A.K. Chawla JUDGMENT
A.K. Chawla, J.
1. By the instant Regular Appeal under Section 374 Cr.P.C., the appellant assails the judgment dated 14.12.2009 passed by the ld. ASJ (West-04), where-under, the appellant has come to be convicted for the commission of the offence under Section 307 IPC and vide the impugned order on sentence dated 06.01.2010 sentenced to 4 years RI and fine of Rs. 10,000/- ID 3 months SI while extending the benefit under Section 428 Cr.P.C.
2. Facts giving rise to the trial of the offence, for which the appellant faced trial, can be put in brief.
On 20.08.2002 at 4.00 P.M., on the receipt of information given by Ct. Bhim Singh from Hindu Rao Hospital that Ashok s/o Bhagirath was admitted in the hospital in the injured condition, DD No. 51-B dated 20.08.2002 was recorded at PS Model Town and on the receipt thereof, SI Pramod Gupta along with Ct. Shakeel went to the hospital and on collection of the MLC, the doctor declared the injured to be unfit for statement. As per the MLC, seven injuries with sharp edge weapon were found on the person of the injured Ashok. Injury no. 3 was stated to be on the neck. Thereafter, SI Pramod Gupta prepared the rukka for registration of the FIR giving the date and time of the occurrence of the incident as 20.08.2002 at 3.30 P.M., and the place of occurrence to be 206, Rajpura, Gurmandi, Delhi. On this, FIR No. 503/2002 PS Model Town came to be registered at 7.30 P.M. On the next day i.e. 21.08.2002, on the injured being declared fit for statement, his statement under Section 161 Cr.P.C., came to be recorded by the IO. According to the prosecution, the appellant had assaulted injured-Ashok Rao PW 8 with a knife in order to commit his murder. Motive attributed was a dispute in relation to a money transaction. Appellant was charged for the offence under Section 307 r/w 34 IPC. To prove its case prosecution examined PW 1 Ct. Rajesh Kumar; PW 2 Ct. Shakeel Ahmed; PW 3 Sh. Prem Sharma (Photographer); PW 4 HC Todar Singh; PW 5 HC Mulakh Raj; PW 6 SI Pramod Gupta; PW 7 Dr. Sanjay Kumar; PW 8 Sh. Ashok Rao; PW 9 Ct. Bhim Singh; another PW 9 HC Krishan Pal; PW 10 ASI Virender Singh; and, PW 11 Dr. R.M. Sahai and closed PE. Incriminating evidence was put to the appellant in his statement under Section 313 Cr. P.C. In his statement, he stated for having been falsely implicated by PW 8 Ashok Rao and sought to lead DE but did not lead any DE inspite of the opportunities granted. Vide the impugned judgment, the appellant came to be convicted of the commission of the offence under Section 307 IPC and was sentenced vide the impugned order on sentence.
3. As per the grounds of appeal, the Trial Court erred in appreciating the facts and the law in returning the finding of conviction and the sentence. To assert so, the appellant seeks advertence to the statement of the injured recorded under Section 161 Cr.P.C., and his deposition before Court to point out contradictions inter alia as regards the quantum of loan allegedly borrowed by him from the injured. As for the injuries sustained by the injured, the plea of the appellant is that these were self-inflicted in order to escape the charge of attempt to commit rape on his wife. Simultaneously, the appellant also asserts that he had also sustained injuries, when he tried to defend himself from the knife blows by the injured-Ashok Rao. Assailing the impugned judgment, a plea is also raised to the effect that the weapon of offence was not dangerous and any intention to commit murder could not be inferred by its use. Besides that, a plea is also raised that there were material contradictions and flaws in the evidence led by the prosecution and the prosecution had miserably failed to prove its case beyond reasonable doubt.
4. In the submissions of the ld. counsel for the appellant, the prosecution had failed to prove its case beyond reasonable doubt. To support such plea, it comes to be contended that while the prosecution had failed to examine any independent witness, the depositions of the prosecution witnesses were contradictory and the prosecution had failed to establish the case with which it approached the court. Also, in his submissions, the prosecution had failed to prove the nature of injuries sustained by the victim to be grievous. Adverting to the deposition of PW -4 HC Todar Singh, PCR, who has deposed for having reached the spot on the receipt of PCR call and having taken both the injured i.e. Ashok Rao and Ramveer to Hindu Rao Hospital, the ld. counsel for the appellant seeks to explain that the incident was outcome of Ashok Rao attempting to commit rape on Ramveer's wife. In that context, reference is made to FIR No. 502/02 u/s. 376/511 IPC.
