Vijay Singh vs State
2011 Latest Caselaw 91 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 669/1999

%                                               Reserved on: 1st November, 2010

                                                Decided on: 7th January, 2011


VIJAY SINGH                                                    ..... Appellant
                                  Through:   Mr. V.K. Shukla and Mr. A.K. Tripathi,
                                             Advocates.
                         versus
STATE                                                          ..... Respondent
                                  Through:   Mr. Manoj Ohri, APP with SI Santhosh
                                             Pabri, PS Pandav Nagar, Delhi.
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


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

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 this appeal the Appellant lays challenge to the judgment convicting

him for an offence punishable under Section 307 IPC and a sentence of

Rigorous Imprisonment for a period of five years and to pay a fine of `200

and in default of payment of fine to further undergo RI for 15 days.

2. Briefly the prosecution case is that the Appellant owed `3,000 to one

Shiv Shankar PW4 and on 11th March, 1998 he along with the Appellant went

to the room of Uncle of the Appellant near Patparganj where they were served

food. Thereafter, the said Uncle of the Appellant along with his brother-in-

law went away for their duty. When PW4 Shiv Shanker asked Vijay Singh to

return his `3,000/- which he had given to him earlier, Vijay Singh asked him

to wait till his Uncle returns back. At about 12.00 noon when the Appellant

told Vijay Singh that he had to go back to his house and again demanded his

money, the Appellant asked him to stop and took out the knife from the

pocket of his pant and gave 10-12 knife blows on the stomach, chest, back and

arm of PW4 Shiv Shanker. PW4 fell down and after some time the police

arrived and took him to the hospital. When the Appellant gave knife blows on

the person of PW4, he was only wearing an angocha (towel) tied around his

waist. As the injured was not fit for statement, his statement could not be

recorded. The FIR was registered on the statement of PW2 Subhash. On

completion of investigation, the charge sheet was filed. All the prosecution

witnesses, except PW2 who is the complainant, supported the prosecution

case. On consideration of the statements of the prosecution witnesses,

statement of the Appellant under Section 313 Cr. P.C. and his defence

evidence, the learned Trial Court convicted the Appellant as above.

3. Learned counsel for the Appellant challenging the conviction contends

that PW4 was injured on 11th March, 1998 and discharged on 6th April, 1998,

and despite the X-ray being conducted no X-ray report was filed by the

prosecution and thus, an adverse inference should be drawn. There was no

opinion of the Doctor that the injuries were fatal. As per the MLC, the

injuries have been opined to be dangerous and thus, at best the same would be

an offence either under Section 324 or 326 IPC. The prosecution case has not

been supported by the only alleged eye witness on whose statement the FIR

was registered. Despite being a populated area, no independent witness was

examined. The PCR reached at the spot and the Appellant was allegedly

apprehended on the spot. This conduct of the Appellant is inconsistent with

his guilt. There are variations in the testimony of the witnesses as to the place

of recovery of the weapon of offence. As per PW14 HC Bodan Lal, he had

apprehended the Appellant along with the knife while fleeing from the spot.

Whereas PW12 HC Ram Charan and PW15 Inspector Deshbandhu state that

when they brought the Appellant to the spot, the Appellant disclosed that the

knife was concealed beneath the gadda and got the same recovered. The

defence version has not been considered by the learned Trial Court as though

the prosecution case is that the Appellant owed `3,000/- however, in fact it

was Appellant who was to take the money from PW4 Shiv Shanker. Despite

the Appellant being not unfit to make the statement his statement was

recorded on the next day. Even the call made to the PCR was that a fight was

going on and thus the prosecution case is unreliable and the Appellant is

entitled to be acquitted.

4. Per contra learned APP for the State contends that the testimony of

PW4 Shiv Shankar, the injured is sufficient to prove the case of the

prosecution beyond reasonable doubt against the Appellant. This witness has

categorically stated about the incident and soon after the incident he was

admitted in a serious condition for nearly 25 days in the hospital. The

Appellant was apprehended at the spot along with the blood stained knife. As

per the CFSL report Ex. PW15/C, the blood stains on the knife are of human

original of „A‟ Group and the same tallied with the blood group of the injured.

