Delhi High Court
Bali vs State Through Government Of Nct on 14 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A. 36/2021
Reserved on: 13.12.2021
Date of Decision: 14.03.2022
IN THE MATTER OF:
BALI ..... Appellant
Through: Mr. Ashok Mittal, Advocate.
versus
STATE THROUGH GOVERNMENT OF NCT ..... Respondent
Through: Ms. Neelam Sharma, APP for State.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J.
1. The present appeal has been filed under Section 374(2) Cr.P.C. on behalf
of the appellant assailing the judgment on conviction dated 29.10.2020 and the
order on sentence dated 11.12.2020 passed by the learned ASJ-05, West District,
Tis Hazari Courts, Delhi in Case No. 58264/2016 arising out of FIR No.
535/2015 registered under Section 307 IPC at P.S. Kirti Nagar, Delhi.
2. Vide the impugned judgment, the appellant was convicted for the offence
punishable under Sections 308/34 IPC and the offence punishable under
Sections 324/34 IPC. By way of the order on sentence dated 11.12.2020, he was
sentenced as follows:-
(i) For the offence punishable under Sections 308/34 IPC, to undergo Simple
Imprisonment for a period of 02 years, alongwith payment of fine of Rs.1,000/-,
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in default whereof to further undergo Simple Imprisonment for a period of 01
month,
(ii) For the offence punishable under Sections 324/34 IPC, to undergo Simple
Imprisonment for a period of 01 year, alongwith payment of fine of Rs.1,000/-,
in default whereof to further undergo Simple Imprisonment for a period of 15
days.
Both the sentences were directed to run concurrently. The benefit of
Section 428 Cr.P.C. was extended to the appellant.
3. Brief facts of the case, as noted by the Sessions Court, are as under :-
"1. On 18.09.2015, DD No.39A was assigned to SI Rajpal and
thereafter, he alongwith Ct. Vijay went to the spot, where they came
to know that injured have already been shifted to Acharya Bhikshu
Hospital and thereafter, they also went to the said hospital where
injured Bhagirath and injured Om Prakash met them under MLC
No.10906 and MLC No.10801 respectively. Thereafter, SI Rajpal
recorded the statement of injured/ complainant Bhagirath. In his
complaint, injured/complainant Bhagirath alleged that on
18.09.2015 at about 11:00 AM, when his son-in-law namely Om
Prakash was returning home from work, then on the way accused
Bali and his associate (JCL), (both used to reside in his
neighborhood) had called Om Prakash by saying "Haddi Kahan Se
Aa Raha Hai". On this, Om Prakash did not respond to accused
Bali and his associate (JCL). However, after reaching home, Om
Prakash disclosed the abovesaid fact to him (Bhagirath). Thereafter,
complainant Bhagirath and Om Prakash went to the house of JCL
i.e. associate of Bali, where they met Bali and his associate (JCL) as
well as father of JCL namely Mani Ram and they complained the
father of JCL namely Mani Ram against the accused Bali and JCL.
Complainant also alleged that on this accused Bali and his associate
(JCL) threatened them to kill and in the meanwhile, accused Bali had
inflicted a knife blow on his cheek and accused Bali also inflicted
knife blow on the stomach of Om Prakash and during the said
incident, the associate of accused Bali i.e. JCL also caught hold him
(complainant) and Om Prakash and also beaten them and thereafter,
when they (complainant Bhagirath and Om Prakash) raised alarm
then accused Bali and his associate (JCL) fled away from there."
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4. After completion of investigation, the charge sheet was filed against the
appellant under Sections 307/34 IPC. The case was committed by the learned
Metropolitan Magistrate to the Sessions Court, wherefore charges were framed
against the appellant under Sections 307/34 IPC and Sections 326/34 IPC, to
which he pleaded not guilty and claimed trial.
5. Learned counsel for the appellant contended that the appellant has been
falsely implicated in the present case, as the injured persons had a prior dispute
with the appellant's father over an amount of Rs.500/-. It was further contended
that the appellant could not have been convicted under Section 324 IPC, as the
weapon of offence was not recovered and resultantly, there was no opinion from
the concerned Doctor.
