Muslim Khan vs The State Of Delhi
2017 Latest Caselaw 2728 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                             Judgment delivered on : May 29, 2017

+       CRL.A. 846/2001
        MUSLIM KHAN
                                                              ..... Appellant
                            Through:    Mr. R.K. Sonakiya, Advocate


                            versus

        THE STATE OF DELHI
                                                               ..... Respondent

                            Through:    Mr. Panna Lal Sharma, Additional
                                        Public Prosecutor for the State

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

1. Aggrieved by the judgment of conviction dated 16th August,

2001 convicting the appellant finding him guilty under Section 307 of

the Indian Penal Code (hereinafter referred to as 'IPC') and order on

sentence dated 11th September 2001, whereby the appellant has been

sentenced to undergo rigorous imprisonment for three years with fine

of Rs.1,500/-, and in default of fine, to further undergo simple

imprisonment for one month, the appellant has preferred the present

appeal.

2. The facts giving rise to the present appeal are within the narrow

compass. It emerges from the record that on 3rd October, 1999, when

the injured Smt.Sheela Devi was with her husband Sh.Dev Dutt

Sharma at home, at about 8.45 p.m., their neighbour Muslim Khan

started abusing her husband and asked him to come out so that he

could teach him a lesson. The injured Sheela Devi did not let her

husband go out instead went out herself and her neighbour Sharda and

Ram Murthi were also stated to be there with her. Afterwards,

Mulsim Khan, who had an Ustra in his hand, came to the injured and

hit her on the left side of her stomach as a result of which blood

started oozing and Smt.Sheela Devi was taken to the hospital by her

husband and neighbour. It appears from the record that a case under

Section 324 IPC was registered. Statement of witnesses was recorded;

site plan was prepared and MLC was procured. The doctor opined the

injuries to be grievous in nature and were inflicted with a sharp

weapon. Thereafter, Section 307 of the IPC was added; accused was

arrested; disclosure statement was recorded in pursuant whereof,

recovery of weapon of offence i.e. Ustra was made which was kept in

pulanda and sealed with the seal of CSR. After completion of

investigation, the charge sheet under Section 307 of IPC was filed

against the appellant and to which he pleaded not guilty and claimed

trial.

3. To prove the charges against the appellant, the prosecution

examined 10 witnesses. They are; Smt. Sheela Devi (PW-1); Dev Dutt

Sharma (PW-2); Smt. Sharda Devi (PW-3); Smt. Ram Murti (PW-4);

Dr. M.A. Siddiqui (PW-5); Bharat Singh (PW-6); Hukam Singh (PW-

7); Constable Krishan Kumar (PW-8), Head Constable Satpal (PW-9);

and Sub-Inspector Chander Singh (PW-10).

4. Upon considering the facts, evidence led and the material on

record, the learned Additional Sessions Judge held the appellant guilty

for offence punishable under Sections 307 of IPC by impugned

judgment dated 16.08.2001, and vide order on sentence dated

11.09.2001 and the appellant was sentenced as indicated above.

Hence, the appellant has filed the instant appeal against the judgment

and order on sentence passed by learned Additional Sessions Judge.

During pendency of the present appeal, the sentence imposed upon the

appellant was suspended vide order dated 21.11.2001.

5. It is a matter of record that the counsel appearing on behalf of

the appellant was more interested in taking adjournments than to argue

the present appeal. Narration of proceedings of this court on different

dates when the appeal came up for hearing before this court on

different dates, i.e. on 07.08.2009, 26.02.2014, 29.05.2014,

03.03.2017, either none appeared on behalf of the appellant or took an

adjournment on one ground or the other. From the perusal of the order

sheet dated 10.03.2017, this court observes that in such like matters, it

is noticed that the routine is to file an appeal; apply for bail; be

enlarged on bail; and thereafter to become untraceable or to take

adjournments. Accordingly, arguments on behalf of the learned

Additional Public Prosecutor for the State were heard and appeal was

reserved for orders.

