Mohd.Harun vs State Nct Of Delhi
2017 Latest Caselaw 3492 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


    +    Crl.Appeal No.774/2001

                                           Date of Decision: 21st July, 2017

         MOHD.HARUN                                           ..... Appellants

                         Through       Mr.Mir Akhtar Hussain,
                                       Mr.Amit Alok,
                                       Mr.Pragyesh Nigam, Advocates.

                                  versus

         STATE NCT OF DELHI                                .....    Respondent
                         Through       Mr.Panna Lal Sharma,
                                       APP for the State.

         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present appeal has been filed under Section 374

Cr.P.C. against judgment dated 20.09.2001 and order on

sentence dated 25.09.2001 whereby the appellant has been

found guilty and convicted for offences punishable under

Section 307 and 324 IPC and sentenced to undergo rigorous

imprisonment for two years and to pay a fine of Rs.4,500/- in

default to undergo rigorous imprisonment for one month under

Crl.Appeal No.774/2001 Page1 of 12 Section 307 IPC and to undergo rigorous imprisonment for six

months and to pay a fine of Rs.500/-, in default to payment of

fine, to undergo rigorous imprisonment for one month under

Section 324 IPC.

2. The facts of the case, as per the case of the prosecution,

in a nutshell are that Rishi Sachdeva (PW-1) and Vishal

Sachdeva (PW-3) are real brothers. On 15.02.1997 at about 5

P.M., PW-1 Rishi Sachdeva had gone to one Badshah (PW2)

who was having his thiya in gali no.24. The appellant/accused

came there and enquired from PW-1 as to why he had taken

money from his brother. It was denied by PW-1 and he asked

the appellant to get this fact confirmed from Sahid. Sahid also

corroborated the version of PW-1. Thereafter, the appellant

slapped Sahid. The appellant/accused started giving beatings to

PW-1 after which PW-1 started running. When PW-1 eached

near the hotel of Shafiq, his brother Vishal @ Kamal came

there and tried to intervene. The appellant/accused lifted a

danda from the hotel and assaulted Kamal. Thereafter he

whippd out a knife from his back pocket and stabbed Kamal on

Crl.Appeal No.774/2001 Page2 of 12 the right side of his chest. When the appellant/accused wanted

to give another blow to Kamal, he caught hold of the hand of

the appellant. PW-1 then gave a danda blow on the head of the

appellant/accused. Local people who had gathered there saved

PW-1 and PW-3. PW-1 and PW-3 were removed to hospital,

FIR was recorded and after completion of investigation,

challan was filed.

3. Vide order dated 06.09.1999, charge was framed against

the accused under Secitons 307/324 IPC to which he pleaded

not guilty and claimed trial.

4. The prosecution examined eleven witnesses in support

of their case i.e. PW-1 Rishi Sachdeva, PW-2 Badshah @

Suresh Kumar, PW-3 Vishal Sachdeva, PW-4 Kirti Ram

Uniyai, PW-5 Syed Ahmed, PW-6 HC Anand Prakash, PW-7

Ashok Kumar, PW-8 Const.Ghanshyam, PW-9 Const.Vee Das,

PW-10 HC Mohd.Naeem and PW-11 SI Chanderrup Singh.

Statement of accused under Section 313 Cr.P.C. was recorded

and he examined DW-1 Nasiruddin in his defence.

5. In support of the appeal, the appellant/accused has taken

Crl.Appeal No.774/2001 Page3 of 12 the grounds that there was no legal evidence in the case against

the appellant justifying his convication; that the learned ASJ has

observed in the impugned judgment that 'had brother of Harun

told him that Rishi had taken the money from him peacefully, it

would not have given a cause to Harun to assault Rishi', that the

learned ASJ has not appreciated this fact that the prosecution

agency has failed to produce the doctors who had prepared the

MLC and x-ray report; that non examination of the concerned

doctor inspite of the fact that PW-4 had furnished the addresses

of the concerned doctors had caused prejudiced to the right of

the appellant; that the learned ASJ has not appreciated this fact

that PW-2 and PW-5 who are independent public witnesses have

not supported the prosecution version, that the learned ASJ has

not considered this fact while passing the impugned order that

no offence punishable under Section 307 IPC is made out as

PW-1 was discharged from the hospital after some time on the

same day; that the learned ASJ has not considered this fact while

passing the impugned order that PW-1 has admitted the presence

of some independent persons at the spot, but none of them was

Crl.Appeal No.774/2001 Page4 of 12 produced as a witness by the prosecution before the Trial Court;