6. Learned APP for the State, on the other hand, supported the impugned
judgment. It was submitted that injuries were caused by the appellant on the
stomach and face of the victims with a knife, and thus, the requisite intention
and/or knowledge to attract the charged offences was present.
7. I have heard learned counsel for the appellant as well as the learned APP
for the State and perused the entire material placed on record.
8. In support of its case, the prosecution examined nine witnesses during the
trial. Bhagirath, the injured/complainant, was examined as PW-1. He deposed
that on 18.09.2015, the appellant along with the co-accused/JCL, who were
residents of the same vicinity, had teased his son-in-law/Om Prakash by saying
"Haddi Kahan Jaa Rha Hai". Om Prakash complained about the incident to the
uncle of JCL, on which both the accused got enraged and gave beatings to Om
Prakash. The complainant was working nearby and reached the spot. On seeing
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him, the appellant as well as the JCL fled away. It was further deposed that in
the evening, he and Om Prakash went to lodge complaint with the parents of the
accused. At about 7:00 or 7:30 p.m., while Om Prakash was outside their house,
the appellant and the JCL started beating Om Prakash. When the complainant
intervened to save him, the appellant gave a knife blow, which landed on his
face/cheek. The appellant also stabbed Om Prakash in his stomach. On alarm
being raised, both the appellant and the JCL fled away from the spot. The
complainant, alongwith Om Prakash, was taken to Acharya Bhikshu Hospital,
where his statement was recorded by the Police. He was discharged from the
hospital on the same day. After about 28-30 days of the incident, the appellant
and the JCL were apprehended and he had identified both of them in the Police
Station. He again identified the appellant in the trial.
In his cross-examination, the complainant stated that Om Prakash along
with his family was residing with him in the same house. He denied that on
18.09.2015, he and Om Prakash were working together. He deposed that on the
day of the incident, he was given the work of constructing a boundary wall in a
vacant plot in C-Block, Mansarovar Garden, Delhi and the father of the
appellant was also with him. He admitted that a tip of Rs.500/- was given to him
and others by one Munna Lal, however, he denied the suggestion that all of them
including Om Prakash had celebrated the evening by indulging in a drinking
session. He further deposed that he came to know about the incident at about 11
a.m. on 18.09.2015 and the Police was informed by them at 08:30 p.m., when
they went to the Police Station. From the Police Station, they went to the said
hospital. It was also deposed that his statement was recorded at Acharya Bhikshu
Hospital. He admitted that he was not present when Om Prakash was teased by
the accused. The complainant denied the suggestion that he sustained injuries
on slipping and hitting an object or that Om Prakash had sustained injuries when
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he came to help him. He also denied the suggestion that he had falsely
implicated the appellant as he had a dispute with the appellant's father with
respect to money.
9. Om Prakash was examined as PW-2. He deposed that on the day of the
incident, he had left for his daily job at about 10 a.m. On receiving a call from
his father, who asked him to bring some wood, he returned home. As he was
returning home, the appellant and the JCL met him outside his house and the
JCL called him by saying "O Saadu Idhar Aa". Om Prakash also stated that he
was given beatings by both the accused. He further stated that he informed his
father-in-law about the incident, whereafter they went to the house of the JCL to
report the matter to his father. Pursuant thereto, the appellant and the JCL had a
scuffle with them in which the appellant stabbed Om Prakash in the stomach
and also gave a knife blow on the cheek of his father-in-law/Bhagirath.
In the cross-examination by the learned APP, the witness stated that on
the day of the incident, both the appellant and the JCL had passed the comment
"Haddi Kahan Se Aa Raha Hai". He further stated that before beating them, the
appellant and the JCL had stated "Tujhe Aaj Jaan Se Maar Dete Hain".
In his cross-examination by the learned counsel for the appellant, the
witness stated that when the incident took place, he was residing separately with
his family as a tenant in a jhuggi adjacent to the jhuggi of Bhagirath and nobody
else apart from his own family was residing with him. He denied the suggestion
that on the day of the incident, he and Bhagirath were working together
alongwith others, where they received a tip and celebrated the evening by
indulging in a drinking session. He further denied the suggestion that both of
them sustained injuries on some previous day due to fall. He also denied the
suggestion that he and Bhagirath had falsely implicated the appellant as they
had a money dispute with the appellant's father.
