Ashok Kumar vs State
2014 Latest Caselaw 1179 Del

$~R-35
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on: 28.02.2014.
                                   Judgment delivered on: 05.03.2014
+      CRL.A. 123/2006
       ASHOK KUMAR                                       ..... Appellant
                          Through       Ms.Seema Gulati and Mr. Pawan
                                        Sharma, Advs.
                          versus
       STATE                                           ..... Respondent
                          Through       Ms.Fizani Husain, APP.

INDERMEET KAUR, J.

1 Appellant Ashok Kumar is aggrieved by the impugned judgment

and order of sentence dated 14.02.2006 and 16.02.2006 respectively

wherein he had been convicted under Sections 307 and 326 of the Indian

Penal Code (IPC) and had been sentenced to undergo RI for 7 years and

to pay a fine of Rs.1,000/- in default of payment of fine to undergo SI

for 2 months for the offence punishable under Section 307 IPC; for the

offence punishable under Section 326 IPC he had been sentenced to

undergo RI for 5 years and to pay a fine of Rs.1,000/- in default of

payment of fine to undergo SI for two months. Sentences were to run

concurrently. Benefit of Section 428 Cr.P.C. had been granted.

2 Record shows that charge sheet had been filed against three

accused including the present appellant, Ravi Dutt and Anand Kumar; of

whom both Ravi Dutt and Anand Kumar were acquitted. Ravi Dutt was

the father of the present appellant and Anand Kumar was his cousin.

3 Incident is dated 11.6.1994, it had occurred at about 7.30 p.m.

DD No.43B (Ex.PW-7/A) was recorded at 8.05 p.m. in the local police

station giving intimation that a quarrel was going on at the spot i.e.

crossing of Bhoomika Pooja Sthal (Tyagi Mohalla, Chattarpur). This

DD was marked to SI Bansidhar (PW-7) who along with constable

Shanker Lal reached the spot, where they learnt that the injured had

been removed to the AIIMS hospital. On reaching the hospital,

statement of the injured Jitender Tyagi (PW-1) (Ex.PW-1/A) was

recorded. As per his version, on the fateful day, he had gone to visit his

grandmother at village Chattarpur and on his way back to home when he

reached near Punia Pooja Sthan near the chaupal of the village, he saw

Ashok Kumar; on seeing him, the appellant got enraged and started

abusing him; he attacked him with a knife; injuries were suffered on his

left hand, back, shoulder and on his head. Meanwhile, his brother Sushil

(PW-2) who was coming from opposite direction to call PW-1 also

reached there. The appellant was accompanied by Ravi Dutt and

Anand; all the accused persons were known to him. Appellant gave

knife blows to PW-2 on his stomach, thigh and on his waist; he suffered

injuries; they were both removed to the hospital.

4 It was on this statement that the present FIR No.146/1994 was

registered. Statement of the second injured Sushil (PW-2) was also

recorded. Their MLCs Ex.PW-6/A and Ex.PW-6/B were proved

through the technician of the AIIMS hospital. MLC of PW-2 (Sushil)

was proved as Ex.PW-6/A. Injuries noted on his person read as under:

1. Deep Clean incised wound 1" long at back in midline at T6 - T7 level

2.Other superficial clean incised wound 1-1/2 long at 10th -11th rib level at L posterior axillary line.

3. 1" long clean incised wound at R thigh medial aspect 2" below inguinal ligament.

4. ½" long clean incised wound at abdomen just above medial aspect of inguinal ligament.

They were opined as grievous and sharp.

5 This opinion on the injuries of PW-2 were given by Dr.T. Milo, a

doctor from the AIIMS hospital who had been summoned pursuant to an

application filed by the prosecution under Section 311 of the Cr. P.C.

Ex.PW-6/B is the MLC of Jitender. His injuries were simple in nature.

The CFSL report was taken on record as Ex.PX. The blood stained

knife had been sent for opinion; it could not opine as to whether the

blood group on the knife was of human or of animal origin; however

this report was relied upon by the trial judge to hold that the cut mark on

the shirt of PW-2 (Sushil) were probably caused by this knife. Santosh

Singh (PW-5) was also examined by the prosecution; he was projected

as an eye-witness. Trial court has, however, disbelieved his version.

6 On the basis of the aforenoted evidence collected by the

prosecution, the accused was convicted. The other two accused persons

namely Ravi Dutt and Anand who had been charged under Sections

307/34 IPC had however, been acquitted.

7 In the statement of accused recorded under Section 313 Cr. P.C.

he pleaded innocence. It was stated that this is a false case; parties were

inimical towards each other and this was the reason that they have been

falsely roped in.

8 In defence two witnesses were produced; they were neighbors

living in the same vicinity. Both have in the same tone deposed that

when they had reached the spot they saw the injured i.e. PW-1 and PW-

2 bleeding and lying on the ground; the injured had disclosed that

somebody had hit them but since it was dark they could not recognize

that man. This is the version of DW-1 (Amrik Singh). DW-2 (Sugriv)

has stated that when PW-1 had seen Ashok and Ravi Dutt at the spot and

they started abusing them and had caused these injuries upon them.

