Shankar And Anr. vs The State
2014 Latest Caselaw 1962 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Reserved on: 16.04.2014
                                                  Date of Decision: 21.04.2014

+                                   CRL. A.224of 2010

SHANKAR AND ANR.                                            ..... Appellant
            Through:                Mr. S.C. Sagar and Mr Rajesh Rajora, Advs.

                                      versus

THE STATE                                                   ..... Respondent
                         Through:   Ms. Ritu Gauba, APP.

+                                   CRL. A.226of 2010

RAKESH KUMAR CHOLA ALIAS RAJESH             ..... Appellant
            Through: Mr. Dinesh Chander Yadav,
                     Mr. Mahinder Singh & Mr. Amit Tiwari,
                     Advs.

                                      versus
THE STATE                                                   ..... Respondent
                         Through:   Ms. Ritu Gauba, APP.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                      JUDGEMENT

V.K. JAIN, J.

In the night intervening 30/31st October, 2004, Police Control Room

received an information that a person namely Pradeep had been stabbed in

Gali Akhade Wali, Sita Ram Bazar, Delhi and was being taken to JPN

Hospital. The information, when conveyed to Police Station Hauz Qazi was

recorded vide DD No. 3A and a copy of the said DD was handed over to SI

Mahmood Ali for investigation. SI Mahmood Ali reached JPN Hospital,

where the injured Pradeep was found admitted. In his statement to the

police officer, Pradeep stated that on 30.10.2004, he was returning home on

the motorcycle of his neighbour Aditya, after purchasing sweets. His

younger brother Naveen and his friend Bisham @ Chintu were following

them on scooter. At about 11.15 PM, when he reached Sita Ram Bazar in

Gali Bajrang Bali, Bunty, S/o Bhola, Rakesh and Shankar, were already

present there. Rakesh told Bunty and Shankar that they would teach him

(the complainant) a lesson and started beating him by fist and slaps. When

his friend and his brother tried to save him, Rakesh held him, whereas

Shankar and Bunty gave knife blows in his abdomen and all of them then

ran away. An FIR under Section 307/34 of IPC was registered on the

aforesaid statement of the complainant. During investigation, the injured

(complainant) told the Investigating Officer that by mistake, he had given

wrong name of the father of Bunty, whereas correct name was Nihal. He

also alleged that Bunty had given him danda blow, whereas knife blow was

given by Shankar. He also alleged that the persons named in the FIR were

accompanied by another boy namely Omi, who was living in gali Khatikan,

but he had forgotten to mention his name in the first statement and Omi had

also given the fist and stab blows to him. Thus, four persons, namely,

Rakesh, Shankar, Jitesh @ Bunty @ Tie & Omi alias Om Prakash were

prosecuted under Section 307/34 of IPC. The accused Shnakar was also

prosecuted under Section 25 of Arms Act.

2. On 28.8.2006, all the four accused were charged under Section 307/34

of IPC. The accused Shankar was also charged under Section 25/27 of

Arms Act. Since the accused persons not pleaded guilty to the charges, 13

witnesses were examined by the prosecution. No witness, however, was

examined in defence.

3. The complainant Pradeep Yadav came in the witness-box as PW-1

and inter alia stated that on 30.10.2004, at about 11.00 PM, he was returning

to his home on the motorcycle of his friend and neighbour Aditya Bajpayee,

after purchasing sweets from Standard Sweets, Sita Ram Bazar. His brother

Naveen Yadav and friend Bhism were following them on their scooter.

When they reached near gali Bajran Wali at Main Road, Sita Ram Bazar, at

about 11.15 PM, he saw the accused Bunty @ Jitesh, Shankar, Rakesh and

Om Prakash, all of whom were previously known to him standing there.

They stopped his motorcycle and Shankar caught him by collar and led him

down on ground and all the accused in furtherance of their common

intention, said "AAJ ISKA KAAM TAMAM KER DETE HAIN". The

accused Rakesh @ Chola caught him by waist, Bunty assaulted him with a

danda on his head, Omi assaulted him with fist and slaps and Shankar

attacked him with a knife on his stomach. He also alleged that all of them

had personal enmity with him since on one of the occasions, they had a

quarrel with his neighbour Deshraj and he (the witness) had intervened in

the matter and got it settled. He further stated that after assaulting him, the

accused persons ran away and he was brought to the hospital by his cousin

brother Anil Yadav. He also stated that accused Shankar was identified by

him in Tis Hazari Complex. However, in cross-examination by Additional

PP, he stated that he had identified Shankar in the police station on

22.11.2004.