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10. Dr. S.K. Kakran, Chief Medical Officer, Acharya Bhikshu Hospital was
examined as PW-3. He deposed that on the day of the incident, both the victims
were brought to the hospital between 10:55-11:00 p.m. Their medical
examination was done by him, whereafter their MLCs were prepared. The
witness proved the MLCs of Om Prakash and Bhagirath. He also proved the
endorsement made by Dr. Pankaj Sareen on the respective MLCs after
examination of the victims, according to which the nature of injuries was simple.
In cross-examination, the witness stated that a person could sustain the
injuries mentioned in the MLCs if he stood up and hit against a pointed object.
11. HC Upendra Tiwari was examined as PW-4. He deposed that on the day
of the incident, he was posted at P.S. Kirti Nagar and was working as Duty
Officer. At about 9:07 p.m., he received information from wireless operator to
the effect that a person had been stabbed during a fight which took place
opposite Kirti Nagar police station. The witness deposed that he had recorded
this information vide DD No.39A (Ex.PW4/A) and assigned the information to
SI Rajpal.
12. Const. Sandeep Kumar was examined as PW-6. He deposed that on
31.10.2015, the appellant came to the police station with his father and after
interrogation by the Investigating Officer, he was arrested.
13. Const. Vijay Singh was examined as PW-8. In his cross-examination by
the learned counsel for the appellant, he stated that the incident took place in the
jhuggis of Kamla Nehru Park, i.e., outside the park. He also deposed that the
Investigating Officer had not recorded statements of the public persons at the
spot in his presence.
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14. The Investigating Officer/SI Rajpal was examined as PW-9. He deposed
that on receipt of information about the incident, he had reached the spot, where
he was informed that the two injured persons had been removed to Acharya
Bhikshu Hospital. He had gone to the aforesaid hospital and collected the MLCs
of the injured persons. He had made inquiry from Bhagirath who informed that
the injuries were caused to him and Om Prakash by the appellant and the JCL
with a sharp object. It was further deposed that both the injured were discharged
at about 5 or 6 a.m. from the hospital. It was also deposed that on 31.10.2015,
the appellant came to the police station with his father, whereafter his
interrogation was conducted and he was arrested. The witness stated that on the
disclosure of the appellant, the police officials went to Tanki Wala Park situated
in Ramesh Nagar, but the weapon of offence i.e., keel (nail) stated to be thrown
in the park could not be recovered.
In cross-examination, the witness admitted that he did not record the
statement of any of the neighbors, where the alleged incident had taken place.
He stated that enquires were made, but he did not record their names. It was
further deposed that he did not remember whether he had made any enquires
from the injured persons as to whether they had gone for work on the day of the
incident. He admitted that he did not obtain the Call Data Records (CDR) of the
injured persons and the appellant to ascertain their presence at the spot of
incident. It was also admitted that he had not recorded the statement of Mani
Ram, i.e. the relative of the accused to whom the victims had gone in the
evening to report the incident of teasing. The witness stated that the accused had
themselves come to the police station. He further deposed that the accused
persons were medically examined, however, no such examination report was
available on the judicial file.
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15. The statement of the appellant was recorded under Section 313 Cr.P.C.,
wherein he stated that he was falsely implicated in the present case and the
complainant had sustained injuries himself prior to the day of the alleged
incident.
16. Needless to state, the position of law on the credibility and reliability of
an injured witness is well-settled. In this regard, the Supreme Court in Abdul
Sayeed v. State of Madhya Pradesh reported as (2010) 10 SCC 259 has held as
follows:
"28. The question of the weight to be attached to the evidence of a
witness that was himself injured in the course of the occurrence has
been extensively discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident, the testimony of
such a witness is generally considered to be very reliable, as he is a
witness that comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual assailant(s) in
order to falsely implicate someone. "Convincing evidence is required
to discredit an injured witness." [Vide Ramlagan Singh v. State of
Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of
Punjab, Appabhai v. State of Gujarat, Bonkya v. State of
Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c),
Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan,
Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of
Maharashtra.]"
