Delhi High Court
Jcl Shahwaz Khan vs State (Govt Of Nct Of Delhi) on 21 November, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P 702/2016
Order reserved on: 17th November,2017
Order pronounced on: 21st November,2017
JCL SHAHWAZ KHAN ...Petitioner
Through: Mr. Rajiv, Advocate.
versus
STATE (GOVT OF NCT OF DELHI) ...Respondent
Through: Mr. Arun Kumar Sharma,
APP for the State
CORAM:
% HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present Revision petition is filed by the petitioner under
Section 397 and 401 read with Section 482 of The Code of
Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') to set
aside the order dated 13.10.2016 passed by the District and
Session Judge, Karkardooma in CA No. 240/16, confirming the
judgment dated 28.05.2016 and order on sentence dated
31.05.2016 passed by the Principal Magistrate, Juvenile Justice
Board (hereinafter referred 'JJB') Courts, whereby the petitioner
was convicted and sentenced under Section 324/342/506/34 of the
Indian Penal Code, 1860 (hereinafter referred 'IPC') and was sent
to Special Home for a period of two weeks.
2. The brief facts of the present case are the FIR No.331 dated
15.05.2016, was registered against the present petitioner by one
Mohd. Raja alleging that on 24.05.2015, the petitioner along with
his father in furtherance of their common intention caused hurt to
him with the use of knife and danda, wrongfully confined him and
thereby, threatened to kill him. On purview of which, judgment
dated and order on sentence dated 31.05.2016 was passed by the
Trial court wherein the petitioner was found guilty under Section
324/342/506/34 IPC and was ordered to be sent to Special Home
for a period of two weeks as he was a minor. An appeal was filed
by the petitioner against the said order under Section 52 of Juvenile
Justice Act, 2000, before the District and Session Judge wherein
the said order was upheld. Hence, the present petition.
3. The learned counsel for the petitioner contended that the Trial
Court has erred in passing the order dated 13.10.2016, as the same
is based on conjectures and surmises; that the present case is filed
on account of family dispute existing between the parties and two
FIRs are already been filed regarding the said dispute and is
pending trial; that there are contradiction between the FIR and the
subsequent statements made during the recording of evidence of
the prosecution witnesses; that the present case was not proved
beyond reasonable doubt as no weapon was recovered as well as no
doctor was examined in order to prove the MLC, which is on
record; that the Trial Court further erred in not granting benefit of
probation to the petitioner. In these circumstances, the order dated
13.10.2016, need to be set aside.
4. Per contra, the learned APP for the state has vehemently opposed
the present petition thereby stating that there is no error in the order
dated 13.10.2016 and the same needs to be upheld.
5. The submissions made by the both the parties have been
considered and the records have been perused.
6. After considering the facts and circumstances of the present case
and perusal of record(s), it is seen that PW-2/Md. Raza @ Mohd.
Miyan/ victim, has clearly deposed that the petitioner was holding
a long knife and he was stabbed by him on his left hand as well as
on his back. The same was corroborated by the testimonies of PW-
3/Mohd. Habib/father and PW-8/ Mohd. Tariq/ brother who
deposed on similar lines and remained consistent regarding the
date, time and place of incident.
7. The contention of the counsel for the petitioner that the present
case was not proved beyond reasonable doubt as no weapon was
recovered as well as no doctor was examined in order to prove the
MLC, which is on record cannot be accepted. PW-5/ HC Rajbir
Singh, during his deposition has categorically stated that
"...Thereafter, I along with Ct. Amit went to JPC Hospital and on
reaching there I obtained the MLCs of injured namely Mohd. Miya
and Mohd. Pyare Miya..". It is seen that the same was never asked
to him during the time his testimony was recorded and therefore, it
stands admitted. It was stated in the MLC that "...stab over chest
lower side of about 3cm. Width and 4 cm. deep.....CLW at left „T‟
region 2x3 cms .....multiple lacerated wound on left arm....
Stitches done on scalp and left arm wound...". It was also stated in
the MLC report that the nature of injury was simple. The MLC No.
494 dated 24.05.2015, fully supports the case of the prosecution
and stands proved beyond reasonable doubt. Further, it is also well
settled law that if the injury has been proved by the ocular
evidence, then non-recovery of weapon is immaterial. The version
of complainant that injuries were inflicted with a knife is also
corroborated by the evidence of other prosecution witnesses as well
as by the MLC report where the nature of injury on the body of the
person itself shows that it has been inflicted by a sharp object. In
Rajvir and Anr. Vs. State reported in Crl.A. 630/1999, it has been
held by this court that "..40. Recovery of weapon of offence being
doubtful, nature of injury has reflected in the MLC and the broad
features of the case not ruling out a sudden fight, intention has to
be gathered from the nature of injuries as recorded in the MLC
and no other evidence...
... 43. Notwithstanding that the weapon of offence has not been
linked to Rajvir, as noted, oral evidence is clear that he had used a
knife when he attacked Gorakh. Case of voluntary causing hurt by
a dangerous weapon is made out.."
8. From the facts and circumstances of the present case, it is found
that the despite the injury caused by the petitioner being of
grievous nature, a lenient view has been taken by the Trial Court
by sending him to the Special Home for two weeks keeping in
view of the age of the petitioner. In this situation, no interference in
the impugned order passed by the Trial Court is called for.
9. Hence, the petition is accordingly dismissed.
CRL.M(B) 1953/16 (Suspension of Sentence)
In view of the order passed in the main petition, the present
application is rendered infructuous.
Application stands disposed of.
SANGITA DHINGRA SEHGAL, J
NOVEMBER 21 , 2017 gr//