that the learned ASJ has not considered this fact that the danda

allegedly impounded by the police was used by the injured Rishi

Sachdeva for inflicting head injury to the appellant and the same

was not recovered at the instance of the appellant, as such

recovery of the danda cannot be read against the appellant in any

manner whatsoever; that the learned ASJ has not appreciated

this fact that PW-11 SI Chanderrup Singh has deposed before

the learned Trial Court that 'the accused had disclosed about the

knife used by him in the occurrence, but the same could not be

recovered' as per prosecution case, the police reached at the spot

just after the incident and removed the injured persons to the

hospital including the appellant, meaning thereby that the

appellant was apprehended from the spot but the recovery of

knife was not effected from his possession; that the learned ASJ

has not appreciated this fact that the appellant is not a previous

convict, he is a married person having three minor children to

support, he is the sole bread earner of family comprising five

sisters and two brothers; he is facing the agony of trial for the

Crl.Appeal No.774/2001 Page5 of 12 last so many years.

6. Per contra, learned Additional Public Prosecutor for the

State has vehemently opposed the aforesaid contentions raised

on behalf of the appellant and submitted that the judgment of

conviction and order on sentence as passed by learned

Additional Sessions Judge do not suffer from any irregularity or

illegalities and is passed with a reasoned order, therefore, the

same is not liable to be interfered with.

7. Arguments advanced by the learned counsel for the

appellant as well as learned APP for the State were heard.

8. PW1 Rishi Sachdeva, who is an independent injured

witness, has deposed that on 15.02.1997 at about 5 PM, he had

gone to the dhobi, PW-2 and he was getting his clothes ironed.

In the meantime, the appellant/accused came and enquired from

him as to whether he had taken money from his brother. He told

the appellant that he had not taken any money, but his brother

had on his own given money to him. He told the appellant that

if he does not believe him, he was at liberty to get this fact

confirmed from Sahid who runs a VCR shop in Gali No.24. The

Crl.Appeal No.774/2001 Page6 of 12 appellant/accused then took him to Sahid. Harun enquired from

Sahid as to whether the money had been taken forcibly from his

brother or not, to which he replied that PW-1 had not taken the

money forcibly but it was given voluntarily by his brother. He

slapped Sahid and also started giving beatings to PW-1 on which

he started running. In the meantime, his elder brother Vishal

Sachdeva came there. His brother wanted to intervene. PW-1

was lying on road, his brother tried to lift him, when accused

Harun lifted a danda and hit his brother Vishal @ Kamal on his

head. He then threw the danda and whipped out a knife from the

back pocket of his pant and stabbed his brother on the right side

of the chest. When he was trying to give another blow to the

brother of PW-1, PW-1 caught hold of the hands of the

appellant/accused. In the mean time, PW-1 lifted the danda and

gave blow on the head of accused Harun. Harun then told him

that he will not spare PW-1. He was trying to give a knife blow,

but people intervened and saved him. Thereafter, accused Harun

lifted the danda and started beating PW-1. He sustained injuries

on his right shoulder and hand. This witness correctly identified

Crl.Appeal No.774/2001 Page7 of 12 the accused being the person who had inflicted injuries upon

him.

9. PW-3 Vishal Sachdeva @ Kamal has corroborated the

testimony of PW-1. PW-3 has deposed that on 15.02.1997 at

about 5.15 P.M., he was coming from the side of Gali No.26.

