Chaman Lal vs State
2010 Latest Caselaw 809 Del

R-65
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 11th February, 2010

+                     CRL. APPEAL NO.732/2005

       CHAMAN LAL                                     ..... Appellant
               Through:          Mr.Vijay Singh Charak, Advocate.

                      versus

       STATE                                    ..... Respondent
                      Through:   Mr.M.N.Dudeja, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

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

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


PRADEEP NANDRAJOG, J. (Oral)

1. The appellant had filed the appeal through jail

availing the services of a legal aid counsel and from the jail

had signed on the form in the month of December 2009 that

he desires Ms.Purnima Sethi, a lawyer on the panel of Delhi

High Court Services Committee to argue his appeal.

2. The appeal has reached for hearing today and Shri

Vijay Singh Charak has appeared informing us that the appeal

was marked to him as is evidenced by the order dated

14.9.2005 admitting the appeal.

3. Learned counsel states that he would be arguing

the appeal.

4. Arguments heard.

5. Vide impugned judgment and order dated

24.11.2004 the appellant has been convicted for the offences

punishable under Section 449/307/302/506 Part-II IPC.

6. The appellant has been acquitted of the charge for

the offence punishable under Section 27 of the Arms Act.

7. Vide order on sentence dated 27.11.2004 the

appellant has been sentenced to undergo imprisonment for life

for the offence of murder. For the offence punishable under

Section 307 IPC he has been sentenced to undergo

imprisonment for 10 years. For the offences punishable under

Section 449 IPC he has been sentenced to undergo rigorous

imprisonment for 10 years. For the offences punishable under

Section 506 Part-II IPC he has been sentenced to undergo

rigorous imprisonment for 5 years.

8. All sentences have been directed to run

concurrently. We read the order on sentence to mean that

save and except the sentence for life which by its very nature

has to enure for the life, subject to the power of the State to

grant remission as per policy, other sentences shall run

concurrently.

9. As per the charge framed against the appellant the

offence of murder pertained to the appellant entering the

ground floor on House No.H-2/891 at around 6:00 AM on

26.8.2002 and assaulted Laxman who was declared 'brought

dead' at the hospital. The offence punishable under Section

307 IPC relate to the injuries caused on Shanker. The offence

punishable under Section 449 IPC relate to having entered the

house afore-noted in order to commit the offence of murder.

The offence punishable under Section 506 Part-II IPC is for

having criminally intimidating Hema Devi, the wife of the

appellant, being the sister of Laxman and Shanker.

10. Ignoring the incriminating evidence pertaining to

the recovery of the knife Ex.P-6 at the instance of the

appellant on account of no public witness being associated at

the time of the recovery, the learned Trial Judge has acquitted

the appellant of the offence punishable under Section 27 of the

Arms Act. The State has not filed any Petition seeking Leave

to Appeal qua the appellant's acquittal for said offence. The

decision of the learned Trial Judge has attained finality to that

extent.

11. SI Rajinder Kumar PW-11 was entrusted with the

investigation after DD No.8-A was recorded at PS Jahangirpuri

at around 6:38 PM about the incident and he went to House

No.H-2/891 Jahangirpuri where he saw blood. On learning that

two brothers - Laxman and Shanker had been taken to Babu

Jagjiwan Ram Memorial Hospital by their neighbour Ganesh he

reached Babu Jagjiwan Ram Memorial Hospital, where with

reference to MLC Ex.PW-7/A prepared by Dr.P.D.Majumdar, he

learnt that Laxman was brought dead. As recorded on the

MLC, Shanker and Ganesh, stated to be the brother and a

neighbour respectively of Laxman, had brought him to the

hospital at around 7:05 AM on 26.8.2002.

12. SI Rajinder Kumar recorded the statement Ex.PW-

1/A of Shanker who disclosed how the appellant had entered

their house and had threatened Hema Devi, the wife of the

appellant and had thereafter assaulted Laxman and himself

i.e. Shanker and that Ganesh brought both of them to the

hospital.

13. Making an endorsement Ex.PW-11/A beneath the

statement Ex.PW-1/A SI Rajinder Kumar got the FIR Ex.PW-8/A

registered at around 8:35 AM.

