Delhi District Court
A Man Committing Any Of The Following ... vs State Of Uttar Pradesh And Another on 29 June, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH EAST
KARKARDOOMA COURTS, DELHI
SC 134/2018
CNR No.DLNE01-001667-2018
FIR: 658/17
POLICE STATION: KARAWAL NAGAR
UNDER SECTIONS: 354/354-A/307/323/34 IPC
STATE
V
1. AKASH @ AKKU
S/O SUDESH KUMAR @ SURESH KUMAR
R/O B-100, GALI NO 3
HARIZAN BASTI
KARAWAL NAGAR
DELHI
2. SHIV KUMAR @ SHIBU
S/O RAGHURAJ @ YUGRAJ
R/O A-10, GALI NO 2
HARIZAN BASTI
KARAWAL NAGAR
DELHI
...........ACCUSED
INSTITUTION: 24.04.2018
ARGUMENTS: 28.01.2020
1/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17
JUDGMENT:29.06.2020 JUDGMENT
1. Akash (hereinafter referred to as "the complainant") on 28.12.2017 at about 3:20 pm along with friend Sohit (hereinafter referred to as "the injured") and his wife P (hereinafter referred to as "the victim") was walking on road situated in front of Banke Bihari Sweets shop, Mukhiya Market (hereinafter referred to as "the spot"). The victim was walking ahead of the injured and the complainant. Three/four boys were standing there who teased the victim by uttering indecent words which was not liked by the injured and the complainant. The complainant asked those boys not to behave in indecent manner then one boy caught hands of the victim and misbehaved and molested her. The complainant and the injured objected to those acts then said boys started to beat and abuse the injured and the complainant and uttered their names as Shibu, Akash and Ajay (hereinafter referred to as "the accused") but did not utter the name of fourth boy. The accused Akash caught hold of victim and molested her. The accused Ajay assaulted the injured with a danda (stick) used for beating dhol (drum). The accused Shibu took out a knife from pocket and inflicted blows on left side of chest, right side of abdomen and left side of thigh of the complainant with an intent to kill him. The fourth boy whose name was not disclosed hit the complainant with a brick on head. They fled from the spot after assaulting the complainant, the injured and the victim. Mobile phone of the victim make Samsung J1, SIM no 7065385642 and 9069428742 was lost in the incident. PCR was called and the complainant, the injured and the victim were removed to JPC hospital.
HC Manoj Bhati on 28.12.2017 after receipt of DD no 42B along with Ct. Harish reached at the spot where he came to know that three injured persons have already been removed to JPC hospital then they reached at JPC Hospital. HC Manoj Bhati collected MLC and exhibits in hospital and also recorded statement 2/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 of the complainant. Rukka was prepared. FIR bearing no 658/17 under sections 354/354A/307/323/34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") was registered. ASI Suman Kumar was assigned further investigation who went to the spot. Weapons of offence i.e. knife, danda (stick) used for beating dhol (drum) and brick could be not be traced at the spot on day of incident. The accused Shiv Kumar @ Shibu and Akash @ Akku were arrested. The accused Shiv Kumar @ Shibu on 31.01.2017 got recovered the knife used in the commission of offence from his house which was seized after preparation of sketch. The accused Shiv Kumar @ Shibu disclosed about involvement of Rohit. The accused Rohit was arrested but he was not identified by the injured during the TIP proceedings. The accused Rohit was ordered to be released vide order dated 15.01.2018. The accused Ajay was apprehended on 12.01.2018 but found to be juvenile and was sent to Juvenile Justice Board. The accused Aakash @ Akku and Shiv Kumar @ Shibu after the completion of investigation were charge sheeted for offences punishable under sections 354/354A/307/323/34 IPC. The charge sheet was filed before the concerned court.
2. The copies of charge sheet and annexed documents were supplied to the accused Aakash @ Akku and Shiv Kumar @ Shibu in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). The concerned Metropolitan Magistrate vide committal order dated 11.04.2018 committed the case to the Court of Sessions and assigned to this Court for trial in accordance with law.
3. The charge for the offences punishable under sections 323/354-A/307/34 IPC was framed against the accused Aakash @ Akku and Shiv Kumar @ Shibu vide order dated 24.04.2018 on allegations that on 28.12.2017 at about 3.20 pm the accused Aakash @ Akku and Shiv Kumar @ Shibu along with Ajay (since juvenile) and Rohit (since released) in furtherance of their common intention made sexually coloured remarks against the victim, caused simple injuries to the injured and inflicted knife blows to the complainant. The accused Aakash @ Akku and Shiv Kumar @ Shibu pleaded not guilty and claimed trial.
3/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17
4. The prosecution examined Akash as PW1, P as PW2, Sohit as PW3, Dr. Nikhil Kumar as PW4, Dr. Meghali Kelkar as PW5, Ct. Harish as PW6, ASI Satish Pal as PW7, HC Pramod Kumar as PW8, HC Deshpal Singh as PW9, HC Manoj Bhati as PW10 and ASI Suman Kumar as PW11.
