doubtful. It was

observed that an astute Judge can separate the grain of

acceptable truth from the chaff of exaggeration and

improbabilities, which cannot be safely or prudently accepted

and acted upon. In „Raising vs. State of Haryana ‟ AIR 1971

SC 2505, the Hon‟ble Supreme Court held that in each case the

Court has to appraise the evidence to see to what extent it is

worthy of acceptance and merely because in one respect the

court considers it unsafe to rely on the testimony of a witness it

does not necessarily follow as a matter of law, that it must be

discarded in all other respects as well. The Court has to sift the

evidence with care in each case and on full consideration of all

the relevant material circumstances to come to a decision, which

part of the testimony of the witness to accept, and which to

reject.

19. In „Bholu vs. State of Haryana‟ AIR 1976 SC 2499, the

Hon‟ble Supreme Court reiterated that the Court should make

every effort to disengage the truth from the falsehood and to sift

the grain from the chaff rather than take the easy course of

rejecting the entire prosecution case merely because there are

some embellishments.

20. It has not been disputes by the appellant that Rekha had

sustained the injuries which were found on her person, when she

was examined in the hospital on 23rd October 2006. The plea

taken by the appellant, as disclosed by suggestion given to the

witness and the deposition of DW-1, is that when Rekha was

searching keys, something fall on her from the top of the almirah

and that was the reason for her getting injured. The defence

taken by the appellant does not inspire confidence. In fact in his

statement under Section 313 of Cr.P.C., no such plea was taken

by the appellant. DW-1, who claims to be eye-witness of some

articles lying on the top of almirah falling on Rekha, could not

even tell the Court as to what were the articles that had fallen

on the head of Rekha and had injured her. Moreover, the nature

of the injured sustained by Rekha also shows that these injuries

could not have come on account of something falling on her

head. Even if a hammer falls on the head on a person from the

top of an almirah, that would not cause serious injuries, such as

those sustained by Rekha. The difference between the top of an

almirah and the head of a person not being much, falling of

hammer, from almirah, on the head, can cause only minor injury

and not serious injuries such as those found on the person of

Rekha. Even if the hammer falls on the head of a person from

the top of an almirah, it would cause only one injury at the place

where it hits the head, whereas Rekha had one clean lacerated

wound on her left temporal region and other lacerated wound on

the frontal region of her scalp. Moreover, Rekha had injuries

not only on her temporal region and frontal region of the scalp,

she had injuries on her forehead as well and even her ring finger

of the right hand had tooth bite on it. There is no explanation

for these injuries. The appellant himself had some injury in his

hand, when he was examined in hospital. If he was sleeping

when Rekha sustained injury on account of something falling on

her head from the top of almirah, as claimed by DW-1, there is

no explanation for the injury to the appellant. On the other

hand, it has come in the testimony of PWs, that he may have

sustained injury, when he used a bottle of liquor, to cause injury

to Rekha. Even otherwise had Rekha sustained injuries on

account of something falling on head from the top of the almirah,

the injured and both her children would not have gone to the

extent of implicating the appellant in a serious case of attempt to

murder, which resulted in the appellant remaining behind the

bars for more than two years.

21. It was pointed out by the learned counsel for the appellant

that in the case sheet of Rekha the date has been changed from

27th to 29th though Rekha herself has admitted that she was

discharged from the hospital on 26th or 27th of October 1996. I

find that no question as regards change of date on the case

sheet was put either to the Investigating Officer or to any

witness from Ram Manohar Lohia hospital, where this case sheet

was prepared. In the absence of any cross-examination, neither

the Investigating Officer nor the Doctor had an opportunity to

explain the change of date on the case sheet and, therefore, no

inference on this account can be drawn against the prosecution.

It would be relevant to note here that in his application dated 2nd

November, to the hospital, which is available in trial court

record, the Investigating Officer has written that Rekha was

discharged on 29th October 2006. Also there is another

endorsement on the case sheet, which is also dated 29 th October

1996. The Case Sheet was produced in the Court by PW-10 Dr.

Siddharth and not by injured or by the Investigating Officer.

Therefore, the possibility of Rekha having been discharged only

on 29th October 2006 and she not remembering the correct date

of hear discharge when she was examined in the Court cannot

altogether be ruled out. In any case, nothing really turns on

whether Rekha was discharged on 27th October 1996 or on 29th

October 1996.

22. It was also pointed out by the learned counsel for the

appellant that according to PW-1 Rahul, the hammer was lying in

the room and was handed over by him to the police, whereas

according to police officials, the hammer was got recovered by

the appellant from under the table. This is not the case of any of

the eye-witness that the appellant had thrown the hammer under

the table after causing injures to Rekha. In any case, when the

police officials came to the spot, they could not have missed to

notice the hammer lying in the room, even if it was lying under

the table, when the complainant himself had told them about use

of hammer by the appellant for causing injuries to his mother

Rekha. Obviously, the deposition of the police officials, to the

effect that the hammer was got recovered by the appellant from

under the table, is nothing but an attempt to take credit for

recovery of hammer or an attempt to create additional evidence

against the appellant by showing that the weapon of offence was

got recovered by him while in the police custody.

23. For the reasons given in the preceding paragraphs, I see

no good reason to interfere with the conviction of the appellant

under Section 307 of IPC and the same is accordingly upheld.

As regards sentence, it was pointed out by the learned counsel

for the appellant that since he had already spent more than two

years in custody, he may not be sent back to the jail. At the time

of hearing of this appeal, the injured Rekha Sharma as well as

her daughter were present in the Court and they complained

that after his release from jail, the appellant has continuously

been quarreling with them and has given beatings to them a

number of times. They had also brought written complaints

made by them to the concerned police station from time to time

against the appellant. The appellant ofcourse denied the

complaints made against him. The conduct of the appellant in

my view does not entitle him to so much leniency in the matter

of sentence so as to sentence him only to the extent of period

already spent by him in jail. Taking into consideration all the

facts and circumstances of the case, the appellant is sentenced

to undergo R.I. for 3 years and to pay a fine of Rs.25,000/- or to

undergo S.I. for 3 months in default. Out of the fine realized

from the appellant, Rs.20,000/- be paid to injured Rekha Sharma

as compensation.

Crl.A. 315/2009 stand disposed of.

One copy of this judgment be given to the appellant.

Record of the trial court be sent back along with a copy of this

judgment for committing the appellant to prison, to undergo the

remaining part of the sentence.

V.K. JAIN (JUDGE) FEBRUARY 08, 2010 bg/Ag