14. Since the spot investigation relate to blood-stained

articles lifted at the spot and the photographs taken and

nothing turns thereon, we proceed straightway to note that the

dead body of Laxman was sent to the mortuary where

Dr.R.K.Puniya PW-19 conducted the post-mortem and prepared

the report Ex.PW-19/A noting thereon 5 incised stab wounds

inflicted on Laxman. All injuries were opined to be ante-

mortem and injury No.4 was held to be sufficient to cause

death in the ordinary course.

15. Injury No.4, as per the post-mortem report and the

testimony of Dr.R.K.Puniya is a stab incised wound horizontally

placed over front of left side chest, piercing the muscles of the

fourth intercostal space the weapon of offence penetrated the

left lung and as a result thereof the left cavity collapsed. 2000

ml of blood was detected in the collapsed lung.

16. It is apparent that the witnesses of the prosecution

would be Shanker, Hema Devi the wife of the appellant and

the sister of Shanker and Laxman, as also Ganesh.

17. There is another witness cited by the prosecution

by the name of Sona Devi wife of Babulal resident of H-2/896

Jahangirpuri i.e. a lady living in the neighbourhood of Shanker

and Laxman.

18. Shanker has deposed that his sister Hema Devi was

married with the appellant and that he i.e. Shanker along with

his brother Laxman and Manoj were residing in House No.H-

2/891 Jahangirpuri. In the night, the brothers were sleeping in

their house. Their sister Hema Devi was also in their house.

Hema Devi had come to their house because she was beaten

by the appellant. Next morning, at around 6:00 AM the

appellant came with the knife Ex.P-6 in his hand and shouted

that Laxman would not be spared. He i.e. Shanker tried to

prevent the attack on Laxman but he did not succeed, having

received an injury on his left arm with the chhura. His sister

Hema Devi tried to rescue Laxman but she was intimidated

with the knife by the appellant. His brother was stabbed.

Their neighbour Ganesh took both of them to Babu Jagjiwan

Ram Memorial Hospital in a rickshaw where after examining

Laxman, the doctor declared him dead. Police reached the

hospital and recorded his statement Ex.PW-1/A which bore his

left thumb impression.

19. He deposed facts of the various exhibits lifted at

the spot where the crime took place, of which we take no

notice as nothing much turns thereon save and except the

proof of the fact that the crime took place in the house of the

deceased, a fact which is even otherwise proved through the

testimony of the eye-witnesses, and that said fact shows that

Shanker was not fatally assaulted.

20. Shanker has been cross-examined at length and

nothing has been brought out to discredit his testimony.

21. Hema Devi PW-2 corroborated the testimony of her

brother PW-1 in respect to what happened in the house of her

brothers and as deposed to by Shanker.

22. Hema Devi has been cross-examined very briefly

and we find that her testimony has remained unshattered.

23. Ganesh PW-3 has deposed that in the morning of

26.8.2002 at around 6/6:15 AM, he heard shouts from the

house of Laxman, Shanker and Manoj. He came out of his

house and saw Shanker carrying his injured brother Laxman.

On seeing them he arranged a rickshaw and took Laxman and

Shanker to Babu Jagjiwan Ram Memorial Hospital where

Laxman was declared 'brought dead' by the doctor who

examined him.

24. Sona Devi PW-4, deposed that she had left her

house in the early morning hours on 26.8.2002 to purchase

milk and on the way when she reached near the house of

deceased Laxman, she saw the appellant coming out of

Laxman's house with a knife in his hand and he was saying

"maine Laxman ka kaam tamam kar diya hai". So saying the

appellant ran away. She went inside the house and saw

Laxman in a pool of blood. Shanker and Ganesh took Laxman

to the hospital in rickshaw.

25. Sona Devi has been cross-examined but nothing

has been brought out to discredit her testimony.

26. Dr.R.Sinha PW-7, a colleague of Dr.P.D.Majumdar

proved the MLC Ex.PW-7/A prepared by Dr.P.D.Majumdar since

Dr.P.D.Majumdar had left employment under Babu Jagjiwan

Ram Memorial Hospital. He deposed that he had seen and

hence was familiar with the writing and signatures of

Dr.P.D.Majumdar. He deposed that as per MLC, 5 incised stab

wounds were noted by Dr.P.D.Majumdar on the MLC Ex.PW-

7/A.

