Kamal @ Bunty vs State
2012 Latest Caselaw 5273 Del

$~11
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 527/2012 and Crl. M.B. No 872/2012

%                               Decided on: 4th September, 2012

       KAMAL @ BUNTY                               ..... Appellant
                   Through           :Major Siya Ram, Adv.

                  versus

       STATE                                    ..... Respondent
                           Through   : Mr. Mukesh Gupta, APP

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (Oral)

1. This appeal is directed against the judgment dated 15 th

December, 2011 and order on sentence dated 22nd December, 2011

passed by the trial court whereby appellant has been convicted

under Section 308 IPC as well as under Sections 25 and 27 of

Arms Act, 1959; sentenced to undergo rigorous imprisonment for

five years with fine of `1,000/- (Rupees One Thousand Only) and

in default of payment of fine to undergo simple imprisonment for

one week under Section 308 IPC; rigorous imprisonment for three

years with fine `1,000/- (Rupees One Thousand Only) and in

default of payment of fine to undergo simple imprisonment for one

week under Sections 25 and 27 of Arms Act, 1959. Both the

sentences have been directed to run concurrently. Benefit of

Section 428 of the Code of Criminal Procedure, 1973 has also been

accorded to appellant.

2. Briefly stated, prosecution story as unfolded, is that on 21st

July, 2008 at about 9:30 PM Ravinder Singh, Balwant Singh and

Raju Das were standing near their buses parked near MCD Primary

School, Police Post Khyala. They were settling their daily

accounts. In the meanwhile, a black colour Pulsar motorcycle

bearing registration no. DL4S-AK-1338 driven by juvenile accused

Vinni hit Ravinder. Appellant was sitting on the pillion seat of the

motorcycle. A verbal altercation took place between Ravinder and

Vinni. Ravinder slapped Vinni. At this, appellant got down from

the motorcycle, took out a knife from the pocket of his pant and

stabbed Ravinder on his right side of chest. Thereafter, the

appellant and Vinni started running. Tarvinder Singh with the

help of Balwant Singh and other public persons, who were present

there apprehended appellant, whilst Vinni succeeded in escaping.

3. On receiving information about the incident, PCR arrived at

the spot and removed Ravinder to DDU hospital. Investigating

Officer also reached the spot and arrested appellant and seized the

blood stained knife after preparing its sketch. Knife was sealed in a

pullanda with the seal of VS. Investigating Officer reached DDU

Hospital but could not record the statement of Ravinder as he was

declared "unfit for making a statement". FIR under Sections

307/34 read with Sections 25 of the Arms Act was registered in the

Police Station Tilak Nagar, on the statement of Tarvinder Singh

recorded by Investigating Officer. Motor cycle bearing

registration No. DL-4S-AK-1338 was seized from the spot. Later

on, it was revealed that number plate of motor cycle was a forged

one and the original registration number of same was

DL-SA-K3736. Blood was lifted from the spot with the help of

cotton and was sealed. Pant and underwear of Ravinder, which

were sealed in a pullanda by the doctor with the seal of CMO,

DDU hospital, were taken in possession by the Investigating

Officer. Case properties were deposited in the malkhana and later

sent to Forensic Science Laboratory (FSL).

4. Report of FSL dated 9th January, 2009 was obtained. Blood

of human origin was found on the pant and underwear of Ravinder

as also on the knife. Doctor opined the injuries of Ravinder as

„dangerous‟.

5. Appellant was also medically examined in DDU hospital

since he had also sustained injuries, which were mostly in the

nature of abrasions. Appellant had disclosed to the doctor that he

was beaten by the public and this fact is mentioned in the MLC.

6. Injured Ravinder has been examined as PW2. Complainant

Tarvinder Singh, who also happens to be an eye witness to the

incident, has been examined as PW1. Other two eye witnesses

Raju and Balwant Singh have been examined as PW7 and PW12,

respectively. Trial court has found their statements as trustworthy

and reliable, inasmuch as sufficient enough to conclude that it is

the appellant, who had stabbed Ravinder on his chest by a

buttondar knife. I have also carefully perused their statements and

find the aforesaid witnesses to be trustworthy and reliable. PW2

has deposed that on 31st July, 2008 at about 9/9:30 PM he along

with Tarvinder Singh, Balwant Singh and Raju Dass was standing

near the MCD school when a motorcycle came from the side of

Chand Nagar, driven by Vinni and hit Ravinder. Appellant was

sitting on the rear seat of the motorcycle. He slapped the driver of

motorcycle. In the meanwhile, appellant took out a knife from his

pant‟s pocket and stabbed him on the right side of his chest just

below the nipple. PCR came there and removed him to DDU

hospital. Number of motorcycle was 1338. This version of PW2

has remained unshattered, in his cross-examination. PW1

Tarvinder Singh, PW7 Raju and PW12 Balwant Singh have fully

corroborated this version of PW2. Their testimonies have also

remained unshattered in their cross-examination on this point.