4. PW-2 Naveen Yadav is the brother of the complainant. He inter alia

stated that on 30.10.2004, he along with his brother Bhism was coming on

the scooter of Bunty, whereas his brother Pradeep was coming on the

motorcycle of Aditya Bajpayee. At about 11.15 PM, when they reached gali

Bajran Wali, Sita Ram Bazar, they found all the accused present there. The

accused Rakesh stopped the motorcycle and asked the other accused to teach

him a lesson and started beating him. Thereafter, all the accused said "AAJ

ISKA KAAM TAMAM KER DETE HAIN". He further stated that accused

Rakesh caught his brother by his waist and Bunty assaulted him with danda,

Om Prakash assaulted with fist and Shankar attacked him with a knife.

After assaulting his brother, all the accused persons ran away from the spot,

whereas his brother Pradeep was taken to hospital.

PW-5 Bhism Kumar inter alia stated that at about 3-4 years ago, he

along with his friend Naveen Yadav was going towards Sita Ram Bazar

from Hauz Qazi. Aditya and Pradeep Yadav were going ahead of them on

the motorcycle being driven by Aditya Bajpayee. When they reached near

Bajrang Wali gali, accused Bunty and Shankar came from the front side

along with three more persons and stopped the motorcycle of Pradeep

Yadav. Bunty hit a danda on Pradeep, whereas Shankar inflicted knife boys

on him and, thereafter, those persons ran away. He, however, could not

identify the other persons who had committed the offence along with Bunty

and Shankar.

5. Shri Aditya Bajpayee came in the witness box as PW-6 and inter alia

stated that on 30.10.2005, at about 11.30 PM, he was returning from Hauz

Quazi on motorcycle and was drunk. He noticed 15-20 boys were

quarrelling with each other and his motor cycle fell down. He then ran in

the street. When he came out of the street, he found Pradeep Yadav bleeding

from his stomach portion. He took Pradeep on bike and removed him to his

house. During cross-examination by the learned APP, he admitted that

Pradeep Yadav was sitting behind him on his motorcycle.

6. PW-7 Shri Anil Yadav stated that on 30.10.2004, at about 11.00 AM,

when he was present at his shop near Lal Darwaja, he heard some noise in

the area and went towards there, where he saw his cousin brother Pradeep

lying in a pool of blood and took him to hospital in a rickshaw.

PW-12 SI Mahmood Ali is the Investigating Officer of this case. He

inter alia stated that after arresting the accused Shankar, he had interrogated

him and recorded his disclosure statement Ex.PW-12/E. Shankar led them to

a public urinal near Ajmeri Gate, Delhi and got recovered one Buttondar

knife, after lifting the same from its roof.

PW-13 Constable Nagender Kumar has also deposed with respect to

recovery of Buttondar knife.

PW-4 Dr Virender Kumar proved the signatures of Dr. Naveen

Kushwaha on the MLC of the Pradeep Ex.PW-4/A

7. In their respective statements under Section 313 Cr.P.C., the

appellants denied the allegations against them and claimed to be innocent.

Vide impugned judgment dated 01.02.2010 all the four accused

persons were convicted under Section 307 read with Section 34 thereof.

Vide impugned Order on Sentence dated 08.02.2010, they were sentenced to

undergo RI for three years each and to pay fine of Rs 2000/- each or to

undergo SI for two months each in default. The appellant Shankar, however,

was acquitted of the charge under Section 25 and 27 of Arms Act. Being

aggrieved from their conviction and sentence awarded to them, the

appellants are before this Court by way of this appeal.

8. The learned counsel for the appellant has assailed the impugned

judgment on the following grounds:

i. In the FIR, the complainant alleged that knife blow to him was given

by Bunty and Shankar, whereas when he came in the witness box, he

claimed that knife blows to him were given only by Shankar;

ii. The appellant Om Prakash @ Omi was not named in the FIR though

he was previously known to the complainant;

iii. There was a previous enmity between the appellant and the

complainant;

iv. When the complainant went to hospital, he claimed to have been

assaulted by some known persons, but did not name any of them;

v. The complainant was smelling alcohol when he was examined by the

doctor;

vi. The prosecution has failed to connect the knife alleged to have been

recovered from the appellant Shankar with the injuries allegedly sustained

by the complainant;

vii. No offence under Section 307 of IPC is made out from the deposition

of the witnesses and at best Section 324 of IPC is attracted.

viii. Group of the blood, which is alleged to have been found on the knife

was not taken, meaning thereby that the prosecution failed to prove that the

knife alleged to have been recovered from the appellant Shankar was used

for causing injuries to the complainant.

ix. Neither the knife nor the clothes of the injured, alleged to have been

recovered at the instance of the appellant Shankar, were produced during

trial and shown to the eye witnesses.