PW1 Akash is the complainant. PW2 'P' and PW3 Sohit are the victim and injured. PW4 Dr. Nikhil Kumar surgically examined the complainant on 28.12. 2017. PW5 Dr. Meghali Kelkar on 28.12.2017 medically examined the complainant and injured P and Sohit. PW6 Ct. Harish participated in investigation with investigating officers HC Manoj Bhati and ASI Suman Kumar. PW7 ASI Satish Pal being Duty Officer registered FIR bearing no 658/17 under sections 354/354A/307/323/34, PW8HC Pramod Kumar being MHC (M) was entrusted with exhibits/case property. PW-9 HC Deshpal deposited two sealed pullandas to FSL Rohini. PW10 HC Manoj Bhati was first investigating officer. PW11 ASI Suman Kumar was assigned investigation after registration of FIR.
The prosecution proved seizure memo of clothes of the complainant as Ex.PW10/A, MLC of the complainant as Ex.PW4/A, MLC of the victim and the injured as Ex/PW5/A and Ex. PW5/B, statement of the complainant as Ex.PW1/A, Copy of FIR is Ex.PW7/B, endorsement on rukka as Ex.PW7/A, Certificate under section 65B of Indian Evidence Act, 1872 as Ex.PW7/C site plan of spot as Ex.PW1/B, arrest and personal memos of the accused Shiv Kumar @ Shibu as Ex.PW1/C and Ex.PW1/D, disclosure statement of the accused Shiv Kumar @ Shibu as Ex.PW6/A, arrest and personal memos of the accused Akash @ Akku as Ex.PW1/E and Ex.PW1/F, disclosure statement of accused Akash @ Akku as Ex.PW6/B, sketch of knife as Ex.PW6/D and its seizure memo as Ex.PW6/E, site plan of place of recovery of knife as Ex.PW6/H, arrest and personal memos of the accused Rohit as memo Ex.PW6/F and Ex.PW6/G, disclosure statement of the accused Rohit as Ex.PW6/J and entries in register no. 19 as Ex. PW8/A. PWs identified Jean and shirt worn by the complainant at time of incident as Ex. P1 and Ex.P2 and knife as Ex.P1. The prosecution evidence was ordered to be closed vide order dated 02.05.2019.
4/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17
5. The respective statement of the accused Shiv Kumar @ Shibu and Akash @ Akku were recorded under section 313 Cr.P.C. vide proceedings dated 16.08.2019. The accused denied the incriminating evidence and pleaded false implication and innocence. The accused Shiv Kumar @ Shibu stated that the knife was planted in the police station and disclosure statement was falsely recorded by the police officials.
6. Sh. Masood Ahmad, Additional Public Prosecutor for the State and Sh. B. S. Choudhary, Advocate for the accused Akash @ Akku and Sh. R. C. Verma, Advocate for the accused Shiv Kumar @ Shibu heard. Record perused.
7. Section 354A IPC deals with sexual harassment and punishment for Sexual harassment. It reads as under:-
1. A man committing any of the following acts:-
i. physical contact and advances involving unwelcome and explicit sexual overtures; or ii. a demand or request for sexual favours; or iii. showing pornography against the will of a woman; or iv. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 354 IPC is attracted when modesty of a woman is outraged or is likely to be outraged coupled with an assault or criminal force. The assault can be by mere gesture or preparation intending or knowing that it is likely that such gesture or preparation will cause any person to apprehend use of criminal force. This is an act more than mere physical contact with advances involving unwel-
5/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 come and explicit sexual overtures. Section 354A IPC is mere physical contact with advances. The term 'explicit sexual overture' is relevant for purpose of of- fence under Section 354A IPC. The prosecution to make out a case under 354A IPC has to show that the act of accused was embedded with explicit sexual overtures. Every kind of physical contact cannot be covered under Section 354A IPC. The use of word 'and' in Section 354A IPC requires that there should be a physical contact with sexual advances/overtures. Therefore, section 354A IPC is applicable where the accused does not stop after committing a single isolated act of criminal force but rather goes on to commit several other similar acts which end up converting his actions into advances of a sexual overture.
8. The prosecution to prove its case under section 354A IPC examined the com- plainant as PW1, the victim as PW2 and the injured as PW3. The role of a witness is paramount in the Criminal Justice delivery System. A witness has relevant infor- mation about a crime and an important constituent of the administration of justice. The witness by giving evidence linking to the charge of the offence performs a sa- cred duty of assisting the court to discover the truth. A witness performs an impor- tant public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. The infor- mation provided by witnesses becomes part of the evidence. The evidence deter- mines whether the accused actually committed the crime. A witness by giving evi- dence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensa- tion of justice. The court after considering evidence decides whether the accused is guilty or innocent. The Supreme Court in Mahender Chawla V Union of India, Writ Petition (Criminal) No. 156 / 2016 decided on 05th December, 2018 it was observed as under:-
Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The in- strument of evidence is the medium through which facts, ei- ther disputed or required to be proved, are effectively con- veyed to the courts. This evidence in the form of documen- 6/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 tary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with convic- tion of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the cre- dence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system.