6. The main grounds of challenge are that the prosecution has

miserably failed to prove its case beyond reasonable doubts as

prosecution witnesses did not support its case. The testimony of PW 2

i.e. husband of the injured is unbelievable inasmuch as he in his

statement deposed that there was only ten per cent truth/reality in the

FIR and the case of the prosecution; he gave a bribe of Rs.3,000/- to

the IO to make out a case under Section 307 IPC and PW 2 stated that

the accused was arrested on 3rd October, 1999 i.e. the day of incident

while the IO stated that he arrested the appellant on 7th October, 1999.

There were material improvements in the deposition of the injured i.e.

PW 1 Smt.Sheela Devi. The place of occurrence/site plan (Ex.PW

10/D) was changed and disputed. PW 3 Sharda Devi deposed that the

quarrel took place between the appellant & PW 3 i.e. the husband of

the injured and not between PW 1 and the appellant. The prosecution

failed to prove as to who took away and got admitted the injured in

hospital. The recovery of weapon of offence i.e. ustra (razor) was

not proved beyond reasonable doubts inasmuch as PW 2 who was

the sole independent witness, stated that the weapon was not

recovered in his presence on the said date, time and place at

appellant's instance. More so, the expert opinion of the doctor was

not sought whether the injury was caused by the alleged weapon;

no record was produced by the prosecution regarding admission,

treatment and discharge of the injured from the hospital. As per the

statement of PW 5 and the MLC which is Ex.PW 5/A,it was a case of

stabbing while the alleged weapon of offence was an 'Ustra'

inasmuch as stabbing could be caused by a pointed weapon and

not by the alleged weapon of offence.

7. Per contra, argument advanced by learned Additional Public

Prosecutor for the State is that the accused/appellant was rightly held

guilty under Section 307 of the IPC inasmuch as the appellant came to

the house of the injured, abused her husband and threatened him to

teach a lesson. Upon her refusing to do so, the accused, who had a

piece of Ustra, hit her on the left side of the stomach as a result of

which the injured Smt.Sheela Devi sustained grievous injuries. The

victim, in her statement, specifically alleged the accused Muslim Khan

to have inflicted her injuries. Therefore, the prosecution has

successfully proven the offence of the appellant beyond all reasonable

doubts and in such circumstances, the impugned judgment and order

on sentence passed by learned Additional Sessions Judge do not call

for any interference and the same are liable to be upheld.

8. The nominal roll of the appellant has been called for which

reflects that as on 3rd January, 2002, the appellant had undergone

incarceration of three months and ten days and earned remission of

eight days.

9. I have heard the submissions made on behalf of the State and

gone through the petition, impugned judgment and order on sentence

and the material available on record. This court finds that the learned

Additional Sessions Judge had held the appellant guilty on account of

the injured witness, eye-witness and on the basis of MLC of the

injured.

10. Smt. Sheela Devi (PW-1) is the victim/injured in the present

case, who in her deposition before the court stated that on 19th

September, 1999 a dispute arose with Rajinder Tyagi over Govt.

underground water pipeline and on 3rd October, 1999 when this

witness along with her neighbour PW 4 Ram Murthi were talking, the

accused, who sat on a cot in front of Tyagi's house, started abusing

her husband. She further deposed that her husband was inside the

house. She objected to the accused abusing her husband as there was

no grudge between them but despite that, the accused kept on abusing.

After that, the wife of Muslim Khan called Tyagiji; husband of PW 1

also came out on hearing the noise; PW 4 Ram Murthi was standing

besides PW 1 while PW 3 Smt.Sharda Devi was in the back of this

witness and PW 6 Bharat Singh was on her right side. She further

deposed that the accused pushed knife into her abdomen which she

earlier thought to be knife but later came to know that the same was a

Razor. This witness further stated that her son, tenant and neighbour

took her to Jeevan Hospital where she was given treatment. She

further stated that she was earlier taken to Kamal Hospital by her son,

but the said hospital refused to give her treatment.