17. In the present case, a perusal of the testimonies of Bhagirath and Om
Prakash would show that both, the first as well as the second incident, have
been described without there being any material improvement or contradiction.
Reportedly, both the victims received injuries at the hand of the appellant. The
factum of their having received injuries is duly corroborated by their MLCs,
which were prepared immediately after the second incident. Further, there is no
delay in registration of the case. In these facts, this Court finds the testimonies of
the injured witnesses to be both credible and reliable.
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18. Before proceeding further, it is deemed apposite to advert to Section 308
and Section 324 of the IPC, which prescribe as follows:-
Section 308 IPC
"308. Attempt to commit culpable homicide.--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 culpable
homicide not amounting to murder, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both; and, if hurt is caused to any
person by such act, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine,
or with both.
Illustration
A, on grave and sudden provocation, fires a pistol at Z, under such
circumstances that if he thereby caused death he would be guilty of
culpable homicide not amounting to murder. A has committed the
offence defined in this section."
Section 324 IPC
"324. Voluntarily causing hurt by dangerous weapons or means.--
Whoever, except in the case provided for by Section 334, voluntarily
causes hurt by means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as a weapon of offence, is
likely to cause death, or by means of fire or any heated substance, or
by means of any poison or any corrosive substance, or by means of
any explosive substance or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to receive
into the blood, or by means of any animal, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both."
19. A bare reading of Section 308 IPC would show that to prove the
commission of an offence thereunder, two ingredients are required to be
established: -
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(i) that an act was committed, and
(ii) that the act was committed with such intention or knowledge and
under such circumstances that, if death was caused by the act, the accused
would be guilty of culpable homicide not amounting to murder.
20. On the other hand, to prove the commission of an offence under Section
324 IPC, the ingredients required to be established are as follows:-
(i) that hurt was caused by means of any instrument for shooting,
stabbing or cutting, or any instrument which, used as a weapon of offence,
is likely to cause death, or by means of fire or any heated substance, or by
means of any poison or any corrosive substance, or by means of any
explosive substance or by means of any substance which it is deleterious
to the human body to inhale, to swallow, or to receive into the blood, or
by means of any animal
(ii) that such hurt was caused voluntarily
(iii) that the case is not covered by Section 334 IPC.
21. It is noted that the Supreme Court, in Bishan Singh and Another v. State
reported as (2007) 13 SCC 65, while holding the conviction of the accused
under Section 308 IPC unsustainable, had held as follows:
"11. Before an accused can be held to be guilty under Section 308
IPC, it was necessary to arrive at a finding that the ingredients
thereof, namely, requisite intention or knowledge was existing. There
cannot be any doubt whatsoever that such an intention or knowledge
on the part of the accused to cause culpable homicide is required to
be proved. Six persons allegedly accosted the injured. They had
previous enmity. Although overt act had been attributed against each
of the accused who were having lathis, only seven injuries had been
caused and out of them only one was grievous, being a fracture on
the arm, which was not on the vital part of the body.
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12. The accused, therefore, in our opinion, could not be said to have
committed any offence under Section 308 IPC. The same would fall
under Sections 323 and 325 thereof."
(emphasis added)
22. In Roop Chand v. State (NCT) of Delhi reported as
MANU/SC/0969/2020, while modifying the conviction of the appellant from
one under Section 308 IPC to that under Section 324 IPC, the Supreme Court
observed as under:-
"12. Accepting true what the injured has deposed, we find it difficult
to hold that the Appellant had any intention or knowledge to inflict
such injury which could cause the victim's death within the meaning
of culpable homicide not amounting to murder. The Appellant had in
a fit of rage inflicted singular injury on the left temple of the injured
and made no attempt to repeat such attack or strike a second blow,
which indicates that he did not intend to cause any fatal injury.
Similarly, given the facts of this case, it would be far-fetched to hold
that the Appellant knew that his actions were likely to cause the
death of the injured.