9. As far as the appellant Om Prakash @ Omi is concerned, he was not

named in the FIR, though the complainant claims that the said accused was

previously known to him. Since the aforesaid appellant was previously

known to the complainant, it is quite unlikely that he would have missed his

name while giving statement to the IO on the night intervening

30/31.10.2004. The complainant in his aforesaid statement named all other

assailants, but did not name Omi. The omission to name Omi has to be

examined in the light of the fact that according to the complainant he had a

previous animosity with them. More importantly, the FIR shows

involvement of only three persons and not four persons in the incident. In

these circumstances, when the FIR alleges involvement of three persons, the

appellant Om Prakash @ Omi being previously known to the complainant

was not named in the FIR and there was previous enmity between the

parties, the possibility of false implication of the appellant Om Prakash @

Omi cannot be ruled out. The aforesaid appellant, therefore, is entitled to

benefit of doubt.

10. Though in the FIR the complainant imputed knife blows to the

accused Bunty as well as Shankar whereas no knife blow to Bunty was

imputed by him when he came in the witness box, that omission would have

no bearing as far as the case against the appellant Shankar is concerned. The

complainant was consistent, in the FIR as well as while deposing in the

court that the appellant Shankar had given knife blows to him. As far as

Bunty is concerned, he has accepted the decision of the trial court and has

not preferred any appeal.

11. As far as the previous enmity between the appellants and the

complainant is concerned, the same could be a cause for causing injuries to

the complainant as well as a motive for false implication. The court, in such

a case has to carefully scrutinize the evidence and then decide whether

previous enmity was the cause behind the incident in question or the

complainant has tried to settle scores by implicating an innocent person. A

perusal of the MLC of the complainant Pradeep Yadav would show that

when he was examined in the hospital, he had as many as three (3) clean

incised wounds over his right side loin. The injured Pradeep Kumar was

unlikely to cause such serious injuries to himself only with a view to

implicate the appellants in a false case. This is not the case of the appellants

that some other person had caused the aforesaid injuries to the complainant

Pradeep Kumar. When Pradeep went to the hospital soon after the incident

he alleged that he had been assaulted by some known persons in Gali

Akhade Wali about half an hour earlier. The above statement given by him

in hospital is in consonance with the FIR lodged by him. Therefore, in the

facts & circumstances of the case it appears to me that the complainant

Pradeep Kumar was attacked on account of the previous enmity he had with

Shankar and his accomplices and this was not a case of false implication.

Not giving names of the assailants while taking admission in the hospital is

insignificant considering that soon after the incident the complainant was

examined by the Investigating Officer and the accused persons were named

in his statement to the police.

12. The complainant smelling of alcohol at the time he was examined in

the hospital would be of no consequence considering that this is not the case

of the appellants that a fight had ensued between them and the complainant

and the said fight was initiated by the complainant under influence of liquor.

Though there is no evidence to connect the knife alleged to have been

recovered from the appellant Shankar with the injuries sustained by the

complainant, that by itself does not indicate that no knife at all was used for

causing injuries to him. At best the court can infer that the knife alleged to

have been recovered by the police was not the same knife which was used

for causing injuries to the complainant. It cannot lead to the inference that

no knife at all was used. As noted earlier three (3) incised wounds were

found on the person of the complainant when he was examined in the

hospital. The incised wounds are certainly possible from a knife and this is

not the case of the appellants that they had used a weapon other than knife

for causing those injuries to the complainant. Similarly, the failure of the

prosecution to prove the group of the blood on the knife and show the knife

and the clothes of the complainant to him at the time he was examined in the

court would be of no consequence considering the direct testimony of the

complainant with respect to use of the knife as well as identity of the

persons who gave the said injuries to him.