11. Dev Dutt Sharma (PW-2) in his statement deposed that on 3rd

October, 1999 when he was listening to the news, he heard noise of

his wife i.e. injured/PW-1 Sheela Devi, who was talking to PW-4 Ram

Murti sitting on slab. He further stated that his wife was asking the

accused not to abuse them as they had no grudge against each other

and that the accused Muslim Khan was using very filthy abuses. PW-2

stated that he was pushed inside by his wife. This witness made a call

to police to the effect that the accused had injured his wife with razor.

This witness further stated that on 3rd October, 1999, the accused

started abusing him so that he could come out but after that, he injured

his wife. PW 2 stated that his son and a lady took his wife to Kamal

Nursing Home where they told them that his wife should be taken to

Safdarjung or AIIMS. In cross-examination, the witness deposed that

when his wife restrained Muslim Khan not to rebuke him, he

immediately took out ustra (razor) and attacked his wife and she got

injuries in her stomach. He also deposed that ustra (razor) was

recovered from the appellant on 07.10.1999 and the appellant as well

as razor were identified on his pointing out.

12. PW-3 Smt.Sharda Devi in her statement stated that on

03.10.1999 she noticed some quarrel between wife of Dev Dutt

Sharma and the accused Muslim Khan. On hearing some noise, she

came out and heard that Sheela Devi had been cut by Muslim Khan.

Thereafter, Rajinder asked Muslim Khan to run away to the House of

Jagdish Narain. Thereafter, some children came and they snatched the

knife from Muslim Khan.

13. Another relevant witness for the purpose of proving guilt of the

accused is Ram Murti (PW-4), who in her statement deposed that at

about 8/8.30 PM when Sheela was talking to her, accused Muslim

Khan started abusing masterji by the name of his daughter. When she

objected, the accused pushed her and stabbed Sheela with knife in the

left portion of her abdomen. In her cross-examination, she deposed

that the accused had a knife in his hand, he pushed her and she fell

down and thereafter he stabbed Sheela.

14. Dr. M.A. Siddiqui (PW-5) had prepared the history sheet of the

injured Sheela Sharma and deposed that she had stabbed injuries on

03.10.1999 and later on 07.10.1999 after seeing the prescription and

injury he opined the nature of injury as grievous. He further deposed

that he referred the patient to a surgeon.

15. Sub-Inspector Chander Singh (PW-10) had deposed in his

statement that after receiving the information; DD No.59B; he visited

Jeevan Nursing Home where the injured Sheela was admitted;

recorded the statement of the injured and sent the same for registration

of FIR. Site was inspected, site plan prepared with correct marginal

notes at the pointing out of witness Sarda, recorded the statement of

witnesses and collected the MLC of the injured on 07.10.1999 and

after considering the opinion of the doctor regarding the injuries being

grievous, Section 307 was added to the FIR. On the same day, he

arrested the accused, his personal search was conducted and upon

disclosure of the accused, he recovered one blade of ustra.

16. Perusal of the impugned judgment passed by the learned

Additional Sessions Judge reveals that the appellant has been

convicted for 307 IPC on the basis of statement of injured and eye-

witness as well as on the basis of the MLC of the injured upon which

the doctor has opined the injuries being grievous. For ready reference,

Section 307 of the IPC which reads as follows is provided hereunder:

"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 (imprisonment for life), or to such punishment as is hereinbefore mentioned."

17. To prove the guilt of the accused for the offence under Section

307 of IPC, what the court needs to ascertain is the fact whether the

act committed by the accused person had an intention to commit the

offence or not. This court is also of the considered opinion that for

holding a person guilty for the offence under Section 307 of IPC, it is

not essential that bodily injury capable of causing death should have

been inflicted. Although the nature of injury actually caused may often

give considerable assistance in coming to a finding as to the intention

of the accused, such intention may also be deduced from other

circumstances, and may even, in some cases, be ascertained without

any reference at all to actual wounds. It is not necessary that the injury

actually caused to the victim of the assault should be sufficient under

ordinary circumstances to cause the death of the person assaulted.

