Atul Chandra Dass vs State
2011 Latest Caselaw 2278 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL. APPEAL NO.764/2010 & Crl. MB 914/2010


%                                               Reserved on: 11th February, 2011

                                                Decided on: 28th April, 2011

ATUL CHANDRA DASS                                              ..... Appellant
                Through:                     Ms. Sonia Raina, proxy counsel.

                         versus

STATE                                                         ..... Respondent
                                  Through:   Mr. Pawan Bahl, APP.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Not Necessary

2. To be referred to Reporter or not?                    Yes

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

MUKTA GUPTA, J.

1. By the present appeal the Appellant lays a challenge to the judgment

dated 15th July, 2009 convicting the Appellant for offence punishable under

Section 307 IPC and the order on sentence dated 18 th July, 2009 directing him

to undergo Rigorous Imprisonment for seven years and to pay fine of `3,000/-

and in default of payment of fine to further undergo Simple Imprisonment for

three months.

2. Briefly the prosecution case is that one Mansoor and the Appellant were

working as waiters in the marriage parties etc. with one contractor Guddu and

they used to sleep in Rain Basera. On 1st May, 2006 a quarrel ensued between

the Appellant and Guddu when the Appellant demanded `200 from him as he

had received the payment from the owner. The Appellant was under the

influence of alcohol and when they tried to make the Appellant understand,

they were sent out from the Rain Basera by its in-charge. Outside the Rain

Basera, they again had a quarrel and the Appellant took out a surgical blade

from the dub of his pant and gave injury on the front side of the neck of

Mansoor. The Appellant was overpowered when he was trying to run away

with the help of three more persons who were passing by and was handed

over to the police persons who were present patrolling there. After the

investigation, charge sheet was filed and after examination of the prosecution

witnesses and Appellant under Section 313 Cr.P.C. the Appellant was

convicted as above.

