Vikash Bhardwaj @ Sonu & Anr. vs State Of Nct Of Delhi
2014 Latest Caselaw 935 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on: 17.01.2014.
                             Judgment delivered on:20.02.2014

+      CRL.A. 104-105/2006
       VIKASH BHARDWAJ @ SONU & ANR
                                                         ..... Appellants
                             Through    Mr.Mithlesh Kumar, Adv.
                             Versus

       STATE NCT OF DELHI
                                                           ..... Respondent
                             Through    Ms.Kusum Dhalla, APP along
                                        with SI J.K. Singh.

+      CRL.A. 143/2006
       DHARMENDER KUMAR @ KALLU
                                                         ..... Appellant
                             Through    Mr.Rajeev Kumar Malik, Adv.
                             Versus

       THE STATE NCT OF DELHI
                                                           ..... Respondent
                             Through    Ms.Kusum Dhalla, APP along
                                        with SI J.K. Singh.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and order of sentence

dated 28.01.2006 & 30.01.2006 whereby the three appellant Vikas

Bhardwaj @ Sonu, Dharmender Kumar @ Kallu and Pramod @ Banti

had been convicted under Section 307/34 of the IPC and each of them

had been sentenced to undergo RI for a period of 2 years and to pay a

fine of Rs.2,000/- and in default of payment of fine, to undergo SI for 3

months.

2 Nominal roll of the appellants have been summoned. Nominal roll

of appellant Vikas Bhardwaj shows that out of total sentence of two

years which had been awarded to him, as on 25.08.2006 (date of his

grant of bail) he had suffered incarceration of about 8 months including

the remissions earned by him. Appellant Pramod has suffered a sentence

of about 1 month & 20 days. Appellant Dharmender has suffered

sentence of about 17 days.

3 On 25.02.2002, DD No. 5-A (marked 'X') was received in PS

Mayur Vihar reporting that a quarrel had taken place at the crossing of

block No. 26-27 of PS Trilok Puri. SI Mahipal (PW-10) along with

constable Rajender reached the spot. The injured Sarfaraz (PW-1) had

been removed to the LBS hospital. PW-10 reached the hospital where

MLC of the victim (Ex.PW-3/A) was obtained. The following two

injuries had been noted on his person:-

"1 Incised wound 2.5 cm X 0.4 cms in the epigastriun around 10 cms above.

Umbillicus on the midline with fresh oozing vertically. 2 Incised wound 1.5 cm diameter in the right hypochondium around 8 cms above and later to Umbillicus."

4 The patient was fit for statement and his statement Ex.PW-1/A

was recorded. This was at 01:40 am. Version of PW-1 was that he along

with his friends had gone to the residence of Hanif Khan (PW-8) at

Trilok Puri for a party. Music was on and the disk jockey (DJ) was

playing. The accused persons as also the complainant (PW-1) were

dancing. Accused persons were known to the complainant. During the

dance, the feet of PW-1 touched the feet of Vikas Bhardwaj as a result

of which an altercation took place. PW-8 was informed; he got the

matter settled. At about 01:00 am, when PW-1 was going to his house

and had reached the crossing of block 26-27, the accused persons who

were standing there of whom Dharmender Kumar and Pramod caught

hold of PW-1 and accused Vikas Bhardwaj stabbed PW-1 twice with a

knife. Cries were raised; his father Sultan Ahmad (PW-2) reached the

spot.

5 It was on this complaint (Ex.PW-1/A) that the rukka was

dispatched at 01:40 am pursuant to which the FIR under Section 307/34

of the IPC was registered. Site plan (Ex.PW-10/K) was prepared; the

spot where the incident had taken place had been depicted at point 'A'

and point 'B' was shows as the residence of PW-8. The spot was just

after the gali from the entrance of the house of PW-8. The knife i.e. the

weapon of offence was admittedly not seized.

6 In the statement of the accused recorded under Section 313 of the

Cr.PC, their version was that they have been falsely implicated; they are

students; they have not caused any injury upon the victim.

7      No evidence was led in defence.

8      On behalf of appellants Vikas Bhardwaj and Pramod, arguments

had been addressed by Mr. Mithilesh Kumar Singh in detail. On behalf

of appellant Dharmender Kumar, arguments had been addressed by Mr.