What the Court has to see is whether the act, irrespective of its result,

was done with the intention or knowledge and under circumstances

mentioned in the Section.

18. This court is further of the view that whether there was intention

to kill or knowledge that death will be caused is a question of fact and

would depend on the facts of a given case. The circumstances that the

injury inflicted by the accused was simple or minor will not by itself

rule out application of Section 307 IPC. The determinative question is

intention or knowledge, as the case may be, and not the nature of

injury.

19. In the considered opinion of this court, to justify a conviction

under Section 307 IPC, it is not essential that bodily injury capable of

causing death should have been inflicted. It is also not necessary that

the injury actually caused to the victim of the assault should be

sufficient under ordinary circumstances to cause the death of the

person assaulted. What the Court has to see is whether the act,

irrespective of its result, was done with the intention or knowledge and

under circumstances as mentioned in the Section. An attempt in order

to be criminal need not be the penultimate act. It is sufficient in law, if

there exists an intent coupled with some overt act in execution thereof.

20. Apart from the above, to prove the guilt of the accused, only the

statement of injured is sufficient. In this regard, it would be relevant to

mention that in Abdul Sayeed vs State Of M.P, (2010) 10 SCC 259,

the Hon'ble Apex Court, while dealing with the reliability of

testimony of injured witness, has held as under:

"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are

strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

21. In the facts of the present case, the appellant had caused injuries

on the abdomen of the injured Sheela with some sharp edged

weapon/instrument like ustra (razor) and at the relevant time the

accused/appellant had knowledge of the fact that causing injury with

sharp edged weapon/instrument like ustra (razor) to the victim may

cause her death. More so, the to corroborate the injuries on the person

of Sheela, Dr. M.A. Siddiqui (PW-5), Medical Officer, Jeevan

Nursing Home, New Delhi, has even deposed that as per medical

certificate (Ex.PW-5/B) he had opined the nature of injury as grievous.

22. What more required to prove the guilt of the appellant for the

offence under Section 307? He had caused injury with sharp edged

weapon, with knowledge of the fact that causing injury at the vital

party of body of the victim, i.e., abdomen, may result to her death

couple with the fact that the treating doctor has opined about the

injuries being grievous. This court also finds from the evidence and

the material placed on record that the presence of the appellant at the

spot on the date of incident; recovery of ustra (razor) at his instance;

and identity of the appellant have been established by the prosecution

beyond all reasonable doubts. The injured eye witnesses examined by

the prosecution, i.e., Ram Murti, PW-4 has specifically stated that

when injured - Sheela was talking to her, accused Muslim Khan

started abusing masterji by the name of his daughter. When she

objected, the accused pushed her and stabbed Sheela with knife in the

left portion of her abdomenthe role of the appellant in causing

grievous injuries on her abdomen.

23. In view of the evidence produced on record, as discussed above,

this court finds that there is sufficient evidence on record to convict

the appellant for the offence under Section 307 of IPC and this court

does not find any irregularity or infirmity in the impugned judgment.

Accordingly, this court does not find any illegality or infirmity in the

impugned judgment dated 16.08.2001 as well as order on sentence

dated 11.09.2001 passed by the learned Additional Sessions Judge

thereby convicting and sentencing the appellant for the offence under

Section 307 of IPC, therefore the same are upheld.

24. Resultantly, finding no merit in the appeal, the appeal filed by

the appellant is dismissed. The appellant is directed to surrender

before the trial court concerned within a period of 15 days to serve the

remainder of sentence of imprisonment.

25. A copy of this order be sent to the Trial Court for information

and necessary steps.

26. With aforesaid directions, the present appeal is disposed of.

(P.S.TEJI) JUDGE MAY 29, 2017 pkb