Kamal Jaiswal & Ors. vs State Of Nct Of Delhi
2013 Latest Caselaw 4212 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 4th September, 2013
                               DECIDED ON : 17th September, 2013

+      CRL.A. 221/2003

       KAMAL JAISWAL & ORS.                            ..... Appellants
                   Through :         Mr.Manish Aggarwal, Advocate
                                     with Ms.Parul Sharma, Advocate.

                         VERSUS

       STATE OF NCT OF DELHI                          ..... Respondent
                     Through :       Mr.Navin K.Jha, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Kamal Jaiswal (A-1), Arun Punia (A-2), Shekar Verma (A-3)

and Sushil Kumar @ Shalu (A-4) impugn a judgment dated 24.03.2003

and sentence order dated 27.03.2003 in Sessions Case No.102/2002

arising out of FIR No.142/2000 registered at Police Station Bhajan Pura

by which they were convicted under Sections 307/427/34 IPC and

sentenced to undergo RI for two years with fine `10,000/- each under

Section 307/34 IPC and RI for six months with fine `5,000/- each under

Section 427/34 IPC.

2. Allegations against the appellants were that on 28.05.2000 at

about 10.30 P.M. at Milan Restaurant, C-6, DDA Market, Yamuna Vihar

they inflicted injuries to Kapil Arora with swords and knives in an attempt

to murder him. They also caused loss to the victim's property by

smashing the furniture and other articles in the restaurant. The police

machinery was set into motion when information was conveyed at 11.05

P.M. that an individual has been stabbed with a sword and Daily Diary

(DD) No.66 B (Ex.PW10/A) was recorded. The investigation was

assigned to SI Rajesh Dangwal who with Ct.Jagat went to the spot. The

First Information Report was lodged after recording victim-Kapil Arora's

statement (Ex.PW-6/A) on 29.05.2000 at 12.45 A.M. During the course of

investigation, statements of witnesses conversant with the facts were

recorded. The appellants were arrested. After completion of investigation

a charge-sheet was submitted against them in the court. They were duly

charged and brought to trial. The prosecution examined 10 witnesses to

establish its case. In their 313 statements, the appellants pleaded false

implication but did not adduce evidence in defence. On appreciating the

evidence and considering the rival contentions of the parties, the Trial

Court held all the appellants perpetrators of the crime for the offences

mentioned previously and sentenced them. It is relevant to note that

during pendency of the appeal, Sushil Kumar (A-4) expired and the

proceedings were dropped as abated by an order dated 24.05.2013.

3. PW-6 (Kapil Arora) is the victim/injured. The First

Information Report was lodged on his statement (Ex.PW-6/A) recorded on

29.05.2000 in the hospital without inordinate delay. Kapil Arora gave

graphic detail as to how the accused persons came at about 10.30 P.M. on

28.05.2000 at his restaurant and on his declining permission to consume

liquor inside the restaurant, they got annoyed and started causing damage

to the articles/furniture. When he attempted to restrain them, they

assaulted him with swords and knives. The police had already received

intimation about the quarrel at 11.05 P.M. when DD No.66 B

(Ex.PW10/A) was recorded. MLC (Ex.PW-8/A) was prepared where the

victim/patient was examined at 11.20 P.M. The victim disclosed to the

examining doctor that he was stabbed about 40 minutes prior to his arrival

in the GTB hospital. The injuries were 'simple' caused by sharp object.

While appearing in the court, PW-6 (Kapil Arora) proved the version

given to the police at the first instance without any major improvements or

variations. He attributed specific role to all the appellants for inflicting

injuries on his body on his refusal to allow them to consume liquor in the

restaurant. In the cross-examination the injuries sustained by the witness

were not challenged. No material contradictions/discrepancies emerged

regarding the version narrated by the complainant/injured. It was not

suggested that the injuries were self-inflicted or accidental in nature or the

appellants were not its author. The appellants did not deny their presence

inside the restaurant, at the time of occurrence. No ulterior motive was

proved to prompt the complainant to falsely implicate the appellants for

the injuries sustained by him and to let the real culprits go scot free. The

appellants had prior acquaintance with him and they all lived in the same

locality. There was no previous animosity among them. The appellants

got enraged when PW-6 (Kapil Arora) did not permit them to consume

liquor in the restaurant. Testimony of PW-6 is in consonance with

medical evidence and there is no inconsistency between the two. The

testimony of a stamped witness has its own relevance and efficacy. It is

accorded a special status in law. This is a consequence of the fact that the

injury to the witness is an in-built guarantee of his presence at the scene of

crime and because the witness will not want to let the actual assailant to

go unpunished merely to falsely involve a third party for the commission

of the offence. In the case of 'State of Uttar Pradesh vs.Naresh and Ors.',

(2011) 4 SCC 324, the Supreme Court held:

"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."