3. Learned counsel for the Appellant contended that there are material

contradictions in the testimony of PW1 Mansoor. Despite of his being injured

and suffering from a dangerous injury, he had sufficient energy to hand over

the Appellant to the police. The Appellant allegedly asked for money from

Guddu and thus, there was no reason why he would have inflicted injury on

PW1 Mansoor, leaving aside PW2 Guddu. Though PW1 Mansoor in his

examination-in-chief says that after apprehending the accused with the help of

Guddu and two three more persons who were passing by from that place, the

accused was handed over to the police, however, in his cross-examination he

says that the police met him in the hospital. PW1 has further stated that PW2

Guddu was their contractor whereas PW2 Guddu states that PW1 Mansoor

was their head. Despite number of public persons having collected and

allegedly apprehending the Appellant, no public person was examined as a

witness. Since the Appellant was admittedly heavily drunk, no intention to

kill can be attributed to him. As per the MLC, PW1 Mansoor was taken to the

hospital by PW2 Guddu and the alleged history of assault is by an unknown

person. As PW2 had taken PW1 to the hospital, he should have named the

Appellant as the assailant since he knew the Appellant. The injury was

opined to be grievous after 21 days. Even as per the prosecution case, the fight

was at the spur of the moment and the Appellant was not the aggressor. PW4

has not deposed about the recovery of surgical blade and in his cross-

examination states that no proceedings took place in his presence except the

arrest memo being prepared. The version of PW5 Constable Rajesh who

allegedly saw the incident that two boys were quarreling and grappling with

each other and gave a surgical blade to ASI Vijay Kumar from the right side

pocket of his pant and that of PW4, Constable Suryakant who had reached at

the spot of the incident with SI Vijay Kumar and has deposed that the

Appellant has allegedly produced a blade before PW11 SI Vijay Kumar from

the right side pocket, are highly improbable. In case the Appellant was still

grappling with PW1 or PW3 when PW5 saw them, then there was no occasion

for the Appellant to have put the blade in his pocket. The witnesses have

stated that the blade was blood stained however, as per the CFSL report

Ex.PW11/B blood was not detected on the surgical blade. The Appellant also

received injury and there is failure to explain the injuries on the Appellant by

the prosecution. Reliance is placed on Provincial Government C.P. and Berar

vs. Abdul Rahman s/o Ubehdulla Musalman, AIR (30) 1943 Nagpur 145 to

contend that injury on chest by knife itself is not sufficient to prove the

requisite intention or knowledge contemplated in Section 307, IPC. Relying

on Prabhu vs. State of Karnataka, 2001 Cri.L.J 1427 it is contended that the

Courts must guard against half baked unprofessional opinions that are based

on a very unrealistic and immature knowledge of medical science. In the

present case though the MLC states that the patient was conscious and the

blood pressure was normal however, he was still declared unfit for statement

which strongly casts a doubt upon the true opinion. No opinion of the doctor

has been sought whether the injury caused could result in death and thus, no

conviction under Section 307 IPC is warranted. Reliance is placed on

Kulamani Sahu and another vs. State of Orissa, 1994 Cri.L.J. 2245 wherein

the conviction under Section 307 IPC was altered to one under Section 326

IPC as there was no medical evidence to show that the act of throwing acid on

face and eyes of the injured would have caused death. Simply because the

injury has been caused on the vital part and the weapon used is sharp, the

same is not sufficient to bring the offence under the ambit of Section 307 IPC

as reported in State of Punjab vs. Bant Singh and another, 1996 Cri.L.J. 3886.

Relying on Tukaram Gundu Naik vs. State of Maharashra, 1994 Cri.L.J 224

(SC) and Dharma Pal vs. State of Punjab, 1993 Cri.L.J 2856 (SC) it is

contended that even if the Appellant is convicted for an offence punishable

under Section 307 IPC, the sentence awarded to him is extremely high as he

has been awarded a punishment of Rigorous Imprisonment for seven years.

Thus, the Appellant be either acquitted or released on the period of

imprisonment already undergone.

4. Learned APP for the State on the other hand contends that PW1

Mansoor and the Appellant were working as daily wagers. There is no

contradiction in the testimony of PW1 and PW2. Though the initial money

demanded was `200/- but later on the Appellant came down to `50/-. PW1 is

the injured witness and his testimony cannot be washed away merely in view

of minor contradictions which do not go to the root of the matter. There is no

suggestion given to PW1 or PW2 that the salary of the Appellant was with

PW2. The prosecution has proved beyond reasonable doubt the incident and

the injury caused by the Appellant to PW1. The Appellant was arrested at the

spot and the recovery of weapon of offence, that is, the surgical blade was

made at the spot itself. The ingredients of Section 307 IPC are clearly

attracted. It is thus prayed that there is no merit in the appeal and the same be

dismissed.

5. I have heard learned counsel for the parties and perused the record.

PW1 Mansoor is the injured witness in this case. He has stated that after

working on the night of 29th and 30th April, 2006 they came back to Rain

Basera, Ravi Dass Colony, Nabi Karim on 1 st May, 2006. Besides working as

a plumber, he was working as waiter in the marriage parties etc. The

Appellant was also working as a labourer with him and PW2 Guddu was the

contractor under whom they were working. When they reached Rain Basera,

the Appellant demanded `200 from PW2 Guddu as he had received the same

from the owner. Despite making him understand, the Appellant did not relent

and thus they were sent out of the Rain Basera by Mahinder Pal PW3 who

was the in-charge of the Rain Basera. When they came out, PW2 and PW1

caught hold of the Appellant to hand him over to the police. However, the

Appellant fell down on the shutter of the Shyam Tent House. Immediately the

Appellant got up and took out a surgical blade from the dub (belt side) of his

pant and gave injury on the front side of his neck. The Appellant tried to run

away but he was caught hold of by him and PW2 and two three other people

passing from there. In the meantime, the police reached and the Appellant

was handed over to the police. PW1 remained admitted in the hospital for six

days. His t-shirt and gamcha which were used for stopping the blood were

blood stained and were seized. He identified the same as Ex.P1 and Ex.P2.

This witness also identified the surgical blade Ex.P3 by which injury was

inflicted on his neck.

6. Learned counsel for the Appellant has sought to discredit the testimony

of this witness on the count that in his cross examination he has contradicted

his version in the examination-in-chief, like, in his examination-in-chief, he

has stated that the Appellant was demanding `200 from PW2 whereas in the

cross examination, this witness has stated that the Appellant was demanding

`50. A perusal of the testimony of PW1 shows that this witness in the cross-

examination itself has clarified that initially the Appellant demanded `200

however, subsequently he ended up demanding `50 only. Learned counsel for

the Appellant has also sought to discredit the testimony of this witness on the

ground that though he was given an injury by the surgical blade on the neck,

however, he still had the courage to catch hold of the Appellant which is

highly improbable. From the narration of events and the cross examination

which version is duly corroborated by the other witnesses, it is clear that the

quarrel was going on and after falling on the closed shutter of the shop, the

Appellant immediately got up and gave a blade blow on the neck of PW1 and

thereafter he was caught hold of by PW1 and PW2 along with public persons.