5. In the submissions of Mr. Farooqui, ld. APP for State the incident was the offshoot of a money transaction between the appellant and the injured. In his submissions, the deposition of the injured PW -1 was unshaken and unrebutted besides finding support from the scientific evidence adduced on record. In the submissions of Mr. Farooqui, the injuries on the person of the injured were opined to be grievous in view of the fact that the injuries were on the neck and the abdomen and the opinion of the doctor for the injuries sustained by the injured being grievous was well proved by the deposition of doctor PW -11, who was conversant with the handwriting and signature of Dr. Rohit Aggarwal--who had opined the injuries to be grievous. In his submissions, Dr. Rohit Aggarwal had left the services of the hospital and his present whereabouts were not available. In addition thereto, he also contended that the infliction of injuries with a knife on the neck and the abdomen lead to irresistible conclusion that the injuries were grievous in nature. Mr. Farooqui also contended that the nature of the weapon of offence and the injuries inflicted reflect that the intention of the assailant was to commit murder and therefore, the conviction for the offence under Section 307 IPC did not suffer from any infirmity.
6. Date, time and place, where the injured PW 8 sustained injuries, is not in question. There is also no challenge as to the weapon with which the injured PW 8 sustained the injuries. Suffice to say, the appellant in his statement made under Section 313 Cr.P.C., has stated as under:
"Q. 11. It is in evidence against you that thereafter you stabbed PW 8 Ashok Rao with knife on his foot, hands, cheeks and neck and as a result of the injuries he had become unconscious. What have you to say?
A. When I returned after purchasing the medicines I saw PW 8 Ashok Rao assaulting my wife. He had made her lie down on the bed after tearing her clothes which she was wearing at that time. He had taken off his pajama also. Seeing this I gave him fist blows. In the meantime, he picked up a kitchen knife and started assaulting me with the knife. I tried to save myself from his blows and in the process he might have received some injuries on his person.
Q. 26 Why the PW s deposed against you?
A. PW 8 Ashok Rao himself is accused and in fact he should be punished instead of me. I merely acted in the given situation when he had assaulted my wife. I am innocent. I never made any disclosure statement before the police. Other witnesses are official and interested witnesses.
Q. 27 Why this case against you?
A. This is a false case made against me by the police on the false report made by PW 8 Ashok Rao."
Besides the foregoing statement, in the grounds of appeal, the appellant has stated as follows:
"D. THAT the ld. trial Court failed to appreciate and take into consideration that the alleged injuries on the person of the injured Ashok Rao are self inflicted injuries and he made false complaint to the police to escape the charge of attempt to commit rape of the wife of the petitioner.
E. THAT the ld. trial Court further failed to appreciate and take into consideration that the petitioner himself sustained injuries while he tried to defend himself from the knife blows of injured Ashok Rao."
Evidence led by the prosecution and the foregoing admissions, leave no doubt that PW 8-injured Ashok Rao sustained the subject injuries with knife/Churi Ex. P2. In the given situation, some inconsistency for the loan transaction amount being Rs. 2,000/- or Rs. 20,000/-, which can occur inadvertently, in any way looses significance. While the occurrence of the incident in which the injured PW 8 sustained the injuries is not in question, there is also no challenge as to the nature of injuries sustained by him in the incident, which are as follows:
"1. A sharp cut wound present over dorsum of right wrist about 1 cm x 5 cm.
2. An abrasion of 3 cm x 3 cm present in the first web space of left hand.
3. A sharp cut wound present over neck and transversely about 2 cm x 15 cm anteriorly.
4. A sharp cut wound present over right side of cheek about 2 cm x 3 cm.
5. A sharp cut of size 2 cm x 3 cm present over right eye brow.
6. A sharp cut wound of 2 cm x 2 cm present over posterior aspect of left forearm.
7. A sharp cut wound of 1 cm x 3 cm present over the neck lateral aspect (left)."
7. Though, the appellant has given different versions of the incident in his statement under Section 313 Cr.P.C., as also in the grounds of appeal, the very nature of injuries on the person of the injured-PW 8 cannot be said to be self-inflicted. Even no suggestion to that effect has come to be given either to the injured PW 8 or any of the doctors PW 7 or PW 11. Interestingly, the 1st I.O. PW 6 who has deposed for having collected MLCs of both injured Ashok Rao and accused Ramveer, has equally deposed that when he reached PS, he met Pammi-the wife of the appellant and she had stated that her husband Ramveer had caused injuries with a knife to Ashok Rao and that Ashok Rao had a sharp injury on his neck. Such deposition of PW 6 during cross is wholly unchallenged. It may be noted, the suggestion given to PW 6 during cross is only to the limited effect that there was no statement of anybody to the effect that injuries to Ashok Rao were caused with the intention to murder him. Such suggestion by itself does not dispel the deposition of PW 6 that the wife of Ramveer by herself had stated that the injuries with knife were inflicted upon Ashok Rao by Ramveer. In fact, such suggestion, has an inbuilt element of admission that the injuries sustained by the injured were the resultant effect of assault with knife by the appellant. The appellant on its part equally did not lead any evidence to rebut such evidence inspite of the opportunities availed. Thus, the bald plea of the appellant that the injuries sustained by the injured were self-inflicted, falls flat.