Rajeev Kumar Malik. It is pointed out that the ingredients of Section

307 are which necessarily involves an intention or knowledge on the

part of the accused to have caused injury upon the victim and by their

act they could have caused death of the victim is clearly missing. To

support this submission reliance has been placed upon (1988) 4 SCC

551 Hari Singh Vs. Sukhbir Singh & Others as also (2004) 13 SCC 189

Parsuram Pandey and Others Vs. State of Bihar. Attention has been

drawn to Ex.PW-3/A; submission being that the MLC had noted two

injuries which are not on the vital parts of the body; the first injury is

only an incised wound of 2.5 cm X 0.4 cms and the second injury is

incised wound of 1.5 cm; victim remained in the hospital for only 8

hours. Injuries were opined to be 'simple'; he was discharged on the

same day. No bony injury has been noted as is evident from the X-ray

report Ex.PW-5/A. Further submission being that there was no enmity

between the parties; they were in fact friends; intention or premeditation

on the part of the appellants did not arise. Non-recovery of the knife

shows that the intent cannot be gathered as the length and breadth of the

knife is not known. Further submission being that if the appellants were

arrested at the spot, why the knife was not recovered also throws doubt

on the version of the prosecution. PW-8 has also not supported the

version of the prosecution. It is a clear case of false implication for the

reason that it has come in the evidence of PW-1 that a cross FIR under

Section 324 of the IPC was also pending against the appellants. This is a

case of false implication. Learned counsel for the appellants has placed

reliance upon 1971 (3) SCC 762 Jai Narain Mishra and Others Vs. State

of Bihar to support a submission that where simple injuries were

suffered by the victim, conviction under Section 307 of the IPC was not

justified. Impugned judgment is liable to be set aside.

9 Arguments have been refuted by the learned public prosecutor. It

is pointed out that on no count, does the impugned judgment suffer from

any infirmity. Attention has been drawn to the statement of the victim

PW-1 which has been corroborated by PW-2. Submission being that the

MLC (Ex.PW-3/A) also evidences that the injures were caused by the

appellants on vital parts of the body i.e. the abdominal area which is a

vital area. The premeditation and motive on the part of the appellants to

have caused injures upon the victim is clear from the fact that after the

incident was over which was in the house of PW-8, all the accused

persons were waiting outside in the chowk ready to attack the victim.

Learned APP for the State has placed reliance upon (2011) 8 SCC 300

Safiq Ahmad @ Rafi Vs. State of Uttar Pradesh to support her

submissions; submission being that the impugned judgment does not

call for any interference.

10 Arguments have been heard and record has been perused.

11 The injured eye-witness is PW-1. He has deposed that on

25.02.2002, a party was going on at the residence of PW-8. Accused

persons were known to him. Accused persons as also the complainant

were dancing; the feet of one of the accused Vikas Bhardwaj touched his

feet pursuant to which an altercation took place. PW-8 settled the

matter. At about 01:00 am when PW-1 was going toward his house and

when he reached the crossing of block No. 26-27, accused persons were

found standing there; Dharmender and Pramod caught hold of PW-1 and

Vikas Bhardwaj stabbed him on his chest; PW-1 started bleeding. His

statement Ex.PW-1/A was recorded.

12 In his cross-examination, PW-1 denied the fact that was under the

influence of liquor; he denied that one Mool Chand was not present at

the party; he raised alarm after he was stabbed with knife; he became

conscious after 3-4 hours in the hospital; he denied the suggestion that

accused has been falsely implicated. He admitted that there is a case

pending against him under Section 324 of the IPC; he denied the

suggestion that he is a bad character (BC) of the area.

13 PW-1 is the only eye-witness as Mool Chand who was alleged to

be another eye-witness has not been produced into the witness box by

the prosecution. PW-2 has also admitted that Mool Chand was present at

the spot. The testimony of PW-2 is admittedly not an eye-witness

account. He had reached the spot after the incident was over. This is the

version of the prosecution itself. PW-2 has deposed that on 26.02.2002

at about 01:00 am while he was present at his residence and watching

television, he heard a noise at the crossing of block No. 26-27 and when

he reached there, he was informed by Mool Chand that his son Sarfaraz

has been stabbed by Vikas Bhardwaj. Vikas Bhardwaj had also

confessed to this crime. Police complaint was accordingly lodged.