13. We are, thus, of the opinion that the evidence on record falls
short of establishing the requisite ingredients of Section 308 of
Indian Penal Code, though the Appellant is undoubtedly guilty of
voluntarily causing hurt with a sharp-edged weapon within the
meaning of Section 324 of Indian Penal Code."
23. Based on a reading of judicial dicta on the issues involved in the present
case, suffice it to note that every incident of stabbing with a knife/sharp object,
if proved, does not ipso facto lead to a conclusion that death of the injured was
likely by the act of the accused. In fact, the nature of the actual harm/injury, if
any, resulting from the act is inconsequential under Section 308 IPC. What is
required to be proved is the intention or knowledge on the part of the accused to
cause the act under such circumstances that if death was caused, the act would
be adjudged as culpable homicide not amounting to murder. Needless to add, the
said intention or knowledge has to be discerned from the facts and
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circumstances of each case, including the nature of injuries suffered by the
victim(s) and the kind of weapon(s) used.
24. In the present case, it is seen that the information regarding the alleged
incident was initially received and recorded vide DD No.39A (Ex.PW4/A),
wherein it was noted that a person had been stabbed in a fight in front of the gate
of P.S. Kirti Nagar. However, on inquiry, it was revealed that the incident in
question had taken place in the jhuggis of Kamla Nehru Camp, whereafter the
police officials proceeded there and found that the injured had been removed to
Acharya Bhikshu Hospital.
25. As per the prosecution case, two incidents had taken place between the
accused persons and the victims. The first incident took place in the morning of
18.09.2015 when the appellant reportedly teased Om Prakash and gave beatings,
which was not reported. The second incident occurred when Om Prakash, along
with Bhagirath, went to the house of the JCL in the evening of the same day to
complain to his father about the first incident. As alleged, the appellant was also
present at the time at the house of the JCL. A scuffle took place and the victims
got injured. From the testimony of PW-1, it is apparent that the appellant hurled
a blow at him only when he intervened.
26. According to the allegations levelled, the appellant had hurled two blows
at the time of the second incident - one at Bhagirath, which landed on his cheek,
and the other at Om Prakash, which resulted in injury on his stomach. In the
MLCs of the victims, the nature of the injuries sustained was opined to be
'simple'. As per the testimony of the Investigating Officer, both the victims were
discharged from the concerned hospital on the same/next day.
The victims have alleged that the injuries were inflicted on them by the
appellant using a knife. A perusal of the testimony of PW-9/Investigating
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Officer would show that Bhagirath informed him that the injuries were caused
by 'some sharp object'. Admittedly, no weapon has been recovered during the
investigation. In this regard, it is noted that after obtaining the MLCs from the
hospital, no subsequent expert opinion was sought by the investigating agency
on the nature of the weapon used to commit the alleged offence.
27. Further, even though there are allegations against the accused that after
inflicting of injuries, they had caught hold of the injured witnesses and given
them beatings, it is not the prosecution case that the injuries allegedly given with
a knife were inflicted while the injured witnesses were restrained in order to
render them incapable of defending themselves.
28. It is worthwhile to note that from the testimonies of the two injured
witnesses in the present case, no intention or knowledge on the part of the
appellant to cause death at the time of inflicting of injuries is made out.
Moreover, despite intention or knowledge to cause the impugned act forming an
essential ingredient of Section 308 IPC, no question in the regard appears to
have been put to the appellant at the time of his examination under Section 313
Cr.P.C.
29. In this regard, it is deemed profitable to underline the position of law on
the examination of an accused under Section 313 Cr.P.C.
30. The significance of the examination of an accused Section 313 Cr.P.C.
has been captured by the Supreme Court in State of Uttar Pradesh v. Mohd.
Iqram and Another reported as (2011) 8 SCC 80, where it was observed as
follows:-
"21. ...The court cannot place reliance on incriminating material
against the accused, unless it is put to him during his examination
under Section 313 CrPC. Thus, the High Court committed an error
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by taking into consideration the inadmissible evidence for the
purpose of deciding the criminal appeals and holding the person
guilty who had already been acquitted by the trial court. The post-
mortem report had been examined at the time of framing of the
charges. The trial court did not frame any charge under Section 376
IPC or Section 376 read with Section 511 IPC. More so, no witness
had ever mentioned anything in this respect. Thus, it is beyond any
stretch of imagination of any person, how such observations could be
made by the High Court.