9. The complainant PW1 deposed that on 28.12.2017 at about 2.30 pm he along with the injured PW3 and the victim PW2 were present in Shiv Vihar Market where the accused ShivKumar @ Shibu and Akash @ Akku along with two associates met them. The accused Shiv Kumar @ Shibbu and one of his associate start to misbehave with the victim PW2. The complainant PW1 and the injured PW2 objected, then, they again caught hand of the victim PW2. The complainant PW1 in cross examination conducted on behalf of the accused Shiv Kumar @ Shibu denied suggestion that victim was never molested in any manner. The victim PW2 deposed that she along with her husband i.e. the injured PW3 and the complainant PW1 were roaming in the area on 28.12.2017 at about 03-03.30 pm and she was ahead of the injured PW3 and the complainant PW2 then one boy aged about 12-13 years old started to dance before her and the accused Shiv Kumar @ Shibu and the accused Akash @ Akku were sitting nearby. The complainant and the injured asked said boy about reason of his dance then the accused Shiv Kumar @ Shibu and the accused Akash @ Akku asked the injured PW3 to leave the spot then a scuffle started between the accused Shiv Kumar @ Shibu and the accused Akash @ Akku and the injured PW3. The injured PW3 deposed that on 28.12.2017 at noon time he along with the victim PW2 and the complainant PW1 was roaming near Mukhiya market. The victim PW2 was little bit ahead of them. The accused Shiv Kumar @ Shibbu and the accused Akash @ Akku along with one short structured person were present there and said short structured person teased the victim and thereafter scuffle took place.
10. The combined analysis of respective testimony of the complainant PW1, the victim PW2 and the injured PW3 proved that they on 28.12.2017 at about 3/3.30 7/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 pm were roaming near spot where the accused Shiv Kumar @ Shibu and the accused Akash @ Akku along with two associates were present. One of their associate who was short structured caught hold of the victim PW2 and teased her. Section 354A IPC is applicable when physical contact is coupled with advances but every physical contact cannot be covered under Section 354A IPC. The prosecution has to prove that the act of the accused of physical contact was embedded with explicit sexual overtures. The accused does not stop after committing a single isolated act of criminal force but rather goes on to commit several other similar acts which end up converting his actions into advances of a sexual overture. The acts of the accused Shiv Kumar @ Shibu and the accused Akash @ Akku as complained by the victim and other prosecution witnesses do not fall within ambit of section 354A. The prosecution could not explained and proved that how the victim PW2 was teased. The victim PW2, the complainant PW1 and the injured PW3 only made vague allegation regarding teasing of the victim PW2. Mere holding of hand of the victim PW2 does not fall within ambit of section 354A IPC. The prosecution could not prove offence under section 354A IPC against the accused Shiv Kumar @ Shibu and the accused Akash @ Akku.
11. The offence punishable under Section 307 IPC falls in the category of heinous and serious offences and is to be generally treated as crime against the society and not against the individual alone. Section 307 IPC is about attempt to murder and reads as under:-
307. Attempt to murder.--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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
12. The prosecution to prove offence under section 307 IPC examined the complainant PW1, the victim PW2 and the injured PW3 who supported case of the prosecution. The complainant PW1 deposed that on 28.12.2017 at about 2.30 p.m. he along with the injured PW3 and his wife i.e. the victim PW2 were present at 8/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 the spot where the accused Shiv Shankar @ Shibu and the accused Akash @ Akku along with their two associates misbehaved with the victim PW2. The complainant PW1 and the injured PW3 raised objections then the accused Shiv Shankar @ Shibu and the accused Akash @ Akku along with their two associates started to beat the complainant PW1 and the injured PW3 with kicks and fists. The accused Shiv Kumar @ Shibu took out a knife and the accused Akash @ Akku caught hold of the complainant PW1. The accused Shiv Kumar @ Shibbu inflicted knife injury on chest, stomach and thigh of the complainant PW1. One of their associate picked up a brick and hit on head of the complainant PW1. The complainant PW1 in cross examination deposed that he was repeatedly given knife blows as well as fist and kick blows and denied suggestions that some persons from the public had given beatings to him as he was behaving badly in the market or that he was not beaten by the accused. The victim PW2 deposed that she on 28.12.2017 at around 03- 03.30 pm along with her husband i.e. the injured PW3 and the complainant PW1 were roaming near spot and she was ahead of the injured PW3 and the complainant PW1. One boy started to dance before the victim PW2 then injured PW3 and the complainant PW1 objected dancing by said boy. A scuffle took place between the accused Shiv Kumar @ Shibu and the accused Akash @ Akku and the complainant PW1 and the injured PW3. The complainant PW1 during scuffle sustained knife injuries on stomach, thigh and on the left side of stomach. The injured PW3 also sustained injury from danda (stick). The victim PW2 in cross examination deposed that scuffle lasted for about one hour. The victim PW2 denied suggestions that no incident had happened with them or that accused were not involved in the incident or that they were attacked by the public persons or that they were not assaulted by the accused. The injured PW3 deposed that on 28.12.2017 at noon time, he along with his wife i.e. the victim PW2 and the complainant PW1 were roaming near spot and the victim PW2 was little bit ahead of them. The accused Shiv Kumar @ Shibu and the accused Akash @ Akku were present there along with one short structured person who teased the victim PW2. The complainant PW1 and the injured PW3 raised objection then the accused Shiv 9/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 Kumar @ Shibu and the accused Akash @ Akku gave beatings to them. The complainant PW1 sustained knife injury and also sustained injury on his head. The injured PW3 was also hit by a danda (stick). The injured PW3 in cross examination deposed that they were discharged from the hospital after about 30 minutes. The injured PW3 denied suggestions that no quarrel took place with the accused or that the complainant PW1 was not stabbed by accused or that the complainant PW1 received injury by falling on some sharp object or that the complainant had a quarrel with the public persons or that accused did not give any stab injury to the complainant PW1 or that a quarrel took place between the complainant PW1 and public persons and public persons assaulted the complainant PW1.
