Delhi High Court

State vs Kamlesh Bahadur on 12 September, 2023

                          $~12
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                        Date of decision: September 12, 2023
                          +      CRL.L.P. 515/2019
                                 STATE                                                ..... Petitioner
                                                    Through:       Mr. Yudhvir Singh Chauhan, APP for
                                                                   the State SI Satyawan, P.S. Kirti
                                                                   Nagar.
                                                    versus

                                 KAMLESH BAHADUR                                    ..... Respondent
                                             Through:              Mr. Vishesh Wadhwa, Ms. Swadha
                                                                   Gupta and Mr. Ayush Singh,
                                                                   Advocates from DHCLSC.

                                 CORAM:
                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
                                                    J U D G M E N T (oral)

CRL.L.P. 515/2019

1. Leave granted.

2. The application is disposed of.

Criminal Appeal no. _____ (to be numbered)

1. The present Criminal appeal is filed under section 378(1) Cr.P.C. to

impugn the judgment dated 25.03.2019 passed by the Court of Dr.

Shahabuddin, Additional Sessions Judge/Special Judge (NDPS), West

District, Tis Hazari Courts, Delhi in SC no. 58241/2016 arising out of FIR

bearing no.0197/2016 registered under section 308 IPC at P.S. Kirti Nagar

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 whereby the respondents were ordered to be acquitted for the offences

punishable under section 308 IPC.

2. As per the prosecution, ASI Rakesh on 08.04.2016, after receipt of

DD no.17A reached at Acharya Bhikshu Hospital where injured/Sushila

Devi was found to be under treatment vide MLC bearing no.12687 E.No.

38080/2016. Thereafter, the statement of the complainant/ Sushila Devi was

recorded, wherein she stated that on 08.04.2016, she had asked Anita who is

her neighbour to keep the garbage aside on which Anita picked up the

garbage in her hand and made a gesture of throwing it towards jhuggi of

complainant/ Sushila Devi and said "I will throw it into your house". In the

meantime kamlesh Bahadur/respondent who is the husband of Anita gave a

blow by danda on the head of complainant/ Sushila Devi and she sutained

injuries on arm and hand. The Complainant/ Sushila Devi was taken to

Acharya Bhikshu Hospital. The Investigating Officer, after conclusion of the

investigation filed the charge-sheet for the offence punishable under section

308 IPC. The Trial Court of Sh. Rakesh Kumar-I, ASJ, Special Judge

(NDPS), West District, Tis Hazari Courts, Delhi vide order dated

21.08.2017 framed the charge for the offence punishable under section 308

IPC against the respondent to which he pleaded not guilty and claimed trial.

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 The prosecution had examined 08 witnesses including the injured/Sushila

Devi as PW-2 and the doctor as PW-5. The statement of the respondent was

recorded under section 313 Cr.P.C on 20.03.2019 wherein he pleaded false

implication and denied the incriminating evidence against him. The

respondent preferred to lead defence evidence and accordingly, DW-1/ R.P

Singh and DW-2 i.e respondent himself ( under section 315 Cr.P.C) got

examined.

3. The Trial Court of Dr. Shahabuddin, Additional Sessions

Judge/Special Judge (NDPS), West District, Tis Hazari Courts, Delhi vide

judgment 25.03.2019 opined that the respondent is entitled for the benefit of

doubt and accordingly the respondent was ordered to be acquitted. The

relevant part of the judgment dated 25.03.2019 is reproduced as under:-

22. On the basis of above mentioned discussion, coupled with entire oral as well as documentary evidence on record, produced on behalf of both sides, as discussed above, this Court is of the considered view that ingredients of the offence section 308 IPC are not made out against accused herein qua this matter, beyond reasonable doubt. In other words, the prosecution side has miserably failed to prove the guilt of the accused, in this case, beyond reasonable doubt, for the alleged offence, for which charge has been framed against him. Accordingly, the accused Kamlesh Bahadur is entitled for benefit of doubt and consequently he is entitled for acquittal in this case. Hence, this accused is hereby acquitted for offence u/s 308 IPC for which charge was framed against him in this case.

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21

4. The Additional Public Prosecutor argued that the impugned judgment

was passed in utter disregard of the evidence brought on record by the

prosecution and during the course of the arguments, referred the testimony

of the injured i.e. PW-2/Sushila Devi. The Additional Public Prosecutor also

referred the medical evidence by arguing that the PW-2/Sushila Devi was

admitted in the hospital and she received injuries. The Trial Court was not

justified in acquitting the respondent.

5. The counsel for the respondent during the course of the arguments,

has referred cross-examination of PW-2/Sushila Devi wherein she could not

tell the distance between her jhuggi and that of the Anita, her neighbour.

PW-2/Sushila Devi could not say as to who had put the garbage outside her

jhuggi, she also did not remember the date when the danda which was used

in the commission of crime was recovered and she did not remember

whether she had signed her statement or not. The counsel further stated that

there are material contradictions in the testimony of witness. The Trial Court

was justified in acquitting the respondent.