PW1 immediately on being inflicted with the surgical blade would not have

been incapacitated to the extent that he could not have caught hold of the

Appellant. The testimony of this witness is duly corroborated by the

testimony of PW2 Guddu whose presence on the spot is verified by the

testimony of PW3. PW2 in his testimony has corroborated the version of

PW1. Despite being cross-examined, nothing material has been elicited from

this witness to discredit the prosecution case. The testimonies of PW1 and

PW2 are further corroborated by that of PW3 Mahinder the in- charge of the

Rain Basera who is an independent witness. PW3 has stated that on the 1 st

May, 2006 at about 6.30/6.45 P.M., he was present in the Rain Basera and a

quarrel took place between the Appellant, Guddu and Mansoor. He asked

them to go out and they left the Rain Basera. PW3 has also proved by the

entries contained in the register that the Appellant, PW1 and PW2 were

staying at the Rain Basera. Though there was no entry for the 1 st May, 2006,

however this fact has been clarified that the entries in Rain Basera are made at

7.00 P.M. and as is apparent in this case that at 6.30/6.45 P.M. the quarrel

took place when they were sent out and thereafter the incident occurred and

PW1 was sent to the hospital and the Appellant was arrested. The testimony

of PW1 and PW2 is further corroborated by PW5 Constable Rajesh who was

on patrolling duty on 1st May, 2006, who found two boys grappling with each

other and blood was oozing out of the neck of one person whose name later

came to be known as Mansoor. He had identified the Appellant as the person

who was present at the spot. He caught hold of the Appellant and sent

Mansoor to the hospital with Guddu. The testimony of PW1 and PW2 is

further corroborated by DD No. 28A Exhibit PW8/A which was a call

received about the incident that a boy had been hit on the neck by a knife.

The MLC and the discharge summary Ex.PW10/B of PW1 also corroborates

the version of PW1. The fact that no blood was detected on the surgical blade

as per the FSL report Ex.PW11/B explains the version of PW 4 who stated

that the recovery of the surgical blade was from the pocket of the Appellant

and thus, the blood if any would have been wiped out by the cloth.

7. For dealing with the contention of the learned counsel for the

Appellant that from the facts proved an offence under Section 307 IPC is not

made out, it will have to be seen from the facts of the present case whether the

Appellant can be said to be possessed of the said intention necessary for

constituting the offence punishable U/s 307 IPC or not. In Ratan Singh v

State of M.P. & Anr. 2009 (12) SCC 585, their Lordship's held that whether

the accused is possessed of the intention to commit an offence punishable

under Section 307 IPC or not has to be gathered from the facts and

circumstances surrounding the offence. In the present case the admitted

position is that the quarrel ensued between the Appellant and PW2 on the

issue of money, when PW1 also intervened. In such a situation it cannot be

said that the Appellant came with a premeditated mind for the offence of

attempt to commit murder. The quarrel was going on only verbally and when

the Appellant fell on the door of the closed shutter of the shop. It is then that

he immediately got up and gave a surgical blade blow injury to PW1. From

this it can be inferred that the infliction of the blade injury was instant and not

pre-planned and motivated. Thus, it cannot be said that the Appellant had

caused the injury with the intention to commit murder of PW1. The Appellant

certainly had the knowledge that the injury caused by the Appellant could

cause death of PW1 as he inflicted the surgical blade blow on the neck of

PW1. From the facts proved, it can safely be inferred beyond reasonable

doubt that the Appellant inflicted the injury with an intention to commit

culpable homicide not amounting to murder and is thus liable to be convicted

for offence punishable under Section 308 IPC.

8. In view of the discussion above, the conviction of the Appellant is

modified to one for an offence punishable under Section 308 IPC. The

Appellant has been in custody for a period of five years and five months and

thus his sentence is modified to the period of imprisonment already

undergone.

9. Appeal and the application are accordingly disposed of. The Appellant

is in custody. He be released forthwith by the Superintendent of Jail, if not

required in any other case.

(MUKTA GUPTA) JUDGE April 28, 2011 vn