13. The prosecution to prove the injuries sustained by the complainant PW1, the victim PW2 and the injured PW3 examined Dr. Meghali Kelkar as PW5 who on 28.12.2017 medically examined the complainant PW1, the victim PW2 and the injured PW3 with history of physical assault vide MLC Ex.PW4/A, MLC Ex.PW5/A and Ex.PW5/B. PW5 Dr. Meghali Kelkar on examination of the complainant PW1found following injuries:-
i. Lacerated wound on left parietal region.
ii. Incised wound superficial subcutaneously on left antero lateral chest.
iii. Incised wound on right lower lateral back measuring 1x0.2 c.m. in posterior axillary line.
iv. Incised wound on left antero lateral thigh.
The complainant was referred to SR, Surgery for further evaluation, management, depth assertion and opinion. The victim PW2 on medical examination was found having red abrasion on right face 1x0.2 cm which was opined to be simple in nature. The injured PW3 on medical examination was found having red, blue abrasion contusion 2x2 cm with local raised swelling on left forearm and red abrasion on right hand with local swelling. The injured PW3 was referred to SR, Ortho for further management and treatment. The prosecution also examined Dr. Nikhil Kumar as PW4 who on 28.12.2017 10/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 surgically examined the complainant PW1who was referred to SR Surgery for further evaluation, depth assertion, management and opinion, found following wounds:-
i. Clean lacerated wound 2 cm x 0.2 cm in left parietal region ii. Incised wound 2 cm x 0.2 cm in left anterolateral chest wound iii. Incised wound 3 cm length in left anterolateral thigh iv. Right iliac fossa back 1 x 0.2 cm incised wound in posterior axillary line.
PW4 Dr. Nikhil Kumar opined nature of injuries as simple.
14. The following facts are appearing from combined testimonies of the above referred PWs:-
i. The complainant PW1, the victim PW2 and the injured PW3 on 28.12.2017 at about 3.00 pm were present at the spot where the accused Shiv Shankar @ Shibu and the accused Akash @ Akku along with their two associates misbehaved with the victim PW3. The complainant PW1 and the injured PW3 raised objections then they beat the complainant PW1 and the injured PW3 with kicks and fists. The accused Shiv Kumar @ Shibbu inflicted knife injury on chest, stomach and thigh of the complainant PW1. The victim PW2 and the injured PW3 also received injuries.
ii. The complainant PW1, the victim PW2 and the injured PW3 examined by PW5 Dr. Meghali Kelkar with history of physical assault vide MLC Ex.PW4/A, MLC Ex.PW5/A and Ex.PW5/B. The nature of injuries sustained by the complainant PW1, the victim PW2 and the injured PW3 was opined to be simple.
15. The counsel for the accused Shiv Kumar @ Shibu argued that no public person was included in the investigation. The Additional Public Prosecutor argued that the testimonies of the complainant PW1, the victim PW2 and the injured PW3 are sufficient to establish guilt of the accused and non-inclusion of any public is not fatal to the case of prosecution. The complainant PW1 in cross examination deposed that many public persons were present at the spot but none came forward to save him. The police did not record statement of any other person. The victim 11/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 PW2 deposed that the spot was a mixed commercial as well as residential area and she requested the public persons to help but none came forward. The police did not record the statement of anyone but made inquiries from the public persons. The injured PW3 in cross examination deposed that the spot was near to Banke Bihari Sweet Shop and many public persons were present there. The public persons did not come for their rescue. PW10 HC Manoj Bhati who went to the spot to conduct initial investigation deposed that he requested some shopkeepers near the spot but none of them came forward and also did not disclose their names. The owner of Banke Bihari Sweet shop was not present at the time incident. PW10 HC Manoj Bhati made inquiries from the customers of the shop but did not make inquiry from the permanent employees of nearby shops. PW10 HC Manoj Bhati denied suggestion that he did not make inquiry from any public person at the spot. It is proved that area of incident was commercial cum residential area and many shops were situated there. Many public persons were gathered at the spot at the time of incident. PW10 HC Manoj Bhati did not include any public person in investigation after reaching the spot from hospital.
16. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses.
The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact.
12/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
17. The prosecution case is primarily resting on testimonies of the complainant PW1, the victim PW2 and the injured PW3. The evidence on the facts of each case has to be analyzed and conclusions drawn, and there cannot be pigeon - holding of evidence on any set formula. In criminal cases court should not adopt mechanical approach in appreciating evidence of prosecution. The broad features of 13/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 prosecution case, the probabilities and normal course of human conduct of prudent person and some of the factors which are always kept in mind while evaluating the merit of the case. The evidence of an injured witness has to be accorded great weightage and a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In Shivalingappa Kallayanappa V State of Karnataka, 1994 Supp (3) SCC 235 it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of MP V Mansingh, (2003) 10 SCC 414, the Supreme Court observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. In Abdul Sayeed V State of MP, (2010) 10 SCC 259, the Supreme Court held that 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. The Supreme Court took similar view in Jarnail Singh V State of Punjab, (2009) 9 SCC 719 that the special evidentiary status is accorded to the testimony of an injured accused. In State of Uttar Pradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the statement of an injured witness was expressed in the following 14/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 words:-
The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
In Vijay & another V State, Crl. A. No. 83/2000 decided on 15.09.2015, the High Court of Delhi observed as under:-
It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else.
The Supreme Court in Duleshwar & another V the State Of M.P. (Now Chhattisgarh), Criminal Appeal No. 1813-1815 / 2017 decided on 21 st January, 2020 discussed two-witness theory which was adopted in case Binay Kumar Singh V State of Bihar,1997 1 SCC 283 wherein it was held when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. It was observed as under:-
It is the quality of evidence that matters and not the quantity; and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident; and when a witness deposes in general terms, it would be useful 15/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 to adopt the test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question. However, even if adopting such a test of consistency, what is to be looked for is the 'consistent account of the incident'; and the requirement of consistency cannot be overstretched as if to search for repetition of each and every name of the accused in each and every testimony. In other words, the comprehension of overall evidence on record is requisite; and mere counting of heads or mere recitation of names or omission of any name in the testimony of any particular witness cannot be decisive of the matter. In such facts and circumstances, even the relevance of the corroborating facts and factors like that of recovery of weapons or any other article co-related with the crime in question cannot be ignored altogether.
18. The respective testimonies of the complainant PW1, the victim PW2 and the injured PW3 are reliable, trustworthy, narrative of relevant facts connected or related with commission of offence, consistent and corroborating each other on material particulars and are not suffering from any infirmity and can be safely relied on. If PW10 HC Manoj Bhati did not include any public person in investigation it is not fatal to the case of the prosecution. There is no legal force in argument advanced by the counsel for the accused Shiv Kumar @ Shibu that case of prosecution is bad for want of non-inclusion of any public person in investigation.
19. The counsel for the accused Akash @ Akku argued that there are contradictions in respective testimonies of prosecution witnesses which are raising serious doubts as to the prosecution case and referred testimonies of the complainant PW1, the victim PW2 and the injured PW3. The complainant PW1 deposed time of incident at about 2-30 pm. The victim PW2 deposed that it was about 3/3.30 pm while the injured PW3 deposed that it was noon time. The complainant PW1 deposed that one of the associates of the accused Shiv Kumar @ Shibu misbehaved with the victim PW2 while the victim PW2 deposed that one boy aged about 12-13 years started to dance before her and due to this reason scuffle took place. The injured PW3 deposed that a short structured person teased the victim PW2. The complainant PW1 was treated in the hospital for 2-3 hours.
16/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 The injured PW3 deposed that they were discharged from the hospital after about 30 minutes. The complainant PW1 in cross examination deposed that the police came at the spot after about 30 minutes and the incident lasted for about 15 minutes and the victim PW2 deposed that PCR came to the spot after about one hour. The complainant PW1 deposed that the complainant PW1, the victim PW2 and the injured PW3 were going to Vijay Vihar for purchasing of clothes and roaming. The victim PW2 deposed that they were going to the house of someone for taking the house on rent. The injured PW3 deposed that they were roaming at the spot. The Additional PP argued that the minor contradictions in respective testimony of prosecution witnesses are not fatal to the prosecution.
20. Mere marginal variations in the statements of witnesses cannot be dubbed as improvements. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48held as under:-
When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
The Supreme Court in Bhagwan Jagannath Markad and oth- ers V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.
Discrepancies may arise due to error of observations, loss of 17/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
It is apparent from respective testimonies of the complainant PW1, the victim PW2 and the injured PW3 that they received injuries in caused by the accused Shiv Kumar @ Shibu and the accused Akash @ Akku and their associates in furtherance of their common intention. The discrepancies as pointed out by the counsel for the accused Akash @ Akku are minor and insignificant and do not have any fatal effect on the prosecution case.