From their statements, in my view, prosecution has succeeded in

proving beyond the shadow of reasonable doubt that the appellant

had stabbed PW2 Ravinder on the right side of his chest by a knife,

resulting in injury to him. PW3 Dr. Rajeev Tyagi has proved

MLC of PW2 as Ex. PW3/A. Testimony of PW3 has remained

unchallenged as he was not cross-examined by the appellant‟s

counsel. As per the MLC, PW2 had suffered CIW measuring 1

cm X 2 cm over anterior aspect of chest wall on the right side in

the incident. Nature of injuries have been opined as "dangerous".

MLC Ex. PW3/A corroborates the statements of victim PW2 and

eye-witnesses (PW1, PW7 and PW12). It supports the version of

victim and eye witnesses that it is the appellant who had stabbed

Ravinder on his chest by a knife.

7. PW12 Balwant Singh has categorically deposed that after

stabbing PW2, appellant tried to run away from the spot but public

persons present there apprehended him along with the knife.

Later on, appellant was handed over to police officer along with

knife, which was sealed and seized after its sketch was prepared.

He has identified his signatures on the sketch of knife Ex. PW1/D

and also on the seizure memo PW1/E. PW1 Tarvinder Singh is

also a witness to recovery of knife. PW1 has also deposed that the

appellant was arrested and knife was recovered from him. PW1

has also identified his signatures on Ex. PW1/D and PW1/E. PW1

has further deposed that the knife was kept in a pullanda, sealed

with the seal of VS and taken in possession. Investigating Officer

and HC Purshottam have also corroborated the recovery and

seizure of knife vide Ex. PW1/D and PW1/E. Appellant was

apprehended at the spot and blood stained knife was recovered and

seized. FSL report clearly indicates that blood of human origin

was found on the weapon of offence, that is, knife. Recovery of

blood stained knife also corroborates the prosecution version. In

view of the above referred clinching evidence on record, in my

view, Trial Court has rightly concluded that it is the appellant who

had stabbed Ravinder Singh on his chest causing dangerous

injuries to him. Thus, I do not find the view taken by trial court to

be inconsistent with the evidence led by the prosecution.

8. As regard to injuries on the person of appellant are

concerned, Trial Court has observed that the same might have been

suffered by him in the hands of public, I do not find this view to be

erroneous or inconsistent with the evidence adduced on record.

Injuries on the person of appellant, majority of which are in the

shape of abrasions appears to be result of appellant having been

apprehended at the spot by the public persons immediately after he

had stabbed the victim. Injuries on the person of appellant have

been duly explained and will not be sufficient enough to discard

the statements of victim and the eye witnesses.

9. Section 308 IPC envisages that whoever does any act with

such intention or knowledge and under such circumstances that, if

he by that act caused death he would be guilty of culpable

homicide not amounting to murder, shall be guilty of committing

the offence under the said provision. In this case, a quarrel ensued

after the motorcycle driven by Vinni had hit Ravinder. Initially, a

verbal altercation took place between the injured and Vinni which

lead to scuffle and only thereafter appellant stabbed the injured.

The events as unfolded from the evidence on record clearly

indicate that the assault was not pre-meditated. At the spur of

moment appellant appears to have stabbed the injured. However,

the circumstances under which injury has been caused, the kind of

weapon used and the vital part of the body where injury has been

caused certainly discloses knowledge on the part of appellant that

his act of stabbing would have resulted death of Ravinder, even

though he may not have had intention to commit his murder, thus,

appellant has been rightly held guilty by the Trial Court for the

offence punishable under Section 308 IPC. Accordingly,

conviction of appellant under Section 308 IPC is upheld.

10. Knife Ex.P-1 has been used by the appellant and was seized

at the spot itself. Witnesses have identified this knife as the same

which was used by the appellant. Sketch of knife Ex.PW1/D

clearly shows that its total length was 24 cm with blade of 11 cm

and handle of 13 cm. The Gazette Notification dated 17th February,

1979 bearing No. F.13/203/78-Home (C) prohibits possession of a

knife open or close, with any of the mechanical device, with a

blade of 7.62 or more in length and 1.72 cms. or more in breadth.

The knife used by appellant, in the commission of crime, is beyond

the prescribed notified limits, thus, Trial Court has rightly

convicted the appellant for the offences punishable under Sections

25 and 27 of Arms Act, 1959. Conviction of appellant under the

said provisions is also upheld.

11. As regards to sentences handed down to appellant by Trial

Court same requires no interference, not only keeping in mind the

gravity of offence involved in this case but also for the reason that

the appellant is involved in as many as 12 other cases, details

whereof have been mentioned in the order of sentence.

12. For the foregoing reasons, appeal is dismissed.

Miscellaneous application is disposed of as infructuous.

A.K. PATHAK, J.

SEPTEMBER 05, 2012 rb