Asad Siddiqui vs State
2015 Latest Caselaw 4433 Del

$~24
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     Crl. A. No. 421/2011
                                                        Decided on 29th May, 2015

      ASAD SIDDIQUI                                            ..... Appellant

                           Through:      Mr. K.K. Sud, Sr. Adv. with Mr.
                                         Jayant K. Sud, Ms. Asha and Mr.
                                         Arjun Drona, Advs.

                           versus

      STATE                                                    ..... Respondent

                           Through:      Mr. Yogesh Verma, APP for State
                                         with SI Kishor Prasad, P.S. Sangam
                                         Vihar.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Appellant has been convicted under Section 307 IPC and sentenced to

undergo rigorous imprisonment for a period of 3 years with fine of `5,000/-

and in default of payment of fine to undergo rigorous imprisonment for a

period of three months, by the trial court.

2. Aggrieved by his conviction and also the sentence handed down by

the trial court, appellant has preferred this appeal.

3. The only argument canvassed by the learned senior counsel for the

appellant is that trial court has erred in convicting the appellant under

Section 307 IPC even though the ingredients of the said offence are not

attracted in the facts and circumstances of this case.

4. It is contended that MLC Ex. PW12/A of PW2 Anand Gupta has been

proved by PW12 Dr. Sugandha Arya by identifying the signatures of Dr.

Amit Kumar, who had prepared the same. Dr. Amit Kumar did not step in

the witness box to prove the opinion given by him. Even the Radiologist

who had given the report that there was fracture in 4 th metacarpal shaft of

left hand of PW2 Anand Gupta was not produced in the witness box.

Instead radiological report was proved by PW13 Dr. Yatish Aggarwal as Ex.

PW13/B. Since the doctors, who had given the report/opinion, were not

produced, the injury of PW2 Anand Gupta has to be taken as „simple‟. Other

injured PW1 Vishal Gupta had sustained only simple injury, as per the MLC

Ex. PW15/A on his parietal region by a blunt object, that is, an iron punch,

which is not a dangerous weapon. He further contends that injury on the

person of PW2 Anand Gupta was allegedly caused by a small sword which

was not even recovered. It cannot be said that injury was caused by a

dangerous weapon. No evidence was led before the trial court to prove that

weapon of offence was a dangerous weapon as dimension of the alleged

sword was not given. It was also not proved that the small sword allegedly

used was having sharp edges. There is nothing to suggest that weapon used

was capable of causing death of a person.

5. Further that, as per PW1 Vishal Gupta and PW2 Anand Gupta,

appellant had taken out a small sword from his bag and tried to hit PW1

Vishal Gupta when PW2 Anand Gupta caught hold of it resulting in injury

to him in his palm. It is not the case that repeated blows were given. The

nature of injuries, sustained by PW1 Vishal Gupta and PW2 Anand Gupta

coupled with the circumstances in which same were inflicted on non-vital

part of the body, makes it clear that appellant neither had an intention to

cause death of PW1 or PW2 nor had knowledge that by his such acts he

would have caused their death. Reliance has been placed on Chaman Lal vs.

State MANU/DE/0470/2010, Narender Kumar Vs. State of Delhi,

MANU/DE/0246/1980, Ashok Kumar vs. State, 1994 JCC 522 and

Rajesh and Ors. Vs. State MANU/DE/0620/2010.

6. Prosecution case, as unfolded, is that appellant along with his

accomplice Tarun Sharma came to the shop of PW1 and PW2 on 11 th

March, 2005 at about 2:45 PM and started abusing PW1. They also gave

fist and leg blows to him. Thereafter, appellant gave blows on the face and

head of PW1 by an iron punch. On hearing cries of PW1, his father PW2

arrived there and caught hold of appellant from behind. At that stage,

appellant took out a small sword from his bag and attempted a blow on his

neck but PW2 caught hold of the sword from both his hands resulting

injuries in both the palms of PW2. Thereafter, appellant along with his

accomplice ran away.

7. A perusal of MLC Ex. PW15/A of PW1 indicates that he had

sustained CLW measuring 2 X 1.5 cm on left parietal region besides

swelling around the left eye and bruises on the face. Doctor has opined his

injuries as "simple" caused by a blunt object. A perusal of MLC Ex.

PW12/A of PW2 indicates that he had sustained CLW 10 X 1 cm on his

right palm and left thumb. His injuries have been opined as "grievous". It

has also been mentioned in Ex. PW12/A that there was a fracture in 4th

metacarpal shaft of left hand. No doubt, it is true that doctor, who had

opined the injuries of PW2 Anand Gupta to be "grievous", was not produced

in the witness box and the MLC has been proved by PW12 Dr. Sugandha

Arya by identifying the signatures of Dr. Amit Kumar, who is author of

MLC Ex. PW12/A, but still the injuries of PW2 Anand Gupta cannot be

taken as "simple" in this case since prosecution has succeeded in proving

that PW2 had suffered fracture in his left hand. PW12 Dr. Sugandha Arya

has deposed that the nature of injury was "grievous" as there was fracture in

4th metacarpal shaft of the left hand. PW13 Dr. Yatish Aggarwal, Senior

Specialist, Department of Radiology has categorically deposed that fracture

of 4th metacarpal shaft was seen from a perusal of x-ray plate no. 1085 dated

11th March, 2005 regarding left hand of PW2 Anand Gupta. He has not only

proved the X-ray report by identifying the handwriting and signatures of the

author of report but has also perused the X-ray plate in the court and has

given his personal opinion in this regard, which is sufficient to prove that

PW2 had sustained a fracture in his left hand.