21. The counsel for the accused Akash @ Akku argued that the complainant PW1 did not assign any specific role to the accused Akash @ Akku and implicate the accused Shiv Kumar @ Shibu for inflicting injuries to him. Section 34 IPC deals with common intention and the acts done by several persons in furtherance of Common intention. It provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. Section 34 IPC does not state for any specific offence. It only lays down the rule of evidence that if two or more persons commit a crime in order of common intention, each of them will be held jointly liable. Common intention under Section 34 IPC is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such act is done in furtherance of the common intention. Common intention cannot be confused with similar intention. To establish section 34 IPC pre-consent, presence and participation in respect of each accused must be established (See: Jagan Gope & others V State of West Bengal CRA 389/2012 decided on 16th December, 2019 decided by the Calcutta High Court). The complainant PW1 deposed that the accused Shiv Kumar @ Shibbu took out a knife and the accused Akash @ Akku caught hold of me and thereafter the accused Shiv Kumar @ Shibbu inflicted knife injury on his chest, stomach and thigh. The victim PW2 deposed that during scuffle the complainant PW1 sustained knife injury on stomach, thigh and left side of stomach but could not see who has assaulted the 18/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 complainant PW1 with knife. The injured PW3 deposed that the complainant PW1 sustained knife injury but he could not tell who inflicted injuries to the complainant PW1. The complainant PW1 specifically deposed that the accused Akash @ Akku caught hold of him and then the accused Shiv Kumar @ Shibu inflicted knife injuries to him. The accused Shiv Kumar @ Shibu and the accused Akash @ Akku were present at the spot at the time of incident and they together with other associates indulged in scuffle with the complainant PW1, the victim PW2 and the injured PW3. The common intention was developed at the spot at the time of incident. The accused Akash @ Akku was equal partner in infliction of knife injuries to the complainant PW1. There is no legal force in arguments advanced by the counsel for the accused Akash @ Akku that the complainant PW1 did not assign any role to the accused Akash @ Akku and is not vicarious liable for offence. The complainant PW1 specifically deposed that the accused Akash @ Akku caught hold of him when the accused Shiv Kumar @ Shibu inflicted knife injuries to him.
22. The defence counsels argued that the injuries as mentioned in MLC Ex. PW4/A, Ex.PW5/A and Ex. PW5/B pertaining to the complainant PW1, the victim PW2 and the injured PW3 are not sufficient to cause death of the injured PW2 in ordinary course of nature and are simple in nature. Whether the nature of injuries is relevant to constitute offence punishable under section 307 IPC was considered by the superior courts. Earlier it was observed that nature of the injury helps in determining the intention of the accused. In Kaluram V State of Assam, 1977 Crl.L.J. 98 it was found that the accused had dangerous weapon but he inflicted only minor injuries on the victim which clearly showed that he had no intention to murder and hence he was not convicted under section 307 IPC. However the nature of the injury is not always used to ascertain the intention, that is, a very serious injury need not be caused to prove attempt to murder, even if a simple injury is done with the intention, it will be enough to convict the person under section 307. In State of Maharashtra V Balram Bama Patil, (1983) 2 SCC 28) the Supreme Court held that it is not necessary that a bodily injury sufficient under 19/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 normal circumstances to cause death should have been inflicted. It was observed as under:-
To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
The above position was followed in State of MP V Saleem, (2005) 5 SCC 554) it was observed as under:-
It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
In State of MP V Kashiram & others, AIR 2009 SC 1642 it was observed as under:-
To justify a conviction under this Section, it is not essential 20/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
12. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.
In Jage Ram V State of Haryana, (2015) 11 SCC 366) the Supreme Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted. It was observed as under:-
21/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc. In State of Madhya Pradesh V Kanha @ Omprakash, Criminal Appeal No 1589 of 2018 decided on 4 February, 2019 by the Supreme Court of India, the respondent was found guilty of the offence under section 307 IPC by the Trial Court. The respondent preferred an appeal before the High Court of Madhya Pradesh. The High Court converted the conviction of the respondent from that under section 307 to section 324 IPC. The State preferred appeal in the Supreme Court. The State submitted that eleven punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm were found on the body of the injured which were caused by a firearm and nature of injuries as well as the weapon of offence clearly proved an intention to commit murder and the hurt caused satisfies the ingredients of Section 307 IPC. The respondent submitted that there was no evidence to prove that the injuries caused were grievous in nature or life-threatening. It was observed as under:-
The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act".
The proof of grievous or life-threatening hurt is not a sine 22/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case.