When he was near the hotel of Shafiq, he noticed that an

altercation was going on between Rishi and the

appellant/accussed Harun. When PW-3 tried to intervene,

accused Harun lifted a danda lying there and hit the same on his

head. Thereafter, accused threw the danda, took out a knife and

gave its blow on the right side of the chest of PW-3. Accused

tried to give another blow which PW-3 averted by catching hold

of his hand. As a result thereof, he had sustained injuries on his

left hand. In the meantime, his brother Rishi lifted the danda

and gave its blow on the head of Harun. He tried to move, but

after covering a distance of 10/12 steps, he had fallen and

become unconscious.

10. From the testimony of PW-1, it has been duly established

that on the day of incident, a quarrel between him and appellant

Crl.Appeal No.774/2001 Page8 of 12 had taken place. The appellant asked PW-1 as to why he had

not given back the money of his brother and when he confronted

with Sahid, appellant gave a slap to Sahid and then started

beating PW-1. It has also been established that PW-3 Vishal

Sachdeva @ Kamal came there and on seeing that his brother

PW-1 Rishi was being beaten by the appellant, he tried to

intervene. In the meanwhile, appellant picked up a danda and

gave a blow on the head of PW-3 Vishal. Thereafter, he took

out a knife and gave its blow on the right side of the chest of

PW-3 Vishal Sachdeva. Thereafter, the appellant gave beatings

to PW1 Rishi due to which he received injuries on his person.

As per the testimony of PW1, he is an eye witness and injured in

the incident.

11. PW3 Vishal Sachdeva is another injured witness who has

duly corroborated the testimony of his brother PW1 Rishi. PW3

has specifically deposed that on the day of incident when he had

reached gali no.24, he noticed that an altercation was going on

between his brother Rishi and appellant Harun. When he tried

to intervene, firstly the appellant gave a danda blow on his head

Crl.Appeal No.774/2001 Page9 of 12 and then gave the knife blow on the right side of his chest.

12. The testimony of PW1 Rishi and PW3 Vishal Sachdeva

has further been corroborated by medical evidence. MLC

Ex.PW4/1 of injured Vishal Sachdeva @ Kamal shows that he

received 2 cm incised wound on the latral aspect of chest wall,

incised wound on the left hand and 4 cm CLW the scalp. As per

the MLC, the injuries on the chest and left hand of injured

Vishal Sachdeva @ Kamal were caused by a sharp edged

weapon. As per MLC ExPW4/2 of the injured Rishi, he

received LCW over left finger and incised wound over left

thumb apart from abrasions. The medical evidence duly

corroborates that injury caused on the person of injured Vishal

was on his vital organ i.e. chest caused by a sharp edged

weapon. Further, it has been corroborated that the injury caused

on the person of injured Rishi was caused by a sharp edged

weapon.

13. The intention and knowledge of the appellant in

attempting to commit the murder of Vishal Sachdeva @ Kamal

is apparent from the facts that firstly he hit him on his head with

Crl.Appeal No.774/2001 Page10 of 12 a danda, then he took out a knife and gave its blow on his chest.

Being armed with a deadly weapon i.e. knife and causing injury

with the same, clearly brings the case of prosecution against the

appellant that he was having intention to commit the murder of

the injured and was having knowledge that by causing injuries

with knife would result into death of the injured. Therefore the

judgments relied upon by the learned counsel for the appellant in

the case Sumersinbh Umedsinh Rajput alias Sumersinh v.

State of Gujarat; (2007) 13 SCC 83, Shiksha, SanjeevTyagi

@ Chiddi Bose v. State; 208 (2014) DLT 282, Vikash

[email protected] Sonu & Anr. V. State NCT of Delhi 2014 (2)

JCC 996, Jagmohan @ Jagga v. State 2014 VI AD (Delhi) 47

& Rajvir & Anr. V. State 2005(1) JCC 239 do not come to the

aid of the appellant inasmuch as it has clearly been established

from the evidence that the injury on the person of Kamal were

caused by the appellant with intention and knowledge to commit

his murder.

14. In view of the totality of evidence discussed above, there

is no merit in the present appeal. Consequently, the judgment of

Crl.Appeal No.774/2001 Page11 of 12 conviction and order on sentence are accordingly upheld.

15. The appeal is accordingly dismissed.

                                                  (P.S.TEJI)
                                                   JUDGE
JULY 21, 2017
dd




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