Delhi High Court
Javed @ Zubar vs State on 11 July, 2012
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1403/2011 & Crl.M.B. 1976/2011
% Reserved on: 16th April, 2012
Decided on: 11th July, 2012
JAVED @ ZUBAR ..... Appellant
Through Mr. Anand P. Jain and Mr. Punit Jain,
Advs.
versus
STATE ..... Respondent
Through Mr. Manoj Ohri, APP.
+ CRL.A. 159/2012 & Crl.M.B. 264/2012
MUKESH ..... Appellant
Through Mr. Manoj Kumar Singh, Adv.
versus
STATE (GOVT OF NCT) OF DELHI ..... Respondent
Through Mr. Manoj Ohri, APP.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By these appeals the Appellants challenge the common judgment
dated 13th September, 2011 whereby they have been convicted for offence
punishable under Section 307/34 IPC and the order on sentence dated 19th
September, 2011 whereby Appellant Javed has been directed to undergo
rigorous imprisonment for a period of three years and a fine of Rs. 5000/-
and in default of payment of fine to further undergo simple imprisonment for
five months and Appellant Mukesh has been directed to undergo rigorous
imprisonment for a period of four years and a fine of Rs. 1000/- and in
default of payment of payment of fine to undergo simple imprisonment for
one month.
2. Learned counsel for the Appellant Javed contends that the name of the
Appellant appeared for the first time in the charge-sheet with the aid of
Section 34 IPC. All the material witnesses have turned hostile including the
injured witness. Thus the present is a case of no evidence. The weapon of
offence has not been recovered from the Appellant Javed. As per the FSL
report no blood has been detected on the scissor i.e. the alleged weapon of
offence. Further, no finger prints have been lifted from the weapon of
offence. The recovery of weapon of offence has been disbelieved by the
learned Trial Court as it was from an open public place. The motive of
alleged offence has not been proved by the prosecution as it is alleged that
there was an earlier FIR between the parties. Further, the said FIR had
already been compromised.
3. Learned counsel for the Appellant Mukesh while reiterating the
contentions made by the learned counsel for Appellant Javed further
contends that there are two contradictory opinions with regard to the nature
of injuries received by PW-1. PW-9 has opined the injuries to be dangerous
in nature whereas PW-10 has opined the injuries to be grievous in nature.
The injuries cannot be both dangerous and grievous at the same time as held
by the learned Additional Sessions Judge. Further, PW-5 from whose shop it
is alleged that the scissor was taken has turned hostile and has not supported
the prosecution case. Mensrea has not been proved as there is no pre-
meditation. The Appellants met suddenly and a quarrel took place, thus
resulting in the injury if any. The Appellants had no intention to cause any
injury which was likely to cause death, which intention can be gathered from
the kind of alleged weapon used. Thus, at best the case of the prosecution
falls within the ambit of Section 308 IPC. Hence the Appellants be acquitted
of the charges framed or in the alternative convicted for the lesser offence
and the sentence be reduced to the period already undergone.
4. Learned APP for the State on the other hand contends that PW-1 Sonu
Kumar, the injured has fully supported the prosecution case. He has stated
that the Appellant Javed caught hold of him and Appellant Mukesh stabbed
him. The incident occurred around 9.00 PM and as per the MLC the injured
reached the hospital by 11.00 AM. There is no contradiction in the nature of
injuries opined by the two doctors. Even PW-11 has partially supported the
prosecution case as he states that he had called Police after the quarrel. In
view of the cogent and convincing testimony of PW-1 the prosecution has
proved its case beyond reasonable doubt against the Appellants. Hence, the
appeals be dismissed.
5. I have heard learned counsel for the parties and perused the record.
PW-1 Sonu the injured witness has stated that 6/7 months ago at about 9.00
PM he reached Prem Nagar - III near Shanni Bazar where both the
Appellants were present and a quarrel ensued. The witness correctly
identified the two Appellants as the accused. Appellant Javed caught hold of
PW-1 and Appellant Mukesh stabbed him with scissors in his chest. PW-1
had previously made a complaint against the accused persons which was
settled with the intervention of the local Police. After being stabbed PW-1
lost consciousness and remained in the hospital for 22 days with 10 days in
ICU. His blood stained clothes and T-shirt were seized by the Doctors and
handed over to the Police. He identified his blood stained clothes and the
scissor used for causing injury to him. This witness in his cross-examination
by the Public Prosecutor admits that he had earlier lodged FIR No. 70/2006
under Section 279/327/323/34 IPC against both the co-accused persons on
the 20th February, 2008. He has further stated that Appellant Mukesh picked
up scissors from the shop of a Barber nearby and attacked him saying that he
would teach him a lesson for his previous complaint and stabbed him in the
abdomen. A suggestion was given to this witness that he misbehaved with a
woman who was the fiancee of Appellant Javed, or that he compromised the
FIR on the undertaking that he would not misbehave with the said woman.
Besides the complainant, the other alleged eye-witness i.e. PW-8 Najma
Khatoon has turned hostile. Though there is no dispute that the weapon of
offence scissor has been recovered at the instance of Appellant Mukesh from
an open public place, however the said weapon of offence has been
identified by PW-1 as the one from which injury has been caused to him.
The testimony of PW-1 is corroborated by the medical evidence.
6. The case of the Appellants is that no common intention can be said to
be shared as it was a sudden flow of outrage. In the present case it may be
noted that as many as 8 stab wounds were received by PW-1 on the various
portions of the body i.e. chest, abdomen, sub-costal region, near eye-brow
etc. Thus, the plea that there was no intention to cause any injury which was
likely to cause death is incorrect. Both the Appellants shared the common
intention because even after the first stab wound Appellant Javed continued
holding the PW-1. The common intention can be formed on the spur of the
moment as is evident in the present case. I am not in agreement with the
contention of the learned counsel for the Appellants that since scissor was
used and it being not a deadly weapon no offence under Section 307 IPC is
made out and at best Section 308 IPC is made out. The scissor is a sharp
edged weapon and 8 incised punctured injuries have been caused by the said
weapon to the extent that the air-pressure in the chest of the Petitioner
decreased and he stayed in the ICU for 10 days. PW-1 was declared fit for
statement only after 9 days of the incident. Further, as per the FSL report,
the clothes of PW-1 and the soil contained human blood. In their statement
under Section 313 Cr.P.C. the plea of the Appellants is only false
implication. Further, I find no contradiction in the testimony of two doctors,
as one has opined the injuries to be dangerous in nature and the other
grievous. PW-10 is a forensic expert who after going through the entire
MLC has given the expert opinion that the injuries were grievous in nature.
Nothing material has been elicited from PW-10 in his cross-examination to
show that the injuries caused were not grievous in nature.
7. I find no merit in the appeals. Appeals and applications are dismissed.
The Appellants who are on bail will surrender to custody and undergo the
remaining sentence. Their bail bond and surety bond are cancelled.
(MUKTA GUPTA)
JUDGE
JULY 11, 2012
'ga'