14 In his cross-examination, PW-2 admitted that when he reached at

the spot, his son was lying in an injured condition; he was taken to the

hospital; his son was discharged in the morning at 09:00 am. Police had

recorded his statement.

15 The MLC of the victim has evidenced two injuries; an incised

wound of 2.5 cm X 0.4 cms in the epigastriun and a second incised

wound of 1.5 cms has also been noted. Dr. R.N. Dass (PW-3) has come

into the witness box to prove this MLC. The final opinion on the injuries

were simple, sharp and fresh; it was given two weeks later i.e. after the

X-ray had been conducted upon the victim; the X-ray had been advised

on the victim. Dr. M.N. Singh (PW-5) had noted no bony injury upon

the victim as is evident from Ex.PW-5/A.

16 PW-8 was the person in whose house the party was organized

which the complainant and accused persons had gone to attend. He has

deposed that party in his house continued pm till after midnight i.e.

12:30 am. Mool Chand as also other persons attended the party. An

altercation had taken place between accused Vikas Bhardwaj and the

complainant; he did not know the reason. When PW-8 learnt about the

altercation, he asked his friends to go to their respective houses. PW-1

had also left the house. Accused persons stayed for some time and

thereafter they also left. In a further part of his evidence, since this

witness was turned hostile, he was permitted to be cross-examined by

the learned public prosecutor. He denied the suggestion that he was told

that Vikas Bhardwaj had stabbed PW-1. Even as per his version under

Section 161 of the Cr.PC, the prosecution has not projected PW-8 as an

eye-witness. He admitted that apart from other persons, Mool Chand had

also attended the party. This is also substantiated in the versions of

PW-1, PW-2 and PW-8. However, Mool Chand for reasons best known

to the prosecution was not examined.

17 The Investigating Officer has been examined as PW-10. He had

recorded the statement of the victim (Ex.PW-1/A) in the hospital after

the victim was declared fit for statement. The victim was discharged

after eight hours i.e. 09:00 am and the opinion on his injures were

simple and sharp. The injuries have also been described and noted supra.

In his cross-examination, PW-10 has admitted that the victim was

conscious when he recorded his statement which was around 02:25 am.

18 PW-10 had arrested the accused persons. Arrest memos Ex.PW-

10/F. Ex.PW-10/G and Ex.PW-10/H show that all the accused persons

were arrested from their respective homes at around 10:00-10:30 am in

the morning of 26.02.2002. None of the accused had absconded. These

arrest memos have been countersigned by PW-1 and PW-2 but neither

PW-1 and nor PW-2 has deposed a word about the arrest of the accused;

they not stated that it was on their identification that the accused persons

were arrested.

19 The knife which was the weapon of offence has admittedly not

been recovered. PW-10 had deposed that police remand of accused

Vikas Bhardwaj was taken but even after police remand, the knife was

not recovered. Whether it was a pen knife or a kitchen knife could not

be known. Its length and breadth remained a secret. However the nature

of the injuries (as is evident from MLC Ex.PW-3/A) established that the

length of the blade could not be long; the longest injury being a

dimension of 2.5 cm X 0.4 cm; the second injury was incised wound of

1.5 cms in diameter. Injuries were simple; the victim remained in the

hospital for 7-8 hours; he was conscious at the time of admission.

Ex.PW-3/A shows that he was stable, conscious and his vital parameters

were normal.

20 It is in this background that the conviction of the appellants under

Section 307/34 of the IPC has to be viewed.

21 The essential ingredients required for a conviction under Section

307 of the IPC are :

"(i) That the death of a human being was attempted;

(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;

(iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act know to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."

22 All the ingredients of the offence must be present before a

conviction can be ordered. The injuries sustained, the manner of the

assault and the weapons used are all relevant factors. The intention or

knowledge which is foremost ingredient of Section 307 of the IPC must

precede the act attributed to the accused. This intention/knowledge has

to be gathered from the circumstances and not necessarily from the

ensuing result.