9 On behalf of the appellant, arguments have been addressed in

detail by Ms.Seema Gulati, Advocate. It is pointed out that the incident

had allegedly occurred at 7.30 p.m. but the FIR had been registered at

10.40 p.m. i.e. after an unexplained delay of three hours. Attention has

been drawn to DD No.43B. Submission being that this was recorded at

8.05 p.m. at which time it was noted that quarrel was going on. It is

pointed out that the trial judge has rightly noted that PW-5 was not a

reliable witness and was not present at the spot. Further submission

being that the defence had moved an application under Section 311

Cr.P.C. to recall PW-5 as PW-5 in his deposition had admitted that he

had given a false statement on oath in court but this application of the

appellant was dismissed by the Sessions Judge and thereafter by the

High Court. Further submission in this context being that the PW-5 was

the only independent witness to the recovery of the weapon of offence

i.e. the knife and his version having been disbelieved in toto; the

recovery of the knife is also liable to be disbelieved. It is pointed out

that the MLCs Ex.PW-6/A and Ex.PW-6/B have not been proved as per

the rules of evidence. Even in the questionnaire under Section 313

Cr.P.C., question no.15 addressed to the accused speaks of

Dr.M.S.Rawat where as Mr.M.S.Rawat was only a technician; in fact

the case put to the appellant in his statement under Section 313 Cr.P.C.

is opposed to the version of the prosecution. On all counts the

investigation is shoddy; admittedly no blood was lifted either from the

spot or from the house where the injured had first gone before going to

the hospital because as per their versions they were bleeding injuries.

The seizure memo Ex.5/B of the knife has depicted a clean knife having

been seized but when the same weapon was sent to CFSL, the CFSL had

noted that it was blood stained. It is pointed out that the accused and the

injured are neighbours living in the same vicinity; they are second

cousins having common ancestors; this is a case of false implication as

the parties are embroiled in a family dispute over property and this

incident has been used by the complainant party to falsely implicate the

accused. It is submitted that not only in the cross-examination of the

witnesses of the prosecution i.e. the suggestions given to PW-1 and PW-

2 but also the defence witnesses of the appellant have created a dent in

the version of the prosecution. Attention has also been drawn to the

MLC of the appellant; submission being that he had also been injured in

the incident. On all accounts appellant is entitled to a benefit of doubt

and a consequent acquittal.

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

is submitted that does the impugned order suffer from any infirmity.

Not only are the versions of PW-1 and PW-2 coherent and consistent but

their oral testimony in fact corroborates the medical evidence which

emanates in Ex.PW-6/A and Ex.PW-6/B.

11 Arguments have been heard and record has been perused.

12 PW-1 is the star witness of the prosecution. He has deposed that

on 11.06.1994 he had gone to visit his grandmother and on his way back

while he was near Punia Pooja Sthan located near the chopal of the

village, he saw appellant Ashok coming towards him; he started abusing

him; thereupon he stabbed him with a knife; he suffered injuries on his

left hand as also on his left shoulder; the third injury was inflicted on his

head. His brother PW-2 who was coming from the opposite directions

was also attacked by Ashok and his two accomplices; all were known to

PW-1. Appellant gave knife blows to PW-2 who suffered injuries on his

stomach, thigh and waist. In his cross-examination it was admitted that

accused and PW-1 have common ancestors; the co-accused Anand was

living in their neighbourhood. He admitted that he had not given the role

of Anand in his first statement (Ex.PW-1/A) as he was upset and that is

why he could not give the details of the occurrence. He admitted that

prior to this incident, Ashok and Ravi Dutt who were closely related to

his father and had had a quarrel with him over throwing of garbage near

the drain opposite to their houses. He admitted that he was discharged

from the hospital in the night whereas his brother PW-2 was discharged

on the following day. He was conscious when he made his first

statement. He denied the suggestion that the accused persons were going

to their uncle Udai Raj to complain about an earlier incident of quarrel

at 05:30 PM between the parties.

13 The MLC of PW-1 has been proved as Ex.PW-6/B. Injuries were

all simple. Admittedly, PW-1 was discharged from the hospital on the

same day.

14 PW-2 Sushil Tyagi, the brother of PW-1 had received grievous

injuries. He has on oath corroborated the version of PW-1. He admitted

that he had seen Ashok attacking his brother; PW-2 was also coming

from Bhoomie Pooja Sthan at that time; Ashok and Ravi Dutt were also

present. All the accused persons had threatened to finish off PW-1 and

PW-2. Appellant Ashok had attacked PW-2 with a knife and given him

knife blows; his brother was also injured. In his lengthy cross-

examination, PW-2 stuck to his stand. He admitted that earlier also, hot

exchange of words taken place and 15 minutes before the incident, there

was a quarrel on account of the waste which was being thrown in the

nali opposite their houses. He reiterated that he remained in the hospital

for 2-3 days.

15 The MLC (Ex.PW-6/A) of PW-2 has confirmed the fact that he

has suffered grievous sharp injuries. Nature of injuries have been

detailed supra. His X-ray report (Ex.PW-9/DA) showed no fracture.