In State of Madhya Pradesh V Harjeet Singh & another, Criminal Appeal No. 1190 of 2009 decided on 19th February, 2019 the Criminal Appeal was filed by the Respondents against their conviction under Section 307 IPC. The High Court reduced the conviction of the respondents from Section 307 to Section 324 IPC. The prosecution proved beyond reasonable doubt that accused /respondent No. 1 inflicted four injuries on the complainant by using a knife. It was observed as under:-
The act of stabbing a person with a sharp knife, which is a dangerous weapon, near his vital organs, would ordinarily lead to the death of the victim. The weapon of offence was a 4inch long knife which is a dangerous weapon. The Accused /Respondent No. 1 had assaulted the Complainant with the said knife, and inflicted 14 multiple injuries on his chest, scapula, back, and buttocks. The multiple blows in- flicted by the Accused /Respondent No. 1 would prove the in- tention of causing bodily injury likely to cause the death of the victim. Stabbing a person with a knife, near his vital or- gans would in most circumstances lead to the death of the victim, thereby falling squarely within the meaning of Sec- tion 307.
The Madhya Pradesh High Court in Rambabu V State of Madhya Pradesh, CRA 6064 of 2017 decided on 1st April, 2019 observed that proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 23/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 307 IPC. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and severity of the blows inflicted can be considered to infer intent. The nature of injuries inflicted to the injured does not have any relevance to determine culpability of the accused including intention for offence punishable under section 307 IPC. There is no legal force in arguments advanced by the defence counsels that due to nature of injuries sustained by the complainant PW1, the victim PW2 and the injured PW3 no offence under section 307 IPC can be made.
23. The respective statements of the accused Shiv Kumar @ Shibu and the accused Akash @ Akku were recorded under section 313 Cr.P.C. Statement under Section 313 Cr.P.C. is not a substantive piece of evidence. It is not equivalent to confession of accused. Section 313 Cr.P.C. ensures principle of natural justice to the accused. It empowers the court to examine the accused with the purpose to enable the accused to explain incriminating circumstances in the prosecution evidence. The Supreme Court in Samsul Haque V State of Assam, Criminal Appeal No.1905 of 2009 decided on 26th August, 2019 considered the rights of the accused enshrined under Section 313 Cr.P.C. The appellant was convicted of murder and the conviction was upheld by the Gauhati High Court. The Supreme Court noted that only two questions were put to the accused in statement under Section 313 Cr.P.C. It further held that the incriminating material is to be put to the accused so that the accused gets a fair chance to defend him. This is in recognition of the principles of audi alteram partem. In view of the abridged recording of the Section 313 statement, the accused was acquitted. The Supreme Court in Samsul Haque also relied on the observations made in Asraf Ali V State of Assam, Criminal Appeal No.1905 Of 2009 decided on 17th July,2008 which are as under:-
The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused be questioned about the matter and be given an op- portunity of explaining it. Where no specific question has 24/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 been put by the trial court on inculpatory material in the prosecution evidence, it would vitiate the trial.
The Supreme Court in Reena Hazarika V State of Assam, Criminal Appeal No. 1330/2018 decided on 31st October, 2018 observed that a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. It was also held that Section 313 Cr.P.C. can- not be seen simply as a part of audi alteram partem rather it confers a valuable right upon an accused to establish his innocence. It also made it explicitly clear that if there has been no consideration of the defence taken by the accused under section 313 Cr.P.C. the conviction can stand vitiated.
In Manu Sao V State of Bihar, (2010) 12 SCC 310, the Supreme Court elaborated evidentiary value of statement of accused under Section 313 Cr.P.C. as under:-
The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and 25/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case.
The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
24. The accused Shiv Kumar @ Shibu and Akash @ Akku in respective under section 313 Cr.P.C denied the incriminating evidence and pleaded false implication and innocence. The accused Shiv Kumar @ Shibu also stated that the knife was planted in the police station and disclosure statement was falsely recorded by the police officials. The counsel for the accused Shiv Kumar @ Shibu in cross examination of the complainant PW1, the victim PW2 and the injured PW3 took defence that the complainant PW1, the victim PW2 and the injured PW3 were attacked, assaulted and beaten by public persons as the complainant PW1 was behaving badly in the market. The counsel for the accused Akash @ Akku did not cross examine the complainant PW1 and the victim PW2 regarding manner of receiving injuries. The counsel for the accused Akash @ Akku in cross examination of the injured PW3 took defence that the complainant PW1 was not stabbed by the accused persons and he received injury by falling on some sharp object. The defence counsels in cross examination of PW4 Dr. Nikhil Kumar who surgically examined the complainant PW1 took defence that some of the injuries 26/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 might be caused due to falling on ground over either hard or sharp object. The defence counsels as such took contradictory stands in defence of the accused Shiv Kumar @ Shibu and the accused Akash @ Akku. The defence as taken by the accused Shiv Kumar @ Shibu and the accused Akash @ Akku in statement under section 313 Cr.P.C. and in cross examination of prosecution witnesses does not inspire any confidence and appears to be after though, sham and contrary to the evidence. The complainant PW1 clearly deposed that he was stabbed by the accused Shiv Kumar @ Shibu and there is no reason to disbelieve his testimony. Even as per FSL report dated 10.04.2018 blood stained found Knife Ex. P1 stated to be recovered at instance of the accused Shiv Kumar @ Shibu matched with blood stains found on vest (baniyan) of the complainant PW1 seized during investigation.