13. It was also contended by the learned counsel for the appellant Shankar

that PW6 Shri Aditya Bajpayee did not support the prosecution and the

presence of PW5 Bhishma Kumar and PW2 Naveen Yadav at the time of the

incident is doubtful considering that no injury was sustained by either of

them and neither of them took the injured to the hospital. There may be

merit in the submission. But, I need not go into this aspect of the matter

considering that the deposition of the complainant Pradeep Yadav itself is

sufficient to prove the case against the appellants Shankar and Rakesh

Kumar. Ordinarily, the injured person is the best witness of the incident in

which he sustained injuries. Being the victim of the crime he is likely to be

the last person to let off the real culprit(s) and blame an innocent person for

the injuries sustained by him. It would be his desire that the person who

caused injuries to him is brought to justice. In Mer Dhana Sida vs. State of

Gujarat AIR 1985 SC 386, three injured witnesses had supported the

prosecution. It was held by Hon'ble Supreme Court that as there were three

injured witnesses, and we would require very convincing submissions to

discard the evidence of the injured witnesses whose injuries would at least

permit a reasonable inference that they were present at the time of

occurrence. Undoubtedly, this is subject to the requirement that there must

be evidence to show that these witnesses received injuries in the same

occurrence. Very cogent and convincing ground would be required to

discard the evidence of the injured. In Machhi Singh vs. State of Punjab

1983 Crl.L.J.1457, one witness Hakam Singh himself had sustained injuries

in the course of incident in question, it was observed by Hon'ble Supreme

Court that it was difficult to believe that he would implicate the persons

other than the real culprits and that the evidence of that witness alone, was

sufficient to bring home the guilt the appellants even if one were to exclude

from consideration, the evidence of other PWs. Identical view was taken by

the Hon'ble Supreme Court in a number of other cases including "Makan

Jivan &Others Vs. The State of Gujarat", AIR 1971 SC 1797, "Hori Lal &

Another Vs. The State of U.P.", AIR 1970 SC 1969, and "Jamuna

Chaudhary & Others Vs. State of Bihar", AIR 1974 SC 1822.

14. Coming to the contention that no offence under Section 307 of IPC is

made out either against the appellant Shankar or against the appellant

Rakesh Kumar, in order to succeed in a charge for attempt to murder, the

prosecution is required to prove (i) that the death of injured was attempted,

(ii) that his death was attempted to be caused by or in consequence of the act

of the appellant and (iii) that such act was done with the intention of causing

death or that it was done with the intention of causing such bodily injuries as

the appellant knew to be likely to cause death or were sufficient in the

ordinary course of nature to cause death. Although the nature of injury 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. What the court has to see is whether the act, irrespective of

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

circumstances mentioned in the section. The intention of the assailants can

be gathered from the motive for the crime, nature of weapon used, number

of blows given by him, severity of blow and the parts of the body where the

injuries are inflicted and other surrounding circumstances, if any.

15. In the case before this Court, there was a previous enmity between the

assailants on the one hand and the complainant Pradeep Kumar on the other.

The appellant Shankar used a knife, which is a deadly weapon, for the

purpose of causing injuries to him. The injuries were given in the loin area,

which is a part of the body between ribs and pelvis, especially regarded as

the seat of physical strength and generative power. This area also includes

the genitals and public area and the injuries on such a delicate part of the

body, using a sharp edged weapon such as knife for the purpose can prove to

be fatal. The appellant Shankar did not stop at giving one knife blow to the

complainant and gave three (3) continuous knife blows one after another, all

in the loin area. It is, thus, evident that he intended to cause murder of the

complainant by giving stab wounds to him in a delicate part of his body.

This inference finds strength from the fact that there was a previous enmity

between the parties and, therefore, the appellant Shankar wanted to settle

scores with the complainant by causing his death. In the facts &

circumstances of the case, no fault can be found with the conviction of the

appellant Shankar under Section 307 of IPC.

16. As far as the appellant Rakesh Kumar is concerned, the deposition of

the complainant shows that he had held him by waist when the appellant

Shankar gave knife blows to him. Before knife blows were given to the

complainant, the accused persons had unequivocally expressed their

intention to murder the complainant by saying - "aaj iska kaam tamam kar

dete hain".

Section 34 of IPC is based on the principle of joint liability for

committing a criminal act. In order to succeed in prosecution of a person

who is charged with the aid of Section 34 of IPC, the prosecution must

necessarily establish the existence of common intention which the accused

share with each other and the commission of the offence in furtherance of

that intention. The accused persons must be shown to be acting in consort

though existence of a pre-arranged plan is not to be insisted in every case. A

prior of meeting of minds between the accused persons may be determined

either from an overt act or from the conduct of the offenders during

commission of the offence. It may also be inferred from the declaration

made by them just before carrying out attack.

