Delhi High Court

Nihal Singh vs State Of Delhi on 8 August, 2013

Author: Sunita Gupta

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision: 08.08.2013

+      CRL.A. 262/2003
       CHUNI LAL                                    ..... Appellant
                            Through:   Mr. Chander Mohan Sharma,
                                       Advocate.

                            versus

       STATE OF DELHI                               ..... Respondent
                    Through:           Ms. Fizani Husain, APP for the
                                       State.

+      CRL.A. 304/2003
       NIHAL SINGH                                  ..... Appellant
                            Through:   Mr. Chander Mohan Sharma,
                                       Advocate.

                            versus

       STATE OF DELHI                               ..... Respondent
                    Through:           Ms. Fizani Husain, APP for the
                                       State.


CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 8th April,

2003 in Sessions Case 116/2001 arising out of case FIR No. 302/96

under Section 307/34 IPC, PS Anand Parbat vide which the

appellants were convicted for offence under Section 307/34 IPC and

order on sentence dated 10th April, 2003, whereby both the convicts

were sentenced to undergo rigorous imprisonment for three years and

were also sentenced to pay a fine of Rs.1,000/- each, in default of

payment of fine to undergo simple imprisonment for one month.

2. Prosecution case emanates from the fact that on receipt of DD

No.49B dated 7th October, 1996, Ex.PW3/C, SI Amleshwar Rai

(PW9) along with Ct. Dharambir Singh (PW7) and Ct. Vijender

Singh (PW4) reached the spot, i.e., public lane near House No.353/2,

Gali No. 1, Than Singh Nagar, where it was revealed that injured had

been taken to Jeewan Hospital. After leaving Constable Vijender at

spot, SI Amleshwar left for Jeewan Hospital along with Constable

Dharambir where he collected MLC of injured Kulbhushan @

Kundan who was declared unfit for statement. Nirpaksh Dass,

brother of the injured was available who gave a statement Ex.PW-8/A

alleging, inter alia, that on 7th October, 1996 at about 11.00 p.m. he

was present at his house. On hearing some noise in the street, he

came out and saw accused Chuni Lal and Nihal Singh @ Kali

attacking his younger brother Kulbhushan @ Kundan with sword and

knife. Both the accused gave several blows with sword and knife on

the person of his brother as a result of which he fell down. He rushed

to the spot to rescue his brother and called remaining members of the

family. Both the accused ran away from the spot. He was informed

by his brother that when he asked accused persons not to abuse, they

became infuriated and attacked him with sword and knife.

Kulbhushan became unconscious. He was immediately taken to

Jeewan Hospital, New Rohtak Road, Delhi. The occurrence was

witnessed by other persons of the locality. The accused persons

attempted to kill his brother. On the basis of this statement and the

MLC the Investigating Officer recommended registration of the case

for the offence under Section 307/34 IPC and 27 of the Arms Act.

Accordingly, FIR Ex. PW-3/B was registered. Blood stained clothes

of the injured were taken into possession vide memo Ex. PW-7/A.

Site Plan Ex. PW-9/A was prepared. Accused Chuni Lal was arrested

on 11th October, 1996. He made a disclosure statement Ex. PW-8/C.

He was arrested and his personal search was taken vide memo Ex.

PW-9/B. Accused Hukmo Devi and Bhupinder @ Poppe were

formally arrested as they were on anticipatory bail. Accused Nihal

Singh could not be arrested. He was declared proclaimed offender.

Although, he moved an application for surrender but he did not

surrender in the Court. Charge sheet was submitted for offence under

Section 307/34 IPC and 27 of the Arms Act and appellant Nihal

Singh was shown in column No .2. The case was committed to the

Court of Sessions as offence under Section 307 of the IPC was

exclusively triable by the Court of Sessions. During the pendency of

trial, Nihal Singh was also arrested.