25. The important issue which needs judicial consideration regarding injuries sus- tained by the complainant PW1 is that whether on basis of evidence and other ma- terial on record the offence under section 307 IPC or under section 324 IPC is made out. Section 307 gives weightage to the intention and the knowledge of the accused and the preparation that he makes before committing the crime. The of- fence of attempt to murder is a very serious offence because it is not very different from the offence of murder itself. The only difference between the two offences is the death of the victim which is not present under section 307 IPC. The act at- tempted should be of such a nature that if not prevented or intercepted, it would lead to the death of the victim. Section 307 IPC gives more importance to mens rea or the intention than the actus reus or the actual act itself. The intention or mens rea to kill is needed to be proved. The attempt should arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the man- ner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. The intention to kill cannot be gauged simply by the seriousness of the injury caused. The intention and the knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under section 307 IPC.
27/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17
26. The defence counsels argued that the injuries as mentioned in MLC Ex. PW4/A do not reflect intention or mens rea of the accused Shiv Kumar @ Shibu and the accused Akash @ Akku for inflicting such injuries which would have been sufficient to cause death of the complainant PW1; the knife Ex.P1 was not recov- ered at the instance of the accused Akash @ Akku and blood samples were not lifted from earth.
The complainant PW1 deposed that the accused Shiv Kumar @ Shibbu took out a knife and the accused Akash @ Akku caught hold of him and then the accused Shiv Kumar @ Shibbu inflicted knife injury on his chest, stomach and thigh. The victim PW2 and the injured PW3 also corroborated and supported testimony of the complainant PW1 regarding infliction of stab injuries. PW 11 the investigating officer ASI Suman Kumar PW12 recovered knife Ex. P4 during investigation at instance of the accused Shiv Kumar @ Shibu which was seized vide seizure memo Ex. PW6/E and sketch Ex. PW6/D was also prepared. The perusal of sketch Ex. PW6/D reflects that knife Ex.P4 was small in size and cannot be said to be a dangerous weapon. The complainant PW1, the victim PW2 and the injured PW3 after incident were removed to JPC Hospital where they were medically examined by PW4 by Dr. Meghali Kelkar vide MLC Ex. PW4/A, Ex. PW5/A and Ex.PW5/B respectively.
27. As per MLC Ex.PW4/A, the complainant PW1, the victim PW2 and the in- jured PW3 were brought to hospital with history of physical assault. They were conscious and oriented with normal blood pressure and pulse rate and were de- clared fit for statement. They were discharged from hospital on same day after medical treatment. The victim PW2 and the injured PW3 received simple injuries. There is no medical evidence that injuries in respect of the complainant PW1 as mentioned in MLC Ex. PW4/A would be sufficient to cause death in ordinary course. The injuries received by the complainant PW1 were superficial and in- flicted by sharp weapon i.e. knife Ex.P1. The scuffle between the accused Shiv Kumar @ Shibu and the accused Akash @ Akku and their associates and the com- plainant PW1 and the injured PW3 took place at spur of moment and without any 28/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 premeditated mind. There was no previous enmity between the accused Shiv Ku- mar @ Shibu and the accused Akash @ Akku and the complainant PW1. There is no evidence that the accused Shiv Kumar @ Shibu and the accused Akash @ Akku were having requisite intention or knowledge to cause culpable homicide. The acts complained of were not of such a nature which would have caused the death of the complainant PW1 if it were not prevented. The prosecution could not prove requi- site intention or mens rea on the part of the accused Shiv Kumar @ Shibu and the accused Akash @ Akku to commit offence punishable under section 307 IPC. The prosecution could prove that the victim PW2 and the injured PW3 received simple injuries and the complainant PW1 received simple injuries by sharp weapon i.e. knife Ex.P1.
28. In the adversarial system every person accused of an offence is always pre- sumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maha- rashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurispruden- tial enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devo- tion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bi- har, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suf-
29/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 fering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
29. The prosecution has failed to prove offences punishable under sections 354A/ 307 IPC against the accused Shiv Kumar @ Shibu and the accused Akash @ Akku beyond reasonable doubt. The prosecution could prove its case for the offence punishable under section 323/34 IPC in respect of injuries received by the victim PW2 and the injured PW3 and under section 324/34 IPC in respect of injuries sus- tained by the complainant PW1 against the accused Shiv Kumar @ Shibu and the 30/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17 accused Akash @ Akku by establishing that the accused on 28.12.2017 at about 3.00 pm in furtherance of their common intention caused simple sharp injuries to the complainant PW1 by using sharp weapon i.e. knife Ex.P1 and simple injuries to the victim PW2 and the injured PW3. Accordingly the accused Shiv Kumar @ Shibu and the accused Akash @ Akku are convicted for offence under section 323/34 IPC and 324/34 IPC.
ANNOUNCED IN THE COURT ON 29th JUNE, 2020 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE, NORTH- EAST KARKARDOOMA COURTS, DELHI 31/31 STATE V SHIV KUMAR @ SHIBU AND ANOTHER FIR 658/17