6. The perusal of the testimony of PW-2/Sushila Devi reflects that she

has supported the case of the prosecution and deposed that on 08.04.2016 at

about 09:15 A.M., she asked Anita, her neighbour to keep the garbage aside

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 which was lying near the entry gate of the house, on which Anita picked up

the garbage in her hand and made a gesture of throwing it towards her

jhuggi. The respondent also came out of his house with a danda and gave a

blow on the head of PW-2/Sushila Devi. PW-2/Sushila Devi during the

cross-examination also deposed that she sustained injuries on her head in the

scuffle.

7. The prosecution had also examined Dr. S.K Kaakran, Medical Officer

as PW-5, who opined the nature of injuries as received by PW-2/Sushila

Devi were simple in nature vide opinion Ex.PW-5/A. PW-5 also deposed

that as per the local examination of PW-2/Sushila Devi on 08.04.2016 there

was a CLW over scalp 2 x 1cm and a CLW over left forearm 5 x 7cm and

after giving the treatment and requisite medicines PW-2/Sushila Devi was

discharged from the hospital.

8. The perusal of the impugned judgment dated 25.03.2019 reflects that

the Trial Court was swayed by the cross-examination of the PW-2/Sushila

Devi. PW-2/Sushila Devi in cross-examination as per the impugned

judgment could not tell the distance between her jhuggi and that of the Anita

her neighbour. PW-2/Sushila Devi could not say as to who had put the

garbage outside her jhuggi, she also did not remember the date when the

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 danda which was used in the commission of crime was recovered and she

did not remember whether she had signed her statement or not.

9. The Trial Court, while acquitting the respondent for the offence

punishable under section 308 IPC, has totally ignored the testimony of PW-

2/Sushila Devi, which was supported by the medical evidence. The Trial

Court has wrongly observed that the prosecution could not prove the guilt of

the respondent beyond reasonable doubt for the offence for which he was

charged. The Trial Court should have analyzed and examined the quality

and quantity of the evidence led by the prosecution. In the final conclusion

of the impugned judgment, there is no reference of the testimony of the PW-

2/Sushila Devi and other medical evidences. The Trial Court was not

justified in acquitting the respondent for the offences punishable under

section 308 IPC vide the impugned judgment dated 25.03.2019.It is proved

that the PW-2/Sushila Devi on 08.04.2016 had received injuries which were

opined to be simple at the hands of the respondent.

10. The issue which needs judicial consideration is that whether on the

basis of the evidence led by the prosecution, the offence punishable under

section 308 IPC is actually made out or not.

11. In Ramesh V State 2010 (I) JCC 796, this Court altered the

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 conviction from 308/34 to 323/34 by holding that assault was not

premeditated and merely because an injury was found on the head, it cannot

be said that such an injury was caused with the intention to commit culpable

homicide. In Sunder V State 2010 (1) JCC 700, this Court altered the

conviction of the appellant from Section 308 to 323 IPC by holding that in

order to prove offence under Section 308 IPC, prosecution was required to

prove that the injury was caused with such intention or knowledge and under

such circumstances that if it had caused death, the act of appellant would

have amounted to culpable homicide not amounting to murder. In Raju @

Rajpal and others V State of Delhi 2014 (3) JCC 1894, this Court altered

the conviction from Section 308 to 323/34 by holding that the nature of

injuries were simple and injuries were not caused with the avowed object or

knowledge to cause death. In Ashok Kumar and another V State of Delhi

Crl. Appeal No. 17/2011 decided on 20.02.2015, this Court altered the

conviction of Section 308 IPC to Section 323/34 IPC and held that injuries

were opined by the doctor as simple caused by a blunt object. Nature of

injuries is not such which will be sufficient to indicate that the appellants

had any intention or knowledge that by this act they would have caused

death of complainant. In Pawan Chaddha V State Criminal Appeal

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 640/2011 decided on 27.01.2016 by this Court, the appellant was convicted

for offence under Section 308 and Section 323/34 IPC while the co-accused

were held guilty and convicted under Section 323/34 IPC. As per the MLC

following injuries were observed on person of the complainant:-

(i) CLW 8x2x.5 cms over central parieto occipital region.

(ii) Swelling and tenderness right forearm and wrist.

(iii) Abrasion 1x1 cm over right wrist.

One of issues which arises for consideration is whether the act of

appellant in causing injuries on the person of the victim, attracts ingredients

of offence under Section 308 IPC. It was observed as under:-

In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death.

It was further observed that the Trial Court has convicted the

appellant under section 308 IPC on the ground that the appellant initially hit

Signature Not Verified

By:JITENDRA Signing Date:15.09.2023 11:47:21 the complainant with a saria and again given a blow with a wooden leg of

the cot on vital part of the body i.e. head. There was no premeditation. The

entire incident took place on the spur of the moment. Injuries were opined to

be simple. The ingredients of section 308 IPC are not attracted and the case

falls within the ambit and scope of section 323 IPC.

12. It is appearing from the medical evidence that the PW-2/Sushila Devi

received simple injuries. The testimony of PW-5 reflects that PW-2/Sushila

Devi received a CLW over scalp 2x1cm and a CLW over left forearm 5x

7cm. PW-2/Sushila Devi at the time of admission, was found to be