3. Charge for offence under Section 307/34 IPC was framed

against all the accused persons to which they pleaded not guilty and

claimed trial. In order to substantiate its case, prosecution examined

ten witnesses. All the incriminating evidence was put to accused

persons while recording their statements under Section 313 Cr. P.C.

wherein they denied the prosecution allegation and alleged false

implication in this case. They denied any such incident having taken

place. It was alleged that Kulbhushan was not of good character and

he used to bring girls and people suspected him to be of bad character

dealing in such bad business and when they objected, Kulbhushan got

them implicated in this case. However, they did not prefer to lead

any evidence.

4. By impugned order dated 8th April, 2003, learned Additional

Sessions Judge acquitted accused Hukmo Devi and Bhupinder @

Poppe on the ground that prosecution was not able to prove its case

beyond shadow of doubt qua them, however, as regards accused

Chuni Lal and Nihal Singh, the prosecution succeeded in proving

their guilt. As such, they were convicted under Section 307/34 IPC

and sentenced as stated above. Feeling aggrieved by this order, the

present appeals have been preferred. No cross appeal has been filed

by the State against the acquittal of Hukmo Devi and Poppe.

5. I have heard Sh. Chander Mohan Sharma, Advocate for the

appellant and Ms. Fizani Hussain, learned Additional Public

Prosecutor for the State and have perused the record.

6. It was submitted by learned counsel for the appellant that there

is a material improvements in the statement of injured and other

witnesses inasmuch as, as per the initial complaint only two persons

were involved in the incident. However, during their deposition, they

implicated four persons. Moreover, character of injured himself is

not aboveboard, inasmuch as, he was involved in a theft case.

Moreover, although, the accused persons were known to him from

before but when he was taken to hospital, he did not give their names

to the Doctor or to the police. As regards PW1, Sanjay is concerned,

he again is involved in criminal cases. Moreover, he was on friendly

terms with the injured. That being so, no reliance can be placed on

his testimony. Furthermore, according to Investigating Officer of the

case, blood was lying on the spot. However, the same was not seized.

Although, the clothes of the injured were seized but same were not

sent to FSL for scientific investigation. As per the prosecution

witnesses, the incident was witnessed by other persons of the locality

but no independent person was examined by the prosecution.

Although it was not disputed that there was a fight but it was

submitted that there was no intention to kill the injured. Moreover,

the doctor has not given depth of injuries. The doctor nowhere says

that any operation was conducted for the injuries sustained by

Kulbhushan. As such, at best, the offence under Section 324 IPC is

made out.

7. Per contra, it was submitted by learned Public Prosecutor for

the State that there is no reason to disbelieve the testimony of the

injured which finds due corroboration from his own brother Nirpaksh

Dass and Sanjay. There is no enmity between the accused persons

and these witnesses for which reason they will falsely implicate them

in this case. As regards, non-seizure of the blood lying at the spot and

not sending the blood stained clothes to FSL, it was submitted that at

best, it is a lapse on the part of the Investigating Officer but for that

reason, prosecution case does not suffer from any infirmity. It was

submitted that the appellants were rightly convicted under Section

307 IPC inasmuch as successive assault were caused on vital part of

the body, the injured had to remain hospitalized for three days. As

such, the impugned order does not suffer from any infirmity which

calls for interference. As such, the appeals are liable to be dismissed.

8. I have given my thoughtful consideration to the respective

submissions of learned counsel for the parties and have perused the

record.

9. PW-2, Kulbhushan @ Kundan is the injured. It has come in his

testimony that on 7th October, 1996, at about 10:00 p.m. he was eating

eggs besides the egg rehri near Bikaner Sweet Corner. At that time

Kali and Chuni Lal were tightening the screws of TSR. He was

sitting on the stool. Both the accused started passing comments on

him to which he objected. Thereupon, they caught hold of him due to

which he fell down from the stool and Chuni slapped him. He came

to Gali No.1. At about 10.45 to 11.00 pm as he was opening the lock

of his scooter in front of House No. 353/2, accused Nihal @ Kali,

Chuni and Poppe came. Kali was having a sword with him while

Poppe was having a knife. Chuni Lal was not having anything. Kali

stabbed with sword on his head thrice and also stabbed on his face.

