Vinod Tyagi vs The State
2013 Latest Caselaw 1773 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 20th February, 2013
                                     DECIDED ON : 22nd April, 2013

+      CRL.A. 292/2004
       VINOD TYAGI                                             ..... Appellant
                                Through :   Mr.Harish Parashar, Advocate with
                                            appellant in person.

                                versus

       THE STATE                                            ..... Respondent
                                Through :   Mr.M.N.Dudeja, APP.

AND

       CRL.A. 374/2004

       RAJIV KUMAR                                            ..... Appellant
                                Through :   Mr.Aditya Singh, Advocate.

                                versus

       STATE (GOVT. OF NCT) DELHI              ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Vinod Tyagi (A-1) and Rajiv Kumar (A-2) challenge the

judgment dated 03.03.2004 in Sessions Case No.117/2002 arising out of

FIR No.140/2000 registered at Police Station S.N.Puri by which they were

held guilty for committing offence punishable under Section 307/34 IPC

and sentenced to undergo RI for five years with fine `5,000/- each.

2. Daily Diary (DD) No.30-B (Ex.PW4/1) was recorded at

Police Station S.N.Puri, New Delhi on 25.04.2000 at 03.50 P.M. on

getting information from duty Constable Santosh Kumar at AIIMS that

Constable Narender Kumar had admitted Rahul Sharma in injured

condition from PGDAV college. The investigation was assigned to SI

P.C.Yadav who with Constable Mukesh went to AIIMS. He recorded

victim's statement (Ex.PW-1/1). Rahul Sharma disclosed that on

25.04.2000 when he with his friend Ravinder Kumar was present in the

college to take exams, A-1 with his associates including A-2 reached there

and picked up a quarrel with him. He inflicted injuries with a knife. A-2

and other associates caught hold him. He was stabbed with knife twice on

his back by A-1. When Ravinder intervened to save him, he was also

given beatings. SI P.C.Yadav made endorsement (Ex.PW-10/1) and

lodged First Information Report. During the course of investigation,

statement of witnesses conversant with the facts were recorded. Victim's

MLC and injury report were collected. After completion of investigation,

a charge-sheet was filed against both the accused. They were duly

charged and brought to trial. The prosecution examined ten witnesses to

substantiate the charges. In their 313 statement both the accused pleaded

false implication. On appreciating the evidence and considering the rival

contentions of the parties, the Trial Court, by the impugned judgment

convicted the appellants under Section 307/34 IPC. Being aggrieved, they

have preferred the appeals.

3. Counsel for the appellants urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. Inherent defects

in the prosecution's case and statements of witnesses were ignored

without any valid reasons. Recovery of knife is suspicious and doubtful

and is of no consequence as 'blood' was not detected on it in FSL report.

Presence of PW-3 (Ravinder Kumar) at the spot is highly doubtful. No

independent public witness was associated at any stage of investigation.

Constable Narender who admitted the victim in AIIMS was not examined.

The ocular testimony is in conflict with medical evidence. The

prosecution could not establish appellants' motive to inflict injuries to the

victim. A-2 was not known to the injured prior to the incident and had no

animosity with him. Learned Additional Public Prosecutor urged that

testimony of PW-1 (Rahul), an injured witness, inspires confidence and

there are no reasons to discard his cogent version.

4. The occurrence took place at about 02.15 P.M. at PGDAV

College-Campus, Nehru Nahru Nagar on 25.04.2000. PW-1 (Rahul)

sustained injuries and was taken to AIIMS. MLC (Ex.PW-8/1) was

recorded. The alleged history, records 'assault with knife'. He suffered

two stab wounds on back. The accused have not denied the injuries

sustained by the victim. Their only plea is that the appellants were not the

author of the injuries and he sustained injuries in a quarrel with his other

enemies.

5. Statement of the victim-Rahul Sharma was recorded soon

after the occurrence and thereafter First Information Report was lodged at

05.05 P.M. The complainant gave vivid details of the incident and named

the accused persons to be the perpetrators of the crime. He attributed

specific role to the each accused in causing injuries to him. Since the

rukka was sent without any delay promptly, there was least possibility of

victim Rahul Sharma to fabricate a false story to implicate the accused.

While appearing as PW-1 (Rahul Sharma) he proved the version given to

the police at the first instance without major variations. He identified both

A-1 and A-2 in the court and deposed that A-2 and A-1's other associates

caught hold him and A-1 inflicted knife blows twice on his back. In the

cross-examination, no material discrepancies emerged to discard his

version. A-1 did not deny his presence at the spot at the time of

occurrence. Admittedly, he was not a regular student in the said college at

the relevant time. He did not offer any explanation for his sudden visit to

the college with his associates. The complainant also assigned motive to

cause injuries to him. There were previous quarrels between the

complainant and the accused on contesting of college elections. It has

come on record that A-1 was ex-student in the college. There was

objection as to why he had organized Jam session sponsored by Coca Cola

in 2000 when he was not a regular student of the college. PW-3

(Ravinder Kumar) has corroborated PW-1's version on material aspects.

