Rakesh @ Dhillo vs State Of The Nct Of Delhi
2013 Latest Caselaw 180 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CRL.A. 1309/2011

%                                            Decided on: 11th January, 2013

       RAVI KUMAR                                           ..... Appellant
                                Through   Ms. Nandita Rao, Adv.
                       versus
       STATE                                                ..... Respondent

Through Mr. Mukesh Gupta, APP with SI Rajiv PS Najafgarh Colony.

+      CRL.A. 1333/2011
       RAKESH @ DHILLO                                     ..... Appellant
                                Through   Ms. Anita Abraham, Adv.
                       versus
       STATE OF THE NCT OF DELHI                           ..... Respondent
                                Through   Mr. Mukesh Gupta, APP with SI
                                          Rajiv PS Najafgarh Colony.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MS. MUKTA GUPTA, J (ORAL)

1. These appeals can be disposed of together as they challenge the

common judgment dated 29th April, 2011 passed by the learned Additional

Sessions Judge convicting the Appellants herein for offence under Section

307/34 IPC and Appellant Rakesh Kumar @ Dhillo for offence under

Section 25 Arms Act as well. Vide the impugned order dated 30 th April,

2011 both the Appellants have been sentenced to undergo rigorous

imprisonment for a period of 7 years and a fine of Rs 5000/- in default of

payment of fine to undergo further simple imprisonment for six months for

offence under Section 307/34 IPC. The Appellant Rakesh @ Dhillo has

been further sentenced to the rigorous imprisonment for two years for

offence under Section 25 Arms Act and to pay a fine of Rs. 500/- and in

default of payment of fine to undergo simple imprisonment for one month.

2. Learned counsel for the Appellants contend that the conviction under

Section 307/34 IPC cannot be sustained on the short ground that the

prosecution has not proved the MLC before the learned Trial Court. Further

the case of the prosecution is that the Appellants took the auto-rikshaw and

got down at Kilokri and as they did not pay the fare, the injured fought with

them, when the Appellant Rakesh caught hold of him and Appellant Ravi

stabbed. Thereafter PW5 the complainant went to Police post Sunlight and

then to AIIMS. Thus, the injuries cannot be said to be serious/ grievous in

nature. Further, no blood was recovered from auto-rikshaw nor were the

clothes of the injured seized. There is no evidence on record to prove that

the injuries could have resulted in the death of PW5. The arrest of the

Appellants is also shrouded in mystery. According to the investigating

officer search of the Appellants was made on private vehicle. The

Appellants were arrested after two months of the alleged incident. No article

was recovered at the instance of Appellant Ravi Kumar though his house

was fully searched. In the cross-examination the investigating officer failed

to give the description of the house, the timings when he made the search

etc. Thus, the Appellants be acquitted of the charges framed and in any case

even if the testimony of PW5 is to be believed, at best a case for conviction

under Section 324/34 IPC is made out and the sentence of the Appellants be

reduced to the period already undergone.

3. Learned APP on the other hand contends that though the MLC has not

been exhibited inadvertently before the learned Trial Court, however PW5

has stated about the injuries received. Further PW1 Dr. Sushil Sharma has

opined that the injuries mentioned on the MLC of PW5 were possible by the

knife recovered from Appellant Rakesh @ Dhillo. Thus, the testimony of

PW5 stands corroborated sufficiently. There is no contradiction in the

testimony of the investigating officer and he has stated about all material

facts which transpired during investigation. Since no blood stains were

visible on the blade of the knife when it is recovered, the same was not sent

to FSL. The Appellants have not been falsely implicated and have been duly

identified by the complainant. Appellant Ravi refused TIP and Appellant

Rakesh Kumar was duly identified by PW5 in the TIP proceedings. Further

PW5 had correctly identified both the Appellants before the Trial Court

which is the substantive identification.

4. I have heard learned counsel for the parties. Case of the prosecution is

based on the statement of PW5 Naveen Kumar who stated that he used to

drive TSR No. DL1RF-0625. On 29th January, 2009 at about 11.30 PM he

was present in his TSR near Super Shine Chowk, Vinod Nagar East when

two passenger came and asked him to go to Ashram. When PW5 reached

Ashram with the passengers, they asked him to take them to Kilokri village.

PW5 took them to Kilokri village and demanded night-charges, when both

the passengers started quarelling with him. Thereafter one passenger i.e.

Appellant Rakesh caught hold of him and the other passenger i.e. Ravi gave

knife injury on his chest and abdomen. After the incident PW5 took his TSR

to Police post Sunlight colony and narrated the incident to the Police officers

and two Police officers took him to trauma centre, AIIMS for medical

examination. PW5 identified Appellant Rakesh in TIP proceedings in Tihar

jail. This witness was extensively cross-examined, however nothing

material could be elicited in the cross-examination. Appellant Rakesh joined

the TIP and the PW5 correctly identified him both in the TIP and during the

examination before the Court. Though in the statement of Ravi Kumar

under Section 313 Cr.P.C. it is stated that he refused TIP because he was

shown to the witnesses in the Police station, however when refusal was made

in the TIP proceedings no such statement was made by the Appellant Ravi

Kumar. Appellant Rakesh Kumar was duly identified among 11 persons.

The testimony of PW5 suffers from no inconsistencies or improvements and

thus can be safely relied upon to convict the Appellants.

5. However, the issue before this Court is whether in the absence of the

MLC being exhibited can the Appellants be convicted for offence under

Section 307/34 IPC. For an offence under Section 307 IPC which is a grave

offence proof of mensrea is an essential ingredient. Mensrea can be inferred

from the relevant facts proved during trial like the nature of injury caused,

the situs of the injury, number of stab wounds given to the injured etc. To

bring home a charge under Section 307 IPC the onus lies on the prosecution

to prove that the accused caused an act with the intention or knowledge and

under such circumstances that if by that act death was caused he would be

guilty of murder. In the present case in the absence of proof of the MLC, the

nature of injuries, the number of stab wounds, the place where the stab

wounds were inflicted have not been proved. Hence the necessary intention

cannot be gathered, simplicitor from the statement of PW5 the injured. In

the absence of proof of the MLC and any material to show that injuries

caused were grievous/serious in nature so as to cause death, the Appellants

cannot be convicted for offence under Section 307/34 nor 326/34 IPC as

grievous injuries have not been proved.

6. Thus, in view of the facts proved before the learned Trial Court the

conviction of the Appellants is altered to one under Section 324/34 IPC.

Consequently, the sentence of Appellants is altered to rigorous imprisonment

for period of three years and a fine of Rs. 5000/- each and in default of

payment of fine to undergo simple imprisonment for six months for offence

under Section 324/34 IPC. The sentence of Appellant Rakesh @ Dhillo for

rigorous imprisonment for two years for offence under Section 25 Arms Act

and a fine of Rs. 500/- and in default to undergo simple imprisonment for

one month is maintained. The sentences shall run concurrently and the

Appellants will be entitled to the benefit under section 428 Cr.P.C. Thus, the

impugned judgment of conviction dated 29 th April, 2011 and the order on

sentence dated 30th April, 2011 are modified accordingly.

7. Appeals are disposed of. Appellants be informed through

Superintendent Tihar Jail.

(MUKTA GUPTA) JANUARY 11, 2013 'ga'