27. SI Rajinder Kumar PW-11 has deposed facts till FIR

was registered and the spot investigation conducted by him.

28. Dr.R.K.Puniya PW-19 who conducted the post-

mortem on the dead body of Laxman has proved the post-

mortem report Ex.PW-19/A.

29. We have gone through the Trial Court Record with

the assistance of learned counsel for the parties. We have

also gone through the statement of the appellant under

Section 313 Cr.P.C. but do not find anywhere any evidence

pertaining to the nature of the injuries suffered by Shanker

save and except the statement of Shanker that he received an

injury on his arm when appellant struck a blow with a chhura

and the testimony of Hema Devi that Shanker received an

injury with a knife. The MLC of Shanker has not even been

filed, much less proved.

30. We are surprised that inspite of the fact that in para

64 of the impugned decision the learned Trial Judge has noted

as aforesaid, yet the appellant has been convicted for the

offence punishable under Section 307 IPC pertaining to the

injury suffered by Shanker.

31. It is settled law that to establish the charge

punishable under Section 307 IPC it has to be established that

the act of the accused was life threatening. It has to be

proved that if by the act death would have resulted the

offence would be that of murder, only then, upon the victim

surviving is the offence of attempt to murder made out.

32. We fail to understand as to how in the absence of

Shanker's MLC being proved or there being evidence that

Shanker was stabbed in a vital part of the body the offence

would be attracting Section 307 IPC.

33. The learned Trial Judge has ignored the fact that

the injury suffered by Shanker, though not proved through the

medium of MLC, was a simple and superficial injury for the

reason Shanker has returned to the spot the same day along

with the police and has assisted in the preparation of the

rough site plan. He is a witness to all the seizure memos

prepared at the spot which as per the testimony of SI Rajinder

Kumar PW-11 were prepared the same day after FIR was

registered.

34. It is thus apparent that pertaining to the injury

caused to Shanker the offence committed by the appellant is

not of attempt to murder but of voluntarily causing hurt using

a dangerous weapon.

35. Conscious of the fact that recovery has failed, but

that would mean relatable to the chhura Ex.P-6, all eye-

witnesses have deposed that the appellant had a knife in his

hand.

36. Thus, pertaining to injury caused to Shanker, the

offence committed by the appellant is punishable under

Section 324 IPC.

37. Pertaining to the other offences for which the

appellant has been convicted, with reference to the post-

mortem report of the deceased, we see hardly any scope for

any argument that it is not a case of murder. The intention of

the appellant can be gathered by the evidence, being that he

came armed with a knife. Before launching the assault he said

that he would not spare Laxman. He was angry because

Laxman, Shanker and Manoj had given shelter to their sister

who was the wife of the appellant. The wife of the appellant

had taken shelter in the house of her brothers as the appellant

used to beat her.

38. The evidence on record establishes that the

appellant, with the intent of murdering Laxman, came armed

with a knife. Notwithstanding he being a relation of the

deceased we are satisfied that he entered the house of the

deceased with the intent to commit an offence of murder. We

are satisfied from the evidence on record that the prosecution

has proved the commission of the offences punishable under

Section 302/449/506 IPC.

39. The appeal is partially allowed.

40. Conviction of the appellant and the relatable

sentence thereto for the offence punishable under Section 307

IPC qua the injury caused to Shanker is set aside and for the

injury caused to Shanker the appellant is convicted under

Section 324 IPC and is sentenced to undergo imprisonment for

a period of two years.

41. The conviction and the sentence imposed upon the

appellant for the other offences is sustained.

42. Needless to state, after having suffered the

sentence of imprisonment for two years the sentence imposed

upon the appellant for the offence under Section 324 IPC

would be treated as having run concurrently.

43. The appeal stands disposed of.

44. Noting that the appellant is still in jail, we direct

that a copy of this order be sent to the Superintendent, Central

Jail, Tihar for necessary entries to be made in the jail register

and thereafter to be handed over to the appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

FEBRUARY 11, 2010 dkb