Poppe stabbed with knife on left side waist portion. In the meantime,

mother of accused Kali, namely Hukmo Devi came at the spot and

asked all the accused persons to kill him. Thereafter, Hukmo Devi left

along with Poppe. Poppe handed over the knife to Chuni Lal then

Chuni Lal stabbed on left side hips, legs and waist portion. He

continued to raise alarm. On hearing the noise, his brother Nirpaksh

Dass reached the spot and Chuni Lal and Kali ran away from the spot.

His clothes were soaked in blood and they were also having sword

cuts, which he identified as Ex. P-1 to P-3 which were seized by the

police. He was removed to Jeewan hospital. Police came to hospital

where his statement was recorded.

10. In cross-examination, he denied the suggestion that he used to

bring girls of bad character in the area to which Hukmo Devi had

objected and due to this reason he was nursing grudge against the

accused persons. He went on stating that the street of Hukmo Devi is

very narrow and no car can enter that portion of the gali where her

house is situated. He also denied the suggestion that he is an accused

in FIR No. 350/85 under Section 307, PS DBG Road. He went on

stating that he was never arrested by the police in any case except a

false case of theft which was got registered by Hukmo Devi on 4th

November, 1996 after registration of this case.

11. It is settled law that testimony of an injured witness stands on a

higher pedestal than any other witness, inasmuch as, he sustain

injuries in the incident. As such, there is an inbuilt assurance

regarding his presence at the scene of the crime and it is unlikely that

he will allow the real culprit to go scot free and would falsely

implicate any other persons. In Abdul Sayeed v. State of Madhya

Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:

"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." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated

the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go

unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

12. To the similar effect is the judgment reported in Mano Dutt

and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226.

13. PW-2 Kulbhshan had given a graphic description of the entire

incident. His presence at the spot cannot be doubted as he was

injured in the incident. Despite lengthy cross-examination, nothing

material could be elicited to discredit his testimony. The defence

taken by the accused that he used to bring girls of bad character in the

area which was objected to by Hukmo Devi, has been categorically

denied by the witness. No other person of the area has been

examined by the accused to substantiate this plea. In order to

impeach his character, a suggestion was given that he is facing trial in

FIR No. 350/85 under Section 307, PS DBG Road which was also

denied by him. The accused have not placed on record the certified

copy of the FIR in order to prove that the witness was an accused in

that case. As regards the involvement of the witness in a theft case, it

has come in his deposition that after the registration of this FIR

against the accused persons, Hukmo Devi got registered a case FIR

No. 339/96 against him on 4th November, 1996 about the theft in her

house. The witness has gone on stating that Hukmo Devi threatened

to involve him in a false case that if he does not withdraw this case in

which he sustained injuries and on his failure to do so, he was falsely

implicated in that case. FIR No. 339/96 is not the subject matter of

this case and in any event, the FIR in that case was registered after the

registration of this case. As such, same has no bearing on this case.

No personal enmity, ill will or grudge has been alleged by any of the

accused for which reason the witness will falsely implicate them in

this case. In fact during the course of argument, learned counsel for

the appellant did not dispute that such an incident did take place in

which the witness had sustained injuries. That being so, there was no

reason for the witness to falsely implicate the accused person.

14. As regards the submission of learned counsel for the appellant

that at the first available opportunity, names of the accused persons

were not disclosed to the doctor and, therefore, possibility of falsely

roping the appellant cannot be ruled out, same is without any

substance. It has come in the statement of PW-9 SI Amleshwar Rai

that on receipt of DD No. 49B when he reached the spot, he came to

know that injured has been removed to the hospital. As such, he

reached the hospital where he collected MLC of injured Kulbhushan.

However, Kulbhushan was declared unfit for statement by doctor and

was in operation theatre. Brother of the injured Nirpaksh Dass was

present and his statement Ex.PW8/A was recorded wherein he has

given the names of Nihal Singh and Chuni Lal who inflicted injuries

on the person of his brother Kulbhushan with knife and sword.