However record does not establish the version of PW-2 that he remained

in the hospital for 2-3 days; the fact that his statement was recorded in

terms of Ex.PW-7/DB on the same night is clear from the version of

PW-7, the Investigating Officer; he was fit for statement within the next

1 hour of the incident as the Investigating Officer PW-7 had recorded

statements of both PW-1 and PW-2 in the hospital and PW-7 has

admitted that he remained in the hospital for 1 hour.

16 The weapon of offence i.e. the knife was seized vide memo

Ex.PW-5/B. Its sketch (Ex.PW-5/A) was prepared. These documents

were attested by the alleged independent witness Santosh Singh

examined as PW-5. His version has been disbelieved. It was rightly so

as the name of PW-5 did not find mention in the first statement (Ex.PW-

1/A) recorded of the victim; the fact that he has been introduced as a

witness later on had created a suspicion in the mind of the trial Court

which had led the Court to disbelieve his statement. The seizure memo

and the sketch memo of the knife have both been attested by this witness

who has been disbelieved; little reliance can be placed on these

documents as the other attesting witness to these documents i.e.

constable Shankar Lal has also not been examined. This knife was also

not sent to the doctor for expert opinion i.e. as to whether it was

responsible for causing the injuries upon the persons of PW-1 or PW-2.

This is a lapse on the part of the investigating agency; if the knife has

been seized, there was no explanation why it was not sent to the doctor

for opinion. Recovery of the knife has thus necessarily to be disbelieved.

17 Record further shows that as per the versions of PW-1 and PW-2

15 minutes prior to this incident, a quarrel had taken place between the

parties over throwing of waste/garbage in the gali; parties were living in

the neighbourhood; they were cousins hailing from a common ancestor.

The fact that quarrel had taken place 15 minutes prior to this incident

over throwing of garbage was probably the reason which had led to this

occurrence. However, it appears to have taken place on the spur of the

moment; it was not a pre-planned act on the part of the appellant as is

evident from the fact that both PW-1 and PW-2 were coming from

opposite directions when appellant Ashok accosted them; this was near

the Punia Pooja Sthan; neither knew of each others' plan of coming or

going to the spot. In these circumstances, the argument of the learned

counsel for the appellant that there was no premeditation or pre-design

by the appellant to attack the victim has force. All this had happened on

impulse and on the spur of the moment when the parties came face to

face after the earlier incident which had occurred just 15 minutes prior

to this incident. The earlier incident was also on a trivial issue i.e.

throwing of garbage in the gali as the parties were living in the same

neighbourhood.

18 Medical record of PW-1 shows that he has suffered simple

injuries. The injuries suffered by PW-2 were grievous. The most

grievous of these four injuries is an incised wound which is 1 inch long

at the back in the midline 6-7 level. Apart from this injury, there is a 1

inch superficial injury between 10th-11th rib level. There is also ½ inch

long incised wound on the abdomen. The length of these injuries do not

suggest that the accused had the intention to kill the victim; the oral

versions of PW-1 and PW-2 coupled with this medical record do not

establish the ingredients of Section 307 of the IPC which necessary

entails that the accused must have the knowledge that by his act, he

could have even caused the death of the victim. This is not so in the

instant case.

19 In 2003 (1) Crimes 314 (SC) Lallan Rai and Others Vs. State of

Bihar where the appellant had been convicted under Section 307 of the

IPC but keeping in view the nature of injuries report as also the versions

of the witnesses in that case although grievous injuries had been

suffered by the victim, the Apex Court had held that conviction under

Section 307 of the IPC was not proper. The conviction in that case had

been altered to one under Section 326 of the IPC.

20 In AIR 1993 SC 1256 Pashora Singh and Another Vs. State of

Punjab, the Supreme Court had an occasion to deal with a conviction

which had been suffered by the appellants under Sections 307/34 of the

IPC. There were two injured in that case; one injured had suffered two

gandasa blows and the second injured had suffered one gandasa blow.

One of these injuries was on the head. It was also a case of earlier

grievance between the parties. The conviction was altered from Section

307 to one under Section 326 of the IPC.

21 Accordingly, the appellant is convicted under Section 326 of the

IPC.

22 The nominal roll of the appellant shows that he has suffered

incarceration of 7 months. Keeping in view the fact that the offence

relates to the year 1994 i.e. almost two decades old, the appellant having

no other criminal background; having suffered agony of trial for almost

20 years and the appellant also not having abused the process of bail

since his release; his conduct in jail also being satisfactory during the

period when he was incarcerated, it would be in the fitness of things to

modify the sentence. Accordingly while sustaining the conviction of the

appellant under Section 326 of the IPC, he is sentenced to undergo RI

for a period of 1 year. The fine of Rs.1,000/- imposed under Section

326 of the IPC by the Sessions Judge shall remain unaltered. Bail bonds

of the appellant are cancelled. Surety discharged. The appellant be taken

into custody to serve his remaining sentence.

23     Appeal disposed off.




                                                INDERMEET KAUR, J
MARCH 05, 2014
Ndn/A