22. No matter how weak or scanty the prosecution evidence is in
regard to certain incriminating material, it is the duty of the court to
examine the accused and seek his explanation on incriminating
material that has surfaced against him.
"22. Section 313 CrPC is based on the fundamental principle of
fairness. The attention of the accused must specifically be brought to
inculpatory pieces of evidence to give him an opportunity to offer an
explanation if he chooses to do so. Therefore, the court is under a
legal obligation to put the incriminating circumstances before the
accused and solicit his response. This provision is mandatory in
nature and casts an imperative duty on the court and confers a
corresponding right on the accused to have an opportunity to offer
an explanation for such incriminatory material appearing against
him. Circumstances which were not put to the accused in his
examination under Section 313 CrPC cannot be used against him
and have to be excluded from consideration."
(Vide Sharad Birdhichand Sarda v. State of Maharashtra, State of
Maharashtra v. Sukhdev Singh, SCC p. 741, para 50 and Paramjeet
Singh v. State of Uttarakhand, SCC p. 449, para 22.)"
31. In Satbir Singh and Another v. State of Haryana reported as (2021) 6 SCC
1, it has been opined by the Supreme Court that examination of an accused
under Section 313 Cr.P.C. cannot be treated as a mere formality. Relevant
excerpt from the decision is extracted hereunder:-
"Conclusions
xxx
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38.6. It is a matter of grave concern that, often, trial courts record
the statement under Section 313 CrPC in a very casual and cursory
manner, without specifically questioning the accused as to his
defense. It ought to be noted that the examination of an accused
under Section 313 CrPC cannot be treated as a mere procedural
formality, as it based on the fundamental principle of fairness. This
aforesaid provision incorporates the valuable principle of natural
justice "audi alteram partem" as it enables the accused to offer an
explanation for the incriminatory material appearing against him.
Therefore, it imposes an obligation on the court to question the
accused fairly, with care and caution.
38.7. The court must put incriminating circumstances before the
accused and seek his response..."
32. While underscoring that the procedure under Section 313 Cr.P.C. is a
facet of the principles of natural justice, the Supreme Court in Pramila v. State of
Uttar Pradesh reported as 2021 SCC OnLine SC 711 recently observed thus:-
"9. ...It has repeatedly been held that the procedure under Section
313 CrPC is but a facet of the principles of natural justice giving an
opportunity to an accused to present the defence. The burden of
proof on an accused in support of the defence taken under Section
313 CrPC is not beyond all reasonable doubt as it lies on the
prosecution to prove the charge. The accused has merely to create a
doubt. It will be for the prosecution then to establish beyond
reasonable doubt that no benefit can flow from the same to the
accused...
10. In Janak Yadav v. State of Bihar, (1999) 9 SCC 125, it was
observed as follows:
"5. Section 313 CrPC prescribes a procedural safeguard for an
accused facing the trial to be granted an opportunity to explain the
facts and circumstances appearing against him in the prosecution's
evidence. That opportunity is a valuable one and cannot be ignored.
It is not a case of defective examination under Section 313 CrPC
where the question of prejudice may be examined but a case of no
examination at all under Section 313 CrPC and as such the question
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whether or not the appellants have been prejudiced on account of
that omission is really of no relevance...."
33. At this stage, it is deemed apposite to cite the decision in Anwarul Haq v.
State of U.P. reported as (2005) 10 SCC 581 where, while maintaining the
conviction of the accused under Section 324 IPC despite non-recovery of the
alleged weapon of offence, the Supreme Court had held as follows:-
"11. We find that the trial court has analysed in great detail the
evidence of eyewitnesses, including that of PW 1, the injured and
therefore there is no scope for interference. The plea that the weapon
used was not a dangerous weapon had never been urged before the
trial court or the High Court. Whether weapon is a dangerous
weapon or not has to be gauged only on the factual basis...