Nirpaksh Dass while appearing as PW-8 has fully substantiated the

version given before the police on which the police machinery was

set in motion. Perusal of his statement reveals that this witness had

come to the spot only after hearing the noise of quarrel from the gali

and when he reached the spot he saw accused Chuni and Nihal

inflicting injuries on his person. As seen above, it has come in the

testimony of Kulbhushan that initially Chuni Lal, Nihal @ Kali and

Poppe had given the injuries which were inflicted upon him by Kali

with sword and Poppe with knife. Thereafter, mother of the accused

Kali, namely, Hukmo Devi came and exhorted the remaining accused

to kill Kulbuhshan and then left the spot with Poppe. Therefore,

when Nirpaksh Dass reached the spot, he noticed only Chuni Lal and

Kali inflicting injuries on the person of Kulbhushan. Since the

injured himself was unfit for statement and was in operation theatre,

there was no occasion for him to give the name of the assailants

before the doctor. Moreover, a perusal of medical report, Ex. PW5/A

prepared by Dr. K.B. Raj (PW-5) of Jeewan Hospital reveals that it

was a private hospital and in fact the report is not even on prescribed

performa as is normally done in the Govt. Hospital. That being so,

neither there is any noting as to who brought the injured to hospital

and what was the history. That being so, if the names of the

assailants are missing in the report, no adverse inference can be

drawn against the prosecution. In fact, when police reached the

hospital, Nirpaksh Dass gave his statement naming the appellants.

15. PW-1 Sanjay is another eye-witness of the incident who has

testified that injured Kulbhushan is his friend. On the fateful day,

after taking dinner, he was going to meet his friend Kulbhushan at his

house. He found accused Kali, Chuni and Poppe quarrelling with

Kulbhushan in front of house No. 353. Kali was having sword while

Poppe was having knife. Both Kali and Poppe were threatening

Kulbhushan with sword and knife. In the meantime, mother of Kali

reached the spot and exhorted the other accused persons to kill

Kulbhushan. Accused Poppe handed over the knife to accused Chuni

and then Chuni stabbed Kulbhushan with knife. After seeing the

incident, he returned back to his home due to fear. Police met him in

the hospital when he had gone to see Kulbhushan and then his

statement was recorded. This witness was also subjected to cross-

examination, however, nothing material could be elicited to discredit

the testimony. The mere fact that he is on friendly relation with

Kulbhushan is not sufficient to disbelieve his testimony. The

character of this witness was also tried to be impeached on the ground

that he was involved in a case under Section 324 IPC of PS Anand

Parbat, bearing FIR No. 231/92. The witness denied the suggestion

that this case was registered when he hit somebody with a knife. He

went on stating that it was a case with his cousin brother which was

later on compromised. He, however, admitted that he was involved in

a case under Section 27 of the Arms Act, PS Anand Parbat. Even if

that is so, that itself is not sufficient to discard his testimony,

moreover, he is not the solitary witness. As stated above, the injured

himself has proved the case of prosecution. His testimony is cogent,

coherent and reliable and conviction of the appellant could have been

based upon his solitary testimony but in the instant case his testimony

finds substantial corroboration from PW-8 Nirpaksh Dass as well as

PW-1 Sanjay. Furthermore, the same also finds corroboration from

the medical evidence which reveals that on 7th October, 1996, injured

Kulbhushan was brought to Jeewan Hospital where he was examined

by Dr. K.B. Raj, PW-5, who found the injuries on his person and gave

report Ex. PW-5/A. According to him, the nature of injuries was

sharp in nature and caused by sharp object. The injuries were possible

by stabbing by knife and sword. As such, the ocular testimony of the

witnesses found due corroboration from the medical evidence.

16. As regards the other limb of argument that no independent

person of the locality has been examined, it has come on record that

some neighbours were watching the incident. Injured Kulbhushan

has even named the persons who were watching the incident. Ram

Kumar, landlord of house No. 353/2 and one Billo residing just

opposite the house of Ram Kumar were those neighbours who were

watching the incident. However, none came forward to save the

injured. It is common experience that there is general apathy on the

part of the public persons to come to the rescue of the injured or to

participate in police proceedings. While Ram Kumar and Billo were

mute spectators to the incident even Sanjay, who was on friendly

terms with the injured got scared on seeing the incident and became

frightened and rushed to his house. It was only next day that he went

to the hospital and then his statement was recorded by the Police.

