IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. A.No.317/2003
Judgment delivered on: 22.10.2008
22.10.2008
Rajinder Kumar
...... Petitioner.
Through: Ms. Mamta Mayer, Advocate for appellant.
versus
State (Govt. NCT of Delhi) ... Respondent
Through: Mr. Vinay Kumar Gupta, R-2.
Ms. Fizani Husain, APP for state.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J. (Oral)
By way of this appeal filed under Section 374 Cr.P.C. the
appellant seeks to challenge the judgment and order on sentence dated 24.4.2003
passed by the court of Sh. Babu Lal, Addl. Sessions Judge, Delhi arising from
FIR No. 332/97 registered under Section 307/34 IPC at police station Dabri.
Brief facts which led to the filing of the Challan by the police
are as under:-
Muni Lal, father-in-law of accused Rajinder Kumar lodged a report with
P.S. Dabri alleging that he had been employed as driver in B.E.L. Ghaziabad and
in the same company his daughter had also been employed. They allegedly used to
catch Charted Bus to go to their place of employment from Pankha road opposite
Gandhi Market. To reach there they had to pass through Gandhi Market. From
that very bus stop his daughter Sangita who was undergoing training course of
ANM also used to catch bus. Santosh allegedly was crossing the road to reach
bus stop at Pankha road when a scooter hit his father from behind as a result of
which he fell down. On that scooter his son-in-law Rajinder, his elder brother
Dalip and another person were sitting having hockey sticks in their hands.
Accused Rajinder started hitting on his legs with hockey stick. At that time
one Maruti van was also standing there in which three persons were sitting and
who were saying that it was the opportune time that the complainant should be
finished. Dalip and his third associate also started beating the complainant
with hockey sticks as a result of which he fell unconcious. The identity of
third associate of accused persons is alleged to be one ?Chaudhary? and who had
threatened him outside court on 26.5.1997. On the basis of this complaint a
case was registered and investigation commenced. Prior to lodging the report
message was passed on to the police regarding the incident. PCR reached the
spot and removed the injured to Safdarjung Hospital where injured was medically
examined. On medical examination fractures were found on both the legs of the
complainant. Statements of witnesses were recorded and accused persons were
arrested. Site plan was prepared. After investigation the police came to the
conclusion that a case under S. 307/34 IPC was made out against all the three
accused persons. Accordingly, they filed the challan against the accused
persons.
The prosecution had examined as many as eight witnesses in all and
out of those, three are eye-witnesses who were alleged to have witnessed the
said incident. Based on the prosecution evidence and the evidence led by the
defence, the learned court of Sessions Judge found the appellant guilty for
committing the offence punishable under Section 308 IPC. The court found that
no case was proved by the prosecution as against the other two accused persons,
namely, Dalip and Gulshan who were accordingly acquitted of the charges. Based
on the said conviction the accused was sentenced to undergo R.I. for a period
of three years along with imposition of fine of Rs.500/-. The fine of Rs.500/-
has already been paid by the appellant. Assailing the said conviction,
counsel for the appellant contends that based on the same evidence led by the
prosecution, the Sessions Court had acquitted the other two accused persons
while, convicted the present appellant. Counsel for the appellant further
submitted that even if it is accepted that the prosecution was successful in
proving its case, then, also the offence under Section 308 IPC is not made out
and at best it could be offence punishable under Section 325 IPC. The
contention of the counsel for the appellant is that admittedly the complainant
had received fracture injuries in the lower part of his legs, and, thus there
was no intention on the part of the appellant to cause death of the complainant
which is the necessary ingredient so as to attract Section 308 IPC. Counsel
for the appellant has drawn my attention to the testimony of PW 1 Munni Lal,
complainant/injured who had deposed that he could not tell as to who was driving
the offending vehicle as when he was about to cross the road, one two wheeler
scooter hit him from behind. Counsel for the appellant also referred to the
testimony of PW 8 Dr. Sita Laxmi who in his statement stated that the
complainant had received injuries in his lower legs and the same were caused by
some blunt object. The argument of the counsel for the appellant is that with
such injuries in the lower legs of the claimant/injured it could not be
inferred that such injuries were caused with the intention to cause death of the
complainant. Based on above submissions counsel for the appellant states that
the appellant has been wrongly convicted under Section 308 IPC.
Mr. Pawan Sharma, APP for the State, on the other hand contends
that the case of the prosecution is that the complainant had received injuries
when he was hit by a two wheeler scooter from behind. It has also been proved
by the prosecution that the injured had received fracture injuries in his lower
limbs. The MLC has also been proved on record as Ex. PW 8/A. The counsel for
the State thus states that the Appellant has been rightly convicted and
sentenced Under Section 308 IPC.
I have heard learned counsel for the parties and perused the record.
To bring home the offence under S. 308 IPC, the prosecution must
prove that :-
( i ) the death of a human being was attempted;
( ii ) such attempt was of the accused; and
( iii ) the act was done with intention or knowledge and under the
circumstances that if it had caused death, the act would amount to culpable
homicide not amounting to murder.
In this regard the Apex Court also in Sunil Kumar Vs. NCT of Delhi ?
(1998) 8 SCC 557 observed as under:-
?4. The view taken by the High Court is obviously erroneous because
offence punishable under Section 308 IPC postulates doing of an act with such
intention or knowledge and under such circumstances that if one by that act
caused death, he would be guilty of culpable homicide not amounting to murder.
An attempt of that nature may actually result in hurt or may not. It is the
attempt to commit culpable homicide which is punishable under Section 308 IPC
whereas punishment for simple hurts can be meted out under Sections 323 and 324
and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these
offences are different. The High Court was thus not well advised to take the
view as afore-extracted to bring down the offence to be under Sections 323/34
IPC and then in turn to hold that since that offence was investigated by the
police without permission of the magistrate, the proceedings under that
provision be quashed. For the view afore-taken as to the commission of the
offence under Sections 308/34 IPC, it is not necessary to dwell on the
correctness of the second part of the order relating to quashing of proceedings
under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to
be and is hereby quashed, restoring the status quo ante of the trial remaining
with the Additional Sessions Judge to proceed in accordance with law.?
In the instant case the injury disclosed in the MLC is in respect of
assault on the lower legs of the complainant. Once the complainant had received
injuries on his lower legs and that too fracture injuries, it is difficult to
believe that appellant had any intention to kill or murder the complainant
unless any cogent evidence to this fact is adduced and proved by the
prosecution. Admittedly no such evidence is on record to prove that the
appellant had any such intention to kill the complainant.
In view of the above discussion no case under Section 308 IPC is
made out against the appellant. At best, the appellant could be held guilty for
an offence under Section 325 IPC. Resultantly, the impugned judgment and
order on sentence is modified to the extent of holding the appellant guilty for
committing offence under Section 325 of the Indian Penal Code. Without giving
any direction to modify the substantive sentence and fine as imposed by the
learned ASJ the appeal of the appellant is allowed in terms of the directions
given above.
October 22, 2008 KAILASH GAMBHIR, J.
pkv
Crl.A.No. 317/2003
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