8. As regards the contention that the incident was the outcome of a sexual assault by the injured-PW 8 on the wife of the appellant, nothing emerges from the record to support such version. Suffice to say, the injured-PW 8 is acquitted of the charge under Section 376/511 IPC-an attempt to commit rape and there-against, no appeal is stated to be pending, and, for the reasons unexplained, inspite of being asked to place a copy of the said judgment before this Court, of which judicial note could be taken note of, the appellant has not chosen to put forth. Be that as it may, the appellant, inspite of the opportunities afforded, did not choose to even examine his wife to lend some credence to his version, if, the injured had either attempted or committed rape on his wife. The injured PW 8 in his examination-in-chief has categorically deposed for having visited the house of the convict-appellant on the date of the incident to collect the due amounts against the loan he had lent to the appellant. His such deposition that the subject incident was an outcome of the repayment of the loan extended by the injured-PW 8 to the appellant, though, cross-examined at length, is unshaken. Motive for assault by the appellant-that has come to be proved on record-is in consonance with the prosecution story and well established. Findings of the Trial Court that the assailant was the appellant and the weapon of offence used was the knife/Churi Ex. P2 thus cannot be faulted with. Any contention raised to the contrary is therefore rejected.
9. Coming to the nature of injuries, but for the preliminary medical examination vide MLC Ex.PW7/A and a doctor-who is not examined-having opined the nature of injury to be grievous, no cogent evidence as regards the nature of injury emerges from the record. MLC Ex.PW7/A was prepared by Dr. Amarjeet, who treated the injured after local examination by Dr. Amarjeet, nothing emerges from the record. Dr. Rohit Aggarwal, who opined for the injuries to be grievous, the prosecution failed to examine. Doctor PW 11, who identified the handwriting and the signatures of Dr. Rohit Aggarwal on the MLC Ex.PW7/A, was not even asked to explain the basis for the injury being termed grievous. The doctor-who opined the nature of injury to be grievous-was a vital witness to be examined inasmuch as it was him only, who could depose and explain as to the depth of the injury and as to whether the injury inflicted was dangerous or to say, endangered life to fall within the mischief of Section 320 IPC. Nothing of the kind however surfaces on record nor has come to be pointed out by the ld. APP during the course of hearing. There is also nothing on record to suggest that the injured suffered any fracture or dislocation of a bone. Equally, nothing emerges from the record that the injured PW 8 remained in severe bodily pain or was unable to follow his ordinary pursuits and therefore, the injury could be termed to be grievous hurt as defined under Section 320 IPC. In the given context, it would suffice to take note of the fact that the prosecution did not prove the discharge summary and the injured PW 8 in his examination-in-chief has deposed that he remained admitted in the hospital from 20.08.2002 to 24.08.2002. With the evidence so available on record, this Court has no hesitation to conclude that the prosecution had miserably failed to prove that the injury suffered by the injured PW 8 was grievous and therefore, the conclusion arrived at by the Trial Court to that effect was not sustainable.
10. In the light of the foregoing conclusions, the Trial Court having convicted the appellant for the offence under Section 307 IPC, it becomes imperative to ascertain from the record as to whether the appellant actually intended to commit murder of PW 8. Offence of attempt to murder is a serious offence. In proving commission of such an offence, the prosecution is required to prove the basic ingredients of murder short of death. Does the instant case get even close to such a situation, the Trial Court has not given any serious thought to it. The case in hand is not one, where, the prosecution even suggests that the appellant assaulted PW 8 with any premeditated mind. Who first picked the knife and wherefrom, the prosecution equally failed to prove. Knife Ex.P-2 is a household knife, which was found bent, when recovered. This also does not suggest that the assailant intended murder with the use of such weapon. As per the unshaken deposition of injured PW 8, on the date of the incident, he had gone to the house of the appellant to get the outstanding part to the loan and there both of the them had liquor and thereafter, when he slept, the appellant tried to steal a writing from him in relation to the subject loan and when he woke up and resisted, the appellant stabbed him with knife. Such deposition and the extent of injuries--which are not shown to be such, which could be fatal, by no means suggest that the appellant had an intention to commit murder. For the foregoing reasons, the conviction of the appellant for the commission of the offence under Section 307 IPC cannot be sustained. Appellant however cannot escape the commission of the offence under Section 324 IPC.
11. Commission of the offence under Section 324 IPC invites punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Subject incident, the court has no hesitation to observe, occurred at the spur of the moment. It emerges from the record that the appellant was beyond 21 years of age at the time of occurrence of the incident and has undergone incarceration for more than three months besides facing trial since the year 2002 i.e., as of now almost 17 years have gone by. Nothing emerges from the record nor any criminal antecedent of the appellant has come to be pointed out during the course of hearing. In the considered opinion of the court the appellant therefore deserves to be released on probation of good conduct instead of sentencing him at once to any punishment.
12. For the foregoing reasons, the impugned judgment of conviction under Section 307 IPC is modified to Section 324 IPC and the impugned order on sentence is set aside and the appellant is directed to be released on probation of good conduct on his entering into a bond of Rs. 50,000/- with one surety of the like amount, to appear and receive sentence when called upon during a period of two years from today and in the meantime to keep the peace and be of good behaviour. Bond to such effect shall be executed by the appellant to the satisfaction of the trial court and for the said purpose, the appellant shall appear before the trial court on 25-7-2019.
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