Delhi High Court
State (Govt. Of Nct Of Delhi) vs Varun Kumar on 14 March, 2017
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P.No.279/2016 & Crl.M.A.No.8362/2016
% Date of decision : 14th March, 2017
STATE (GOVT. OF NCT OF DELHI) ..... Petitioner
Through: Ms. Aashaa Tiwari, APP for
the State.
versus
VARUN KUMAR ..... Respondent
Through: Mr. S.N. Parashar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
GITA MITTAL, J.
Crl.M.A.No.8362/2016
1. Heard.
2. We are satisfied that the State was prevented by sufficient
cause from bringing this leave petition within the statutory period
of limitation. Delay in filing the leave petition is condoned.
This application is allowed.
CRL.L.P.No.279/2016
3. We have heard Ms. Aashaa Tiwari, learned APP for the
petitioner-State and MR. S.N. Parashar, learned counsel for the
respondent in this petition under Section 378(3) of the Code of
Criminal Procedure, 1973 filed by the State seeking leave to appeal
against the judgment dated 11th December, 2015 whereby the trial
court had convicted the respondent for commission of an offence
under Section 308 of the IPC for 3 years and acquitted him for
commission of an offence under Section 307 IPC in SC No.112/14
arising out of FIR No. 18/13 registered by Police Station Chanakya
Puri.
4. The State has sought enhancement of the consequential order
of sentence dated 18th December, 2015 imposed upon the
respondent whereby he was released on probation of good conduct
on furnishing a personal bond in the sum of `10,000/- with one
surety in the like amount for a period of three years and payment of
compensation of `20,000/- to the victim.
5. So far as the circumstances in which the court has acquitted
the respondent of the charge under Section 307 IPC is concerned,
we find that the same have been considered in para 30 of the
impugned judgment which reads thus :
"30. In the case in hand, it has categorically
come on record from the depositions of
prosecution witnesses that on 24.01.2013 at
about 09.00 PM at footpath in front of Masjid
Sanjay Camp within the jurisdiction of PS
Chankyapuri accused Varun had caused injuries
on the person of Nand Kishore with a chopper
vide Ex.P1. It has also come on record that on
24.01.2013, on receipt of DD no.34A, which is
Ex.PW2/A, PW2 SI Ramvir Singh along with HC
Anil went at RML Hospital, where injured was
declared 'unfit' for statement. PW14 Babloo
[worker of victim] being eye witness of the
incident and upon his statement the present case
was registered. He has correctly identified the
accused as culprit and he testified that accused
caused injuries to victim Nand Kishore with
choppar, vide his statement Ex.PW14/A and site
plan as Ex.PW14/B. Moreover, PW1 Nand
Kishore, victim in this case has also
categorically stated that on 24.01.2013 accused
Varun Kumar attacked upon him with a choppar
blow on his face which struck him on the right
side. He has also testified that he has a meat
shop of fish on the patri near Masjid and he had
to take Rs.350/- from the accused Varun Kumar.
On this issue a quarrel took place with accused.
Other material witnesses i.e. PW4 Deena
Shankar Singh and PW5 Fazrool Rehman have
also supported the prosecution case. Besides,
PW15 Dr. Dinesh had examined victim Nand
Kishor vide MLC no.E/12543/13 vide Ex.PW13/A
on 24.01.03 and after perusal of the record he
had mentioned that the final opinion as to the
nature of injuries to be given by neurosurgeon.
His writing is at point B on MLC Ex.PW12/A and
signed the same at point C. As per record the
nature of injuries is grievous as given by Dr.
Manish Rawat, neurosurgeon. As per record on
the MLC it is written "alcoholic breath present".
As per records when the patient arrived in the
hospital he was unfit for statement. Keeping in
mind the observations made in above referred
judgment, I am of the view that act done by
accused should be scrutinized carefully and
taking resort to judgment Ansarudin v. State of
Madhya Pradesh, (1997)2 Crimes 157 (MP)
referred above, it is not necessary that injury,
capable of causing death, should have been
inflicted. What is material to attract, the
provisions of section 307 is the guilty intention or
knowledge with which the all was done,
irrespective of its result. The intention and
knowledge are the matters of inference from
totality of circumstances and cannot be measured
merely from the results. Having perused the
testimonies of all the material witnesses i.e. PW1
Nand Kishor, who happens to be victim in this
case, it has come on record that there was a
dispute over money i.e. Rs.350/-, which he had to
take from accused and upon this issue a quarrel
had taken place on 24.01.2013. Simultaneously,
it has also come on record as per MLC of injured
PW13/A that he was having alcoholic breath.
Further on perusal of the testimonies of PW4
Deena Shankar Singh and PW5 Fazrool Rehman
it has come on record that they have not deposed
on material aspects. Hence, they were cross
examined by the learned APP. They have denied
that in their presence accused had caused
injuries to the victim. In light of these facts and
circumstances of the case, I am of the view that
prosecution has miserably failed to prove on
record that accused had intention to kill precisely
for the reasons that accused caused sharp
injuries to the victim on grave and sudden
provocation with chopper blow Ex.P1, under
such circumstances that if he thereby caused
death he would be guilty of culpable homicide
not amounting to murder. Thus, prosecution has
successfully proved its case beyond reasonable
doubt for the offence u/s 308 IPC.
Accordingly, accused Varun Kumar is
convicted for the offence 308 IPC; and
I absolve accused Varun Kumar for the offence
u/s 307 IPC."
6. Nothing has been pointed out by the petitioner which would
enable us to take a view different from that taken by the trial court.
7. The respondent was aged barely about 18 years as on 18 th
December, 2015. The trial court has noted that he was looking
after old parents and two young sisters. The respondent was also
not a prior convict. In fact, there is no criminal case ever registered
against him.
8. It is also not disputed that even after the passing of the order
dated 18th December, 2015, the respondent has not been implicated
in any other case.
9. It is also necessary to note that the respondent has since
deposited the amount of compensation awarded by the trial court
by the order dated 18th December, 2015.
10. Mr. S.N. Parashar, Advocate has handed over a copy of
receipt No.A-433259 dated 21st December, 2015 acknowledging
receipt of the amount of `20,000/- being the compensation awarded
by the trial court by the order dated 18th December, 2015. It would,
therefore, appear that the respondent has complied with the order
on sentence as well.
11. It is also to be noted that he had submitted the personal bond
of good conduct as directed by the trial court and the period of the
bond of 3 years has since expired.
12. In view thereof, we find no merit at all in this petition which
is hereby dismissed.
GITA MITTAL, J
ANU MALHOTRA, J
MARCH 14, 2017/kr
