Delhi District Court
State vs Sonu Chaudhary S/O Late Subhash Chand, on 30 November, 2022
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE(FTC)-02, SOUTH EAST DISTRICT
SAKET COURTS : DELHI
In the matter of:-
(Sessions Case No. 2426/16)
FIR No. 732/14
Police Station Jaitpur
Charge sheet filed Under 452/307 IPC
Section
Charge framed Under 452/307 IPC
Section
State V/s Sonu Chaudhary s/o Late Subhash Chand,
r/o H. No. D-2, 366, Hari Nagar Extn. Part-III,
New Delhi.
......Accused
Date of institution 20.05.2015
Arguments concluded on 28.11.2022
Judgment Pronounced on 30.11.2022
Decision Convicted u/s
324/452 IPC
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that DD No. 3A was registered and same was marked to IO SI Chander Shekhar, who alongwith Ct. Sanjeev reached at the spot i.e., Baithak Restaurant situated at B-2, Sukrbazar Nala Road, Hari Nagar Extn. New Delhi. PCR van had already reached there and handed over two injured persons namely Rajat and Imran to the IO.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 1 of 22 State Vs. Sonu Chaudhary Accused Sonu was also apprehended by the PCR official and he was also handed over to the IO. IO recorded the statement of complainant/injured Rajat Dhayani, who stated that he was present in the restaurant namely Baithak being run by him on 06.10.2014. At about 11:00 PM, accused came and asked for drinking water to consume alcohol. When injured Rajat denied for the same, accused took out a blade and inflicted injuries on his thigh, shoulder and back of the complainant. When friend of Rajat namely Imran tried to save him, accused also attacked him with the blade and inflicted injury on his stomach. On the basis of statement of injured Rajat, FIR was registered and accused was arrested. IO seized blood stained clothes of the injured persons, recorded statement of witnesses and after completion of investigation, charge sheet for offences u/s 452/307 IPC was filed in the court.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 14.07.2016 charge u/s 452/307 IPC IPC against accused was found to be made out. The formal charge was framed on the said date to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 9 witnesses in all.
FORMAL WITNESSES
4. PW2 SI Narender Singh, is the duty officer, who was on duty on 07.10.2014 from 08:00 AM to 04:00 PM. Ct. Sanjeev Kumar handed over a rukka to him sent by IO and he registered the FIR which is Ex. PW2/A after making his endorsement on rukka which is Ex. PW2/B. SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 2 of 22 State Vs. Sonu Chaudhary
5. PW4 HC Surender, who deposed that on 06.10.2014, he was on night patrolling duty in beat no. 7. At about 12.00 AM midnight, he received a call from PW9 SI Chandar Shekhar that a quarrel had taken place at Shukr Bazaar, Nala Road near Siddharath Garden and PW4 was directed to reach there. When PW4 reached there PW9 SI Chandar Shekhar and Ct. Sanjeev were already present there. Thereafter, PW4 and Ct. Sanjeev took the accused to PS Jaitpur.
6. PW5 is SI Goverdhan Oraun, who deposed that on 06.07.2014, he was in-charge of PCR K-11. He received an information at 11.45 PM. He along with his staff reached at the spot where PW1 and PW3 were found in injured condition. He further deposed that he apprehended the accused and handed over the accused to SI Chandra Shekhar on his arrival.
7. PW6 is Rajender Singh, record clerk, AIIMS Trauma Center, proved the MLC bearing no. 454230 dated 07.10.2014 of injured Imran as Ex. PW6/A, MLC No. 454231 dated 07.10.2014 of injured Rajat as Ex. PW6/B and MLC bearing no. 454244 of accused as Ex. PW6/C. He also exhibited his authority letter to appear in court as Ex. PW6/D and discharge notes of 3 MLCs as Ex. PW6/D1 to Ex. PW6/D5.
8. PW7 is Dr. Biswajit Singh, SR, AIIMS Trauma Center, New Delhi. He deposed that as per MLC No. 454230 dated 07.10.2014 of Imran s/o Fakruddin, prepared by Dr. Mahavir Singh, patient suffered incised looking wound of 10 cm x 3 cm on the anterior lower chest and nature of injury is simple caused by sharp weapon. He further deposed that injured Rajat was examined vide MLC No. 454231 dated 07.10.2014 by Dr. Mahavir Singh and SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 3 of 22 State Vs. Sonu Chaudhary it is mentioned on the MLC that patient Rajat suffered incised wound of different dimensions mentioned in MLC on his left anterior thigh, left shoulder and on left posterior chest and nature of injury was simple caused by sharp weapon.
He further deposed that accused Sonu was examined vide MLC No. 454244 dated 07.10.2014 by Dr. Vijay Ranjan and as per MLC, he suffered abrasion of right knee foot and forearm and nature of injury was simple.
MATERIAL/EYE WITNESSES
9. PW1 Rajat Dhayani is the complainant and injured in this case. He deposed that on 06.10.2014, he was present in his restaurant namely Baithak situated at Shukarbazar Road, Badarpur. At about 11:00 PM, accused came to his restaurant and asked him to give a jug of water for consuming alcohol. When Rajat refused for the same, accused started arguing with him and boasted himself by stating that injured did not know as to who the accused was and also claimed that he was a bad character of the area. A scuffle took place and he inflicted injuries with a blade on thigh, shoulder and back of the injured. Rajat