12. ...The expression "an instrument, which used as a weapon of
offence, is likely to cause death" should be construed with reference
to the nature of the instrument and not the manner of its use. What
has to be established by the prosecution is that the accused
voluntarily caused hurt and that such hurt was caused by means of
an instrument referred to in this section.
xxx
15. Eyewitnesses in the present case have described the knife, and
merely because the knife has not been recovered during investigation
same cannot be a factor to discard the evidence of PWs 1 and 2.
Wounds noticed by the doctor (PW 3) also throw considerable light
in this aspect. The doctor's opinion about the weapon, though
theoretical, cannot be totally wiped out. In that view of the matter the
appellant has been rightly convicted under Section 324 IPC."
(emphasis added)
In light of the above decision, non-recovery of the alleged weapon of
offence in the present case is held to be of no consequence, as both injured
victims have consistently deposed that they were inflicted injuries with a knife.
Signature Not Verified
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By:SANGEETA ANAND
Signing Date:15.03.2022
16:42:51
34. Considering the foregoing, the nature of injuries suffered by Om Prakash
and Bhagirath, which as per their MLCs were 0.5 cm deep, as well as the fact
that even as per the prosecution case, only a single knife blow was given to each
victim, of which the second was given to Bhagirath only when he intervened,
this Court is of the opinion that the injuries caused to the victims were the
outcome of a sudden fight and the act of the appellant, though voluntary, was
not caused with such intention or knowledge and/or under such circumstances
that if death was caused of the victim(s), the appellant would have been guilty of
culpable homicide not amounting to murder. Accordingly, the essential
ingredients to establish commission of offence under Sections 308/34 IPC
cannot be culled out from the facts of the present case.
35. However, at the same time, it is noted that the factum of injuries having
been inflicted on the victims with a knife, i.e., a 'dangerous weapon' in terms of
Section 324 IPC, has been consistently deposed by Bhagirath as well as Om
Prakash, who are both injured eye-witnesses and whose testimonies have been
found reliable. Besides the testimonies of the victims, the allegations in the
present case are corroborated by the MLCs of the victims which were prepared
on the day of the incident and which have been duly proved during trial by Dr.
S.K. Kakran (PW-3).
36. In view of the aforesaid, the present appeal is allowed. The appellant is
held not guilty of offence punishable under Sections 308/34 IPC and his
conviction is altered to one under Section 324 IPC.
37. At this stage, this Court takes note of the submission made on behalf of
the appellant that at the time of offence he was about 21 years of age, and is the
sole bread earner of his family, having responsibility of aged parents as well as
two minor children aged 1½ and 2½ years. Further, the incident in question
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Signing Date:15.03.2022
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dates back to the year 2015. The appellant is also not stated to be involved in
any other case and his overall jail conduct has been reported to be satisfactory.
38. Prior to rendering an opinion on the aspect, reference may be made to an
observation by the Supreme Court in Roop Chand (Supra), which has a bearing
on the appellant's submission and weighs with this Court:-
"15. It would be trite to note that Courts must award punishment in a
judicious manner, after taking into account various relevant
circumstances including the gravity and nature of offence, motive of
the crime and other attendant circumstances. Applying these
parameters, we are of the considered view that ends of justice would
be adequately met if the sentence of the Appellant is reduced to the
period which he has already undergone."
39. Based on the overall facts and circumstances of the case, in particular the
fact that the nature of injuries received by the victims has been opined to be
'simple' in their respective MLCs, this Court is of the opinion that interest of
justice would be served by directing to modify the sentence of the appellant to
the period already undergone by him, subject to payment of compensation of
Rs.15,000/- each by the appellant to the injured persons within a period of 8
weeks from the date of this judgement, in default whereof he shall undergo
Simple Imprisonment for 01 month. It is ordered accordingly.
40. A copy of the judgment be communicated to the concerned Trial Court as
well as to the concerned Jail Superintendent.
(MANOJ KUMAR OHRI)
JUDGE
MARCH 14, 2022
ga
Signature Not Verified
Digitally Signed
By:SANGEETA ANAND
Signing Date:15.03.2022
16:42:51