4. It is true that PW-3 (Ct.Preet Singh) and PW-5 (Ct.Jagat

Singh) have given inconsistent version to whom the investigation was

assigned. However, this lapse does not dilute the credibility of injured's

statement. Counsel pointed out that victim had criminal antecedents and

was involved in a number of criminal cases. The contention has no merit

as these are not enough to discard the testimony of the complainant. It

does not give licence to the appellants to take law into their hands to cause

injuries even to a person of criminal background. Non-recovery of

weapon of offence is inconsequential as PW-2 (Dr.Zulfikar) was of the

opinion (Ex.PW-2/A on MLC Mark A) that the injuries were caused with

a 'sharp' weapon.

5. The appellants were convicted under Section 307/34 IPC.

Admittedly, they had gone to Milan Restaurant at about 10.30 P.M. with

an intention to consume liquor. When PW-6 (Kapil) did not allow them, a

quarrel ensued and in a rage, they caused injuries to him. Kapil Arora was

taken to GTB hospital and was medically examined. The injuries were

ascertained 'simple' in nature. He was discharged from the hospital the

next day. The injuries were not sufficient in the ordinary course of nature

to cause death. The appellants did not inflict repeated forceful blows with

weapons on vital organs of the body. The victim and the assailants were

known to each other and they lived in the same locality. No previous

animosity surfaced between the parties. The weapons used could not be

recovered during investigation to ascertain if these were 'deadly' ones. At

no stage prior to the occurrence any threat was extended by the appellants

to eliminate him. No attempt to cause physical assault or harm was made

earlier. I am conscious that to justify conviction under Section 307 IPC,

it is not essential that bodily injury capable of causing death should have

been inflicted. What the Court has to see is whether the act, irrespective of

its result, was done with the intention or knowledge or under

circumstances mentioned in Section 307 IPC. It is sufficient by law, if

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

It depends upon the facts and circumstances of each case whether accused

had the intention to cause death or knew in the circumstances that his act

was going to cause death. The nature of weapon used, the intention

expressed by the accused at the time of the act, the motive for commission

of the offence, the nature and the size of the injuries, the parts of the body

of the victim selected for causing the injuries and the severity of the blow

or blows are important factors to be taken into consideration in arriving

findings under Section 307 IPC. In the instant case there was no

obstruction to the appellants to inflict blows with swords and knives

repeatedly to cause dangerous injuries to the complainant. From the facts

and circumstances of the case 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 on a trivial issue at the spot. The

appellants are liable to the punished under Section 324/427/34 IPC.

6. Under Section 307 IPC the appellants were sentenced to

undergo RI for two years with fine `10,000/- each. A-4 (Sushil Kumar)

has passed away. A-1 (Kamal Jaiswal) remained in custody for some

period prior to his release on bail during trial. The appellants have

suffered agony of trial/appeal for about 13 years. It is significant to note

that during trial, the complainant and the appellants settled the disputes

and filed a compromise deed in the court. Since Section 307 IPC was not

compoundable, the compromise was not taken into consideration.

However, the sentence order specifically records settlement among the

victim and the appellants and for that reason lenient view was taken and

the appellants were sentenced to undergo RI for two years each only.

Since the offence has been altered to Section 324/34 IPC and the matter

has already been settled by the complainant/victim with the appellants, I

am not inclined to award any further substantive sentence to the

appellants. The fine imposed by the Trial Court shall be released to the

victim as compensation.

7. The appeal stands disposed of in the above terms. The

Registry shall transmit the Trial Court records forthwith.

(S.P.GARG) JUDGE 17th September, 2013 sa