23 Record shows that the parties were friends; they had gone to

attend a party of a common friend; music was being played by the disk

jockey. Accused as also the appellants were dancing. Obviously they

were in the mood of revelry and enjoyment. At the time, when the feet

of complainant touched the feet of Vikas Bhardwaj, an altercation took

place between the parties; details of this version has not been elicited in

the version of PW-1 but the reason for altercation was based on this

trivial incident. This altercation took place in the house of PW-8. This

was around 12:30 midnight. After this incident, PW-8 had disbursed the

party and asked the respective guests to return to their home which

included PW-1 and the accused. However, the accused stayed there for

some more time. Site plan (Ex.PW-10/K) shows that the place of

incident as just outside the entrance of the house of PW-8 i.e. at the

crossing of block No. 26-27. As per PW-1 accused persons were found

standing there when PW-1 was going towards his house. It is also not

the case of PW-1 that any altercation had taken place between him and

the other co-accused i.e. Dharmender and Pramod; altercation was with

Vikas Bhardwaj alone. In this background, whether the accused persons

were standing at the crossing with premeditated intention to attack PW-1

or they were also on their way home from the party cannot really be

known. PW-1 had not spoken of any argument with any of the other co-

accused i.e. either Pramod or Dharmender.

24 As per PW-1, Pramod and Dharmender had caught hold of him

and Vikas had inflicted two knife blows which as noted supra were in

the epigastriun region; injuries were opined to be 'simple'; PW-1 had

been discharged from the hospital after 7-8 hours; he was conscious and

well-oriented at the time of his admission; his statement was recorded

by the Investigating Officer (PW-10) within the next two hours of the

incident pursuant to which the rukka was dispatched and the FIR was

registered. No bony injury was also noted.

25 In this background, it cannot by any stretch of imagination be said

that the accused persons have any premeditated design or intent or

knowledge that by their act i.e Dharmender and Parmod catching hold of

the victim and Vikas Bhardwaj stabbing him, they could have caused his

death. As noted supra knife was not recovered inspite of police remand

taken of accused Vikas Bhardwaj. What was the length and breadth of

the knife was not known. Clearly, the knife did not have a long blade as

the length of the more serious injury was only 2.5 cm long. The victim

as noted supra was discharged within less than 7-8 hours; at the cost of

repetition, injuries were simple. Parties were also known to each other.

They were in fact friends. No case of earlier rivalry has been noted;

what has however come on record is that PW-1 had one case registered

against him under Section 324 of the IPC. This fact may not be relevant

to answer as to whether the conviction of the appellants under Section

307 of the IPC can be sustained or not.

26 The entire incident has taken place within a span of less than 40-

45 minutes. The arguments in the party were between Vikas Bhardwaj

and PW-1. Dharmender and Parmod had no role in that argument. The

possibility that they were also returning home after the party where in

the heat of passion when PW-1 had come out of the house of PW-8, they

attacked him cannot be ruled out. The incident was on the spur of the

moment. This Court is thus of the view that keeping in view all the

aforenoted background, the accused did not have the intention or

knowledge that by their act they could have caused the death of the

victim.

27 Keeping in view the overall circumstances, nature of injuries,

knife not having been recovered and there being no previous enmity

between the parties, the conviction under Section 307 of the IPC is not

sustainable. The conviction is accordingly modified to one under

Section 324 of the IPC.

28 Section 324 of the IPC pre-supposes an act of voluntarily causing

hurt by and instrument for shooting, stabbing or cutting; the

imprisonment for this offence is the maximum sentence of three years or

a fine or both.

29 The intent of the Legislature can be gathered from the fact that

this offence prescribes an imprisonment which may extend to three

years or with fine. Keeping in view the fact that the offence relates to

the year 2002 i.e. more than 12 years old and much time and water

having flown since that period; accused have settled in life; they being

first time offenders and young in years at the time of the offence, there

would be no useful purpose served in sending them back to the jail.

Accordingly, the sentence already undergone by each of the accused is

the sentence awarded to them; each of the accused person shall however

pay additional fine of Rs.25,000/-; in default of payment of fine, they

would undergo SI for 4 months. This fine shall be paid within 10 days

and the amount be remitted back to the complainant. Investigating

Officer shall ensure compliance.

30     Appeal disposed off in the above terms.



                                            INDERMEET KAUR, J
FEBRUARY 20, 2014
A