The Appellant in his statement under Section 313 Cr.P.C. has admitted that

there was a scuffle at the spot and thus he admits his presence at the spot. He

was apprehended immediately thereafter on the spot. The version that the

injuries on PW4 were as a result of falling down on the broken glass pieces is

an afterthought as no such suggestion has been given to the witness. Relying

on Sunil Kumar Vs. State of NCT of Delhi, 1999 (1) JCC (SC) 92, it is

contended that for an offence punishable under Section 307 IPC the intention

and knowledge of the accused has to be looked into and whether an injury is

caused in the process is immaterial.

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

PW4 Shiv Shankar is an injured witness. In his testimony he has stated that

he along with Vijay Singh went to the room of his Uncle where they were

offered food and thereafter the Uncle of Vijay Singh along with his brother-

in-law went away for their duty. When PW4 asked Vijay Singh to pay back

his `3,000/- he asked him to wait till his Uncle comes back. Since PW4 was

in a hurry and wanted to go back to his home, he asked for his payment on

which Vijay Singh asked him to stop saying that he will pay him the money

and took out a knife from the pocket of his pant and inflicted10-12 knife

blows on the stomach, chest, back and left arm of PW4, after which he fell

unconscious. The testimony of this witness is duly corroborated by his MLC

Exhibit PW3/A which shows the following injuries on the body:

"1. Stab wound of 3" transversely placed over the epigastric region of abdomen towards the Le sub costal region.

2. A wound over the upp abdomen from wound intra abdominal viscera (on teotiur; pentoneam etc.) propping out.

3. A CIW of 5" x meesele drop over the back of Left side of chest.

4. Stab wound of 1" over the upp part of Rt. Chest anterior aspect."

6. As per PW9 Dr. A.K. Kulshreshtha, the injuries were dangerous in

nature and caused by sharp weapon. PW9 has not been cross-examined by the

Appellant and thus, his testimony has gone unchallenged. A perusal of the

injuries shows that they have been caused by sharp weapon on vital parts of

the body.

7. I do not find any merit in the contention that the X-ray of PW9 was held

back and thus, an adverse inference should be drawn against the prosecution.

Exhibit PW9/A clearly notes that the X-ray of the injured could not be done

though advised, as the patient was in a serious condition and thus, he was

taken to the operation theatre directly.

8. In the present case the testimony of PW4, the injured is further

corroborated by the testimony of PW12 HC Ram Charan who was posted at

PS Trilok Puri and had reached on receipt of DD No. 27B where he was told

by one Subhash that on the first floor of the house „Chaku chal rahe hai‟ and

that he had telephoned the police. Along with him, the PCR van also reached

and they both opened the kundi of the door of the stairs and reached upstairs

where the Appellant was present and his clothes and hands were blood

stained. He tried to run away but was caught by them. The Appellant

disclosed that Shiv Shankar was in room no. 3 and took them to room no. 3

where PW4 was lying in an injured condition while holding his stomach by

his hand on a Takht. The clothes of the Appellant, that is, the shirt and the

pant and the knife were sent to the CFSL and as per the report Ex. PW15/C

human blood of „A‟ group was detected on them which tallied with that of the

injured.

9. In Akhtar and Others v State of Uttaranchal (2009) 13 SCC 722 their

Lordships‟ held that credence to the testimony of injured eyewitness is to be

given since his presence at the scene of crime is seldom doubtful. The report

reads:

"18. In Krishan v. State of Haryana (2206) 12 SCC 459 this court has taken the view that if the prosecution case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. Similarly, in Surender Singh vs. State of Haryana (2006) 9 SCC 247 this Court has opined that:

"9. The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes."

10. In view of the overwhelming evidence on record and the fact that the

intention of the Appellant to cause injuries which if death would have been

caused, he would be guilty of murder, was evident from the fact that the

injuries were caused with a sharp weapon on the vital parts of the body, the

prosecution has proved its case beyond reasonable doubt. Thus, the

conviction of the Appellant for offence punishable under Section 307 IPC by

the learned Trial Court is fully justified. As regards the quantum of sentence,

the Appellant has undergone two months and 20 days. The Appellant has

been awarded a sentence of Rigorous Imprisonment for a period of five years

and a fine of `200/- and in default of payment of fine further Rigorous

Imprisonment for 15 days. I find no ground to interfere with the same.

11. The appeal is, accordingly, dismissed. The bail bond and the surety

bond are cancelled. The Appellant be taken into custody to undergo the

remaining sentence.

(MUKTA GUPTA) JUDGE

JANUARY 7th, 2011 vn