8. Section 320 IPC defines "grievous hurt". Relevant it would be to

refer to and rely upon the Section 320 IPC, which reads as under:

"Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

(First) -- Emasculation.

(Secondly) --Permanent privation of the sight of either eye.

(Thirdly) -- Permanent privation of the hearing of either ear,

(Fourthly) --Privation of any member or joint.

(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.

(Sixthly) -- Permanent disfiguration of the head or face.

(Seventhly) --Fracture or dislocation of a bone or tooth.

(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

9. A perusal of aforesaid Clause seventhly of Section 320 IPC shows

that fracture or dislocation of a bone or tooth, would amount to "grievous

hurt". Thus, prosecution has succeeded in proving that appellant had caused

"grievous hurt" to PW2. However, prosecution has failed to prove that

"grievous hurt" was caused by using a „dangerous weapon‟. As per the FIR,

a small sword was used. Dimensions of the „small sword‟ have not been

given in the FIR nor such weapon was recovered nor any evidence is there

to prove that weapon used was a dangerous one. The injury of the PW2

Anand Gupta has been opined as "grievous" only on account of fracture

suffered by him in 4th metacarpal shaft of the left hand and for causing such

injury, it is not necessary to use a dangerous weapon. Thus, in my view,

ingredients of offence under Section 325 IPC are attracted and not of

Section 307 IPC, in the peculiar facts and circumstances of this case.

10. Section 307 IPC envisages that whoever does any act with such

intention or knowledge, and under such circumstances that, if he by that act

caused death, he would be guilty of murder, shall be punished with

imprisonment of either description for a term which may extend to ten years,

and shall also be liable to fine; and if hurt is caused to any person by such

act, the offender shall be liable either to, or to such punishment as is

hereinbefore mentioned. It is, thus, clear that to bring home the guilt of an

offender within the ambit and scope of Section 307 IPC, prosecution has to

prove that offender had intention to cause murder and had knowledge that

by his such act he could cause death of the person to whom he attacks.

Intention and knowledge has to be gathered from the nature of weapon used,

the number of the injuries inflicted, manner in which the weapon was used,

seriousness of the resultant injury, severity of the blow, part of the body

where injuries are inflicted and antecedent and subsequent conduct of the

accused.

11. In Rajesh (supra), a Division Bench of this Court has held as under:

"To bring an offence within the ambit of Section 307 IPC the prosecution must establish actus reus and mens rea. The requisite intention be of any of the kinds referred to in Section 300 IPC and that knowledge being the alternative to intention in clause "fourthly" of Section 300, if established, it too would be sufficient. How do we gather the intention? It has to be gathered from the nature of weapon used, the number of the injuries inflicted, manner in which the weapon was used, seriousness of the resultant injury, severity of the blow, part of the body where injuries are inflicted and antecedent and subsequent conduct of the accused"

12. In Chaman Lal (supra), a Division Bench of this Court has held as

under:

"It is settled law that to establish the charge punishable under Section 307 IPC it has to be established that the act of the accused was life threatening. It has to be proved that if by the act death would have resulted the offence would be that of murder, only then, upon the victim surviving is the offence of attempt to murder made out."

13. Now coming back to the facts of this case, it is apparent that repeated

blows were not given on the vital part of the body of PW2 Anand Gupta,

who has suffered injuries on his left hand only. PW2 sustained fracture in

left hand because of which his injuries have been opined as "grievous". As

regards weapon of offence is concerned, it was not recovered, inasmuch as,

no evidence is there to prove that it could have caused death of PW2. PW1

Vishal Gupta has sustained simple injury by blunt object as is evident from

the MLC Ex. PW15/A, inasmuch as, he was discharged from the hospital

after the medical aid was provided to him. From the nature of injuries

coupled with the circumstances as narrated above, ingredients of offence

under Section 307 IPC are not attracted.

14. For the foregoing reasons, appellant is acquitted under Section 307

IPC and convicted under Section 325 IPC.

15. Appellant was about 22 years of age at the time of incident. He has

no previous criminal record. During the trial as also the pendency of the

appeal, appellant has not involved himself in any other crime. During the

course of hearing it has surfaced that father of the appellant has died last

year due to the cancer. Wife of appellant is ailing from cancer. Appellant

has responsibility of looking after his mother as well. Appellant has suffered

incarceration for more than three months. Keeping in mind the totality of

circumstances, appellant is sentenced to the period already undergone by

him besides fine `30,000/- and in default of payment of fine to undergo

simple imprisonment for one year. Fine be deposited within six weeks. Out

of the fine so deposited, `25,000/- be released to PW2 Anand Gupta.

16. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

MAY 29, 2015 rb