Under these circumstances, even if there is no independent witness

that is hardly of any significance. Substantially, similar plea was

taken in Appabhai and Anr. Vs. State of Gujarat, AIR 1998 SC 696,

where it was held as under:-

"10. ......It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."

17. It has come on record that the clothes of the injured were

stained with blood and the same were taken into possession by the

Investigating Officer of the case vide memo Ex.PW-7/A. Although,

IO of the case admitted that blood was lying at the spot, however, for

reasons best known to him, he did not lift the same from the spot and

therefore, neither the blood stained clothes nor the blood available on

the spot was sent to FSL for opinion. It is, however, a lapse on the

part of the Investigating Officer which does not caste any dent on the

prosecution case. There are catena of decisions to the effect that

defects in investigation by itself cannot be a ground for acquittal. In

Ram Bihari Yadav Vs. State of Bihar, AIR 1998 SC 1850, it was

held by Hon'ble Supreme Court that if primacy is given to the

omissions or lapses by perfunctory investigation by the investigating

agency, the faith and confidence of people would be shaken not only

in law enforcing agency, but also in the administration of justice. It is

true if on account of any lapse doubts are created in prosecution case,

the accused would be entitled to the benefit of that doubt. But, if the

prosecution is able to establish its case beyond reasonable doubt

against the accused, in spite of lapses, the accused cannot be acquitted

because of the lapse on the part of investigating officer. Substantially

similar view was taken in C. Muniappan and others vs. State of Tamilnadu,

2010 IX AD (SC) 317, where it was held that there has been negligence on

the part of investigating agency or omissions etc which resulted in

defective investigation, there is a legal obligation on the part of the

Court to examine the prosecution evidence de hors such lapses

carefully to find out whether said evidence is reliable or not or to

what extent it is reliable and as to whether such lapses affected the

object of finding out the truth. Therefore, the investigation is not the

solitary area for judicial scrutiny in a criminal trial. The conclusion of

trial in the case cannot be allowed to depend solely on the probity of

investigation.

18. As regards the submission that the weapon of offence has not

been recovered, record reveals that accused Chuni Lal was arrested

on 11th May 1996 and as per his disclosure statement, he had thrown

away the weapon of offence in a running tempo. Nihal Singh was

evading arrest and, as such, was declared proclaimed offender. He

could be arrested only on 3rd November, 1997. As such, after a lapse

of such considerable period, there was hardly any possibility of

recovery of weapon of offence at his instance. Moreover, mere non-

recovery of weapon of offence is not a factor from which the

appellants can get any benefit. In Mohinder Vs. State, 2010 VII AD

(Delhi) 645, it was held that non-recovery of weapon of offence

during investigation is not such an important factor to neutralise the

direct evidence of complicity of accused in the murder of deceased.

19. It is next required to be seen whether the offence under Section

307 IPC is made out or not, inasmuch as, it is the submission of

learned counsel for the appellant that there is no intention on the part

of the appellants to kill. Moreover, depth of injuries has not been

given by the doctor. There is nothing in the testimony of doctor that

the injuries were sufficient in ordinary course of nature to cause

death. As such, at the most, offence under Section 324 IPC is made

out.

20. Section 307 relates to attempt to murder. It reads as follows:

"307. Attempt of murder. - 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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned."

21. In State of Madhya Pradesh Vs. Kedar Yadav, (2009) 17 SCC

280, it was held that to justify a conviction under this Section, it is not

essential that bodily injury capable of causing death should have been

inflicted. Although the nature of injury actually caused may often

give considerable assistance in coming to a finding as to the intention

of the accused, such intention may also be deduced from other

circumstances, and may even, in some cases, be ascertained without

any reference at all to actual wounds. The Section makes a distinction

between an act of the accused and its result, if any. Such an act may

not be attended by any result so far as the person assaulted is

concerned, but still there may be cases in which the culprit would be

liable under this Section. It is not necessary that the injury actually

caused to the victim of the assault should be sufficient under ordinary

circumstances to cause the death of the person assaulted. What the

Court has to see is whether the act, irrespective of its result, was done

with the intention or knowledge and under circumstances mentioned

in the Section. An attempt in order to be criminal need not be the

penultimate act. It is sufficient in law, if there is present an intent

coupled with some overt act in execution thereof.

22. It is sufficient to justify a conviction under Section 307 if there

is present an intent coupled with some overt act in execution thereof.

It is not essential that bodily injury capable of causing death should

have been inflicted. The Section makes a distinction between the act

of the accused and its result, if any. The Court has to see whether the

act, irrespective of its result, was done with the intention or

knowledge and under circumstances mentioned in the Section.

Therefore, an accused charged under Section 307 IPC cannot be

acquitted merely because the injuries inflicted on the victim were in

the nature of a simple hurt.

23. This position was highlighted in State of M.P. v. Saleem @

Chaman and Anr, (2005) 5 SCC 554. In Sarju Prasad v. State of

Bihar, AIR 1965 SC 843, it was observed that mere fact that the

injury actually inflicted by the accused did not cut any vital organ of

the victim, is not by itself sufficient to take the act out of the purview

of Section 307.

24. Whether there was intention to kill or knowledge that death

will be caused is a question of fact and would depend on the facts of a

given case. The circumstances that the injury inflicted by the accused

was simple or minor will not by itself rule out application of Section

307 IPC. The determinative question is intention or knowledge, as the

case may be, and not nature of the injury.

25. It has come on record that accused Kali and Chuni abused the

injured which was objected by him, thereupon they caught hold of

him, as a result of which he fell down and Chuni Lal slapped him.

Thereafter, both these accused along with Poppe armed with sword

and knife came and stabbed on the head of injured three times and

also on his face. Poppe also stabbed with knife on left side waist

portion. Thereafter, Hukmo Devi, mother of accused Kali came and

exhorted all the three accused persons to kill Kulbhushan. Thereafter,

although Hukmo Devi left with Poppe but while leaving, Poppe

handed over knife to Chuni Lal and then Chuni Lal gave stab blows

on the hips, legs and waist portion of the injured. It was only after

Nirpaksh Dass, brother of the injured reached the spot, that they ran

away from the spot. The injured was removed to Jeewan Hospital by

his brother Nirpaksh Dass and his medical report Ex. PW5/A was

prepared by Dr. K.B. Raj, who found following injuries on his

person:-

Multiple stab lacerated wound over:-

-Right side Forehead 3" long

-Left side scalp- 6" long upto parietal area

-Deep cut injury over chin 3" long upto bone.

-Deep cut over 10th rib area left side 1" long

-Deep cut back right side 1" two in number

-Deep cut 1" to 2" over left gluteal area- 3 in number

-Deep cut over left thigh lateral side 2" long

-Cut injury deep over right and left leg shin area-1" long -5 to 6 in number.

-Cut injury with Nail avulsion of left hand 3rd ray.

Nature of injuries was opined by the doctor as sharp in

nature and caused by sharp objects and these injuries are

possible by stabbing by knife and sword.

26. It is also a matter of record that when the Investigating Officer

of the case reached the hospital, the injured was in operation theatre.

He was discharged only on 9th October, 1996. Under the

circumstances, the mere fact that the doctor has not opined that the

injuries sustained by Kulbhushan were sufficient in ordinary course

of nature to cause death is not sufficient to take out the case from the

ambit of Section 307 IPC, inasmuch as, as discussed above, the nature

of injuries simplicitor is not sufficient to rule out application of

Section 307 IPC. The determinative question is the intention or the

knowledge and not the nature of injuries. The nature of injuries

sustained which were also on vital part of the body, the weapon used

are sufficient to attract the provisions of Section 307 IPC. As such,