Had the appellant Rakesh Kumar not held the complainant he could

possibly have tried to save himself from the knife blows given to him by the

appellant Shankar but, he became immobilised on account of Rakesh having

held him by waist. The intent behind the appellant Rakesh in holding the

complainant at the time knife blows were given to him by Shankar is evident

from his continuing to hold the complainant by waist, so long as Shankar

kept on giving knife blows to him. Had he not shared a common intention

with the appellant Shankar to commit murder of the complainant he would

have released the complainant as soon as the first knife blow was given to

him. Therefore, in the facts & circumstances of the case there can be no

doubt that he shared a common intention with the appellant Shankar to

commit murder of the complainant and it was in furtherance of the said

common intention that he had held the complainant when multiple knife

blows in his abdomen were given by Shankar.

In Satbir @ Lakha Vs. State of Haryana (2012) 10 SCC 755, the

appellant held PW7, Jasbir Singh at the time knife blow was given to him by

Accused No.1. It was contended on his behalf that there was nothing to

show that he was aware of possession of knife by accused No.1 and there

was no clinching evidence to show that he shared common intention with

accused No.1 or the other accused in the infliction of injuries on the

complainant party. Noticing the finding of the trial court that the injury on

the body of PW7 Jasbir Singh was by virtue of the overt act of the appellant

in having him immobile which facilitated accused No.1 Subhash Singh to

inflict injuries to him, the contention was rejected.

In Ramesh Singh v. State of A.P. [(2004) 11 SCC 305], Accused No.2

and 3 had held the hands of the deceased when he was assaulted by the

Accused No.1. Upholding their conviction, the Apex Court inter alia held as

under:-

"Once the prosecution evidence tendered through PWs 1 to 3 is accepted, then it is clear that when A-2 and A-3 held the hands of the deceased, they had some intention in disabling the deceased. This inference is possible to be drawn because the appellants in their statement recorded under Section 313 Cr.PC did not give any explanation why they held the hands of the deceased which indicates that the appellants had the knowledge that A-1 was to assault the deceased. The fact that the appellants continued to hold the deceased all along without making any effort to prevent A-1 from further attacking, in our opinion, leads to an irresistible and an inescapable conclusion that these accused persons also shared the common intention with A-1."

In Goudappa and others vs. State of Karnataka [(2013) 3 SCC 675],

the role attributed to Accused No.3 and 4 was that they had caught hold of

the deceased when, Accused No.5 caused injuries to him. The conviction of

the aforesaid accused with the aid of Section 34 of IPC was challenged on

the ground that from the aforesaid act, it could not be inferred that the crime

was committed in furtherance of common intention. Rejecting the

contention, the Apex Court inter alia held as under: -

"23...when we proceed to consider the case of these two appellants, namely, Accused 3 Goudappa and Accused 4 Channappa alias Ajjappa, we have no hesitation in coming to the conclusion that the deceased Channappa was done to death in furtherance of their common intention. All the accused had assembled at once place and the moment the deceased came out of the house to spit, one of the accused started abusing him. They were armed with axe and jambia and by catching and immobilising the deceased these two accused facilitated the assault by Accused 5. Accused 5 stabbed the deceased with jambia over the left side of the chest and the blow was to severe that it penetrated into the heart and liver. The fact that these appellants held the deceased and facilitated the other accused to give the fatal blow and made no effort to prevent him from assaulting the

deceased leads to irresistible and inescapable conclusion that these two appellants shared the common intention with Accused 5".

17. For the reasons, stated hereinabove, the appellant - Om Prakash @

Omi is given benefit of doubt and is acquitted whereas the conviction of the

appellant - Shankar and Rakesh Kumar @ Rajesh under Section 307 of IPC

read with Section 34 thereof is maintained. While maintaining the sentence

awarded to the appellant - Shankar, the substantive sentence awarded to the

appellant - Rakesh Kumar @ Rajesh is reduced from three (3) years, as

awarded by the learned trial court, to two (2) years.

The appeals stand disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent

for information and necessary action.

Trial court record be sent back alongwith a copy of this order.

APRIL 21, 2014                                              V.K. JAIN, J.
BG/b'nesh