He also gave detail account in his deposition as to how and under which

circumstances injuries were caused to PW-1 (Rahul Sharma) by A-1 with

knife while A-2 and their other associates caught hold of him. He further

deposed that on his intervention, he was beaten and taken to hospital.

However, he did not sustain any visible injury and for that reason no MLC

was prepared. PW-3's presence in the college is natural and probable as

he had to take exam from 03.00 P.M. to 06.00 P.M. that day in the

college. He elaborated in the cross-examination that he had taken exam at

03.00 P.M. to 06.00 P.M. and for that reason did not accompany the

injured to AIIMS. However, he went to AIIMS after the exam was over.

6. Various discrepancies/ contradictions/ improvements highlighted by the learned counsel are not material to discredit the testimony of an injured witness. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh vs. Naresh and ors. (2011) 4 SCC 324 as under :

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

7. Similarly in another case Abdul Sayed vs. State of Madhya Pradesh (2010) 10 SCC 259, Supreme Court observed that :

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order

to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

8. The ocular testimony of PWs 1 and 3 is in consonance with

medical evidence. PW-2 (Dr.Sanjeev Lalwani)'s opinion that the victim

suffered simple injuries with sharp edged weapon remained unchallenged

in the cross-examination. The prosecution has thus established beyond

doubt that the appellants in furtherance of their common intention

inflicted injuries to the complainant-Rahul Sharma.

9. Regarding conviction under Section 307 IPC, it reveals that

there was no enough material on record to prove it. MLC (Ex.PW8/1) was

prepared and proved by Dr.Sanjay Mandal (PW-8) on 25.04.2000. There

were two stab wounds on the back each measuring 3cms X 1cm. Depth

was not measurable. Nature of injuries suffered by the victim were

opined simple in nature caused by sharp object. Admittedly, the victim

was discharged the same day. The injuries inflicted were not on vital

organ. The relations between the complainant and the victim were hostile

due to participation in college elections. However, at no stage prior to the

occurrence, any threat was extended by the accused to eliminate him. No

attempt to cause physical assault/harm was made earlier. It appears that

on the date of occurrence a quarrel took place between the two which

resulted in the infliction of the injuries on the body of the injured at the

hands of the appellants. A-1's associates were not armed with any

weapon. They also did not inflict any injuries to the complainant or PW-3

(Ravinder Kumar). It is unclear as to with which weapon the injuries

were caused to the complainant. The prosecution failed to establish

beyond doubt that knife (Ex.P-1) was used in causing injuries to the

complainant. It was a rusty knife and had no blood stains on it. In FSL

report blood was not detected on the knife. It was an ordinary knife. The

recovery of knife is also doubtful as no independent public witness was

associated that time. Earlier opinion about the nature of injury was not

collected. The concerned doctor was unable to give opinion on the basis

of MLC (Ex.PW-8/1). Subsequently, the victim was reexamined to

ascertain the nature of injuries and after a long gap, PW-2 (Dr.Sanjeev

Lalwani) described the nature of injures as 'simple'. Admittedly, injuries

were not dangerous to the life of the victim. No repeated blows with

deadly weapon were caused in attempt to commit murder, I am conscious

that to justify conviction under Section 307 I.P.C., it is not essential that

bodily injury capable of causing death should have been inflicted. An

attempt in order to be criminal need not be the penultimate act fore-boding

death. It is sufficient in law if there is present an intent coupled with some

overt act in execution thereof. In the instant case there was no obstruction

for A-1 to inflict knife blows repeatedly to cause dangerous injuries to the

complainant. From these facts and circumstances it is not prudent to hold

that an attempt to murder the victim was made. The prosecution was able

to establish that the appellants in furtherance of their common intention

voluntarily caused simple injuries with sharp object to complainant. The

appellants are liable to be punished under Section 324/34 IPC.

10. Under Section 307 IPC, the appellants were sentenced to

undergo RI for five years with fine of `5,000/- each. Perusal of the file

reveals that the appellants were in custody prior to their release on bail

during trial for some period. They have suffered agony of trial for about

12 years. The occurrence took place when A-1 was a young man and

perhaps a student. He has now joined legal profession. The appellants

are married and have families to take care of them. No useful purpose

will be served to send the appellants A-1 and A-2 to jail after they were

released on bail by orders dated 29.10.2004 and 21.09.2004 respectively

during the pendency of the appeal. The occurrence took place on a trivial

issue between the parties. A-2 was not even armed with any weapon and

was not known to the complainant. Interest of justice would be met if

both the appellants are sentenced for the period already undergone by

them in this case. However, to compensate the victim for the injuries,

fine of `5,000/- is enhanced to `25,000/- which shall be deposited by A-1

only with the Trial Court within 15 days. Out of total fine of `30,000/- ,

`25,000/- shall be released to the complainant as compensation as per

rules/procedure. .

11. The appeals stand disposed of in the above terms. Bail bond

and surety bond stand discharged.

12. Trial Court record be sent back forthwith.

S.P.GARG, J.

22nd April, 2013 sa