Sagar vs State
2010 Latest Caselaw 4486 Del

R-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 710/2009

                             Date of decision: 23rd /27th September, 2010

      SAGAR                                           ..... Petitioner
                          Through Mr. Anuj Soni, Amicus Curiae.

                    Versus

      STATE                                           ..... Respondent
                          Through Ms. Fizani Husain, APP for the
                          State.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

1. The appellant by the impugned judgment dated 27th April, 2009 has been convicted under Section 307/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC, for short) and sentenced to rigorous imprisonment of seven years and to pay fine of Rs.5,000/- and in default, suffer simple imprisonment of three months.

2. Learned Amicus Curiae for the appellant has submitted that the appellant was not named by the victim /complainant -Naseem in the MLC Exhibit PW-8/7. He further submits that the appellant was arrested as per the prosecution case on 21st July, 2007 vide arrest memo Ex.PW- 5/A. The co-accused Ravi Shankar @ Kale was arrested on 10th July, 2007. He has also relied upon the testimony of PW-6, Mohd. Sarver, the other eye witness and the maternal uncle of PW-2, Naseem.

3. PW-6, Mohd. Sarver did not identify the appellant or the co- accused Ravi Shankar @ Kale in the court and has stated that he did not

CRIMINAL APPEAL NO. 710/2009 Page 1 know the accused, who were present in the court. However, in his statement PW-6 Mohd. Sarver has stated that on 21st June, 2007 at about 5.30 p.m. when he was on his way to a mosque in J.J. Colony, Ashok Vihar, Delhi to offer namaz, three boys tried to commit robbery. He raised an alarm and his nephew Naseem came there. One of the three boys hit a razor on the neck of the Naseem. He and Naseem raised alarm. The three boys ran away. Thereafter uncle and aunt (Tau and Tai) of Naseem came there and took him to the hospital while he went to offer namaj. On being cross-examined by the learned APP, PW-6, Mohd. Sarver denied the suggestion that he knew the accused persons previously or had entered into any compromise or was won over. Thus PW-6 Mohd. Sarver has confirmed the incident but he has not identified the appellant as the person who had committed the said acts.

4. PW-2, Naseem in his statement has stated that on 21st June, 2007 at about 5.30 p.m. he was present in his shop in jhuggi No. 448, J.J. Colony, Wazirpur, Delhi. He heard noise „help help‟ (bachao bachao). He went outside to the street and saw that three boys were trying to rob his maternal uncle Sarver Ali. He knew two assailants, viz., Ravi Shankar @ Kale and Sagar, the appellant but he did not know the third assailant. He tried to save his uncle from them. The appellant-Sagar uttered "bada badmash banta hai" (you are acting as a big hoodlum). Thereafter, co-accused Ravi Shankar @ Kale and the third person caught hold of Naseem and the appellant-Sagar took out a razor (ustra) from his pocket and and hit him on his neck. He cried for help and fell down on the ground and became semi-unconscious. The assailants ran away. Uncle and aunt of PW-2, Naseem came there and took him to Sunder Lal Jain Hospital for medical treatment. He was discharged from the hospital after three days. In his cross-examination, PW-2 Naseem has stated that the accused were known to him as they used to live in the

CRIMINAL APPEAL NO. 710/2009 Page 2 same locality and he used to sit with his father at his kabadi shop.

5. As per the MLC Exhibit PW-8/7, PW-2, Naseem was brought to Sunder Lal Jain Hospital at about 5.45 p.m. The MLC records alleged history of assault by unknown person in Wazirpur J.J. Colony at about 5.30 p.m. It is not recorded who had given the said statement. The patient, i.e., Naseem was declared fit for statement at about 8 p.m. as is clear from noting at point X of Exhibit PW-8/7. Thereafter, statement of Naseem was recorded and on the basis of his statement, FIR No. 426 dated 21st June, 2007, Police Station, Ashok Vihar was registered at 08.45 PM. This statement has been proved as Exhibit PW-2/A. In the FIR and the statement names of the appellant-Sagar and Ravi Shankar @ Kale are mentioned. The name of the third assailant is not mentioned. It is clear from the cross-examination that there was no previous enmity or ill will between PW-2, Naseem, the complainant/victim and the appellant-Sagar. No such allegation has been made or suggestion given. Appellant-Sagar in his statement under Section 313 of the Code of Criminal Procedure, 1973, in response to question No. 8 why witnesses had deposed against him, has stated that they are interested witnesses and police officers. He has not alleged and stated that he had previous enmity or dispute with PW-2, Naseem. In these circumstances, learned trial court has rightly relied upon and accepted the statement of PW-2, Naseem that he was attacked by the appellant with a razor (ustra) while the other two co-accused had caught hold of his arms/hands.

6. The mere fact that the appellant was subsequently arrested only on 21st July, 2007 vide Exhibit PW-5/A does not in any way weaken the case of the prosecution or casts doubt on the testimony of PW-2, Naseem. PW-2, Naseem has stated that 15 days after he was discharged from the hospital, he saw accused Ravi Shankar @ Kale in his jhuggi.

CRIMINAL APPEAL NO. 710/2009 Page 3 He then called up the police and the said accused was arrested. Subsequently, another accused, viz., Rahul, who is facing trial before the Juvenile Board was arrested on 12th July, 2007 and appellant Sagar was arrested on 21st July, 2007. PW-9, ASI Nand Kishore has stated that after recording the statement of Naseem on 21st June, 2007 Exhibit PW- 2/A, they had searched for the accused and had gone to the house of the appellant-Sagar. He was not found there. Accused Ravi Shankar @ Kale was also found to be missing from his jhuggi. Subsequently, both of them were arrested. He has stated that rukka was sent to the police station at about 8.15 p.m. on 21st June, 2007, the site plan was prepared at 9 p.m. on the said date and FIR was registered at 8.50 p.m. Thus the injury suffered by PW-2 Naseem and the involvement of the appellant is proved and established beyond doubt.

7. Learned Amicus Curiae has submitted that Section 307 IPC is not attracted as the appellant did not have any intention to cause death and there was no intervening act or circumstance which saved the victim Naseem. It is further submitted that as per the oral testimony of PW-2, Naseem, the appellant-Sagar had no intention or knowledge to commit murder as defined in Section 300 IPC. The aforesaid contention of the appellant merits acceptance as there is no evidence or material on record to suggest or show that the appellant wanted to commit murder as defined in the four clauses to Section 300 IPC.

8. Section 307 IPC requires an inquiry into the intention and knowledge of the accused and whether or not by his act he intended to cause death which would amount to murder as defined in Section 300 IPC. Intention or knowledge of the accused and his action should satisfy the requirements of Section 300, though the victim may not have died or even suffered any injury. The accused should have attempted to commit murder without success. Distinction, therefore, must be made between

CRIMINAL APPEAL NO. 710/2009 Page 4 the act and the result or the injuries suffered. Mere fact that the victim had a providential escape and suffered relatively light injuries will not absolve the accused from the rigors of Section 307 IPC if it is proved that he had the intent to commit murder. As per the prosecution case, the appellant-Sagar had inflicted injuries, which he had intended on the victim-Naseem. Statement of PW-2, Naseem also does not throw any light on the question whether the appellant had intended to cause a graver or a more serious injury than the one which was actually inflicted and suffered by him. There is no evidence to show that the injury suffered by the victim Naseem was with the intent and knowledge to cause death or was sufficient in ordinary course of nature to have caused death. Exhibit PW-8/7 records that the patient had suffered a grievous injury and not a simple or dangerous injury. It also records that the patient, PW-2, Naseem had become fit for statement about two hours after his admission in the hospital. PW-2, Naseem was not operated and no surgery was required. He was discharged after 3 days. It is also noticed that PW-6, Mohd. Sarver, despite the injury, had not accompanied the victim PW-2, Naseem to the hospital and had gone to offer namaz. The prosecution has not led any evidence to show and establish that the bodily injury caused to the victim Naseem was sufficient in the ordinary course of nature to cause death. There is no evidence to also suggest that the appellant wanted to cause some other injury but because of providence or an intervening act, a cause or even good luck the said injury was not inflicted.

9. However, the case will fall under Section 320 read with Section 326 IPC. It is clear from the MLC Exhibit PW-8/7 that PW-2, Naseem, the victim, that he had suffered a huge gash of 20x5x1cm from the right side of the neck extending from middle part of the neck from midline upto right part of auricular region. There is also another injury of

CRIMINAL APPEAL NO. 710/2009 Page 5 1x.5cm on the ear pinna. Though the weapon of offence has not been recovered but the fact that the injury is caused by a sharp weapon is established from the MLC Exhibit PW-8/7. In view of the statement of the victim PW-2, Naseem, it is clear that a razor (ustra), which is a dangerous weapon, was used to cause the said injury. Looking at the nature of injuries suffered, it is clear that the same can be regarded as hurt which is dangerous to life. The injury has been effected on the neck, which is a vital, sensitive and a vulnerable part of the body.

10. Therefore, giving benefit of doubt to the appellant-Sagar, his conviction under Section 307 IPC is set aside and his conviction is converted into Section 326 IPC.

11. The next question, which arises for consideration, is the quantum of sentence. As noticed above, the appellant was sentenced to seven years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine, simple imprisonment of three months for offence under Section 307 IPC. The said conviction has now been converted into one under Section 326 IPC, which is punishable with imprisonment for life or imprisonment for a term, which may extend to ten years and with fine. Learned trial court while determining the quantum of sentence has noticed the plea raised by the learned defence counsel that the appellant was the sole bread earner of his family consisting of his wife and a minor daughter. It was also alleged that he is a man of clean antecedents. However, it is noticed from the nominal roll that the appellant is also involved in other FIR No. 379/2006 under Section 392/411/34 IPC but the final outcome of the said FIR is not known. The jail conduct of the appellant has been satisfactory and nothing adverse is stated. Keeping in view the aforesaid facts, the appellant is convicted to rigorous imprisonment for five years with fine of Rs.5,000/- and in default of

CRIMINAL APPEAL NO. 710/2009 Page 6 payment of fine, suffer simple imprisonment of three months. The appeal is accordingly partly allowed. Copy of this order will be sent to the appellant through Jail Superintendent.

12. Learned Amicus Curiae will be paid Rs.5, 000/- by the Delhi High Court Legal Services Committee for his appearance and assistance.

SANJIV KHANNA, J.

      SEPTEMBER 23/27, 2010
      VKR




CRIMINAL APPEAL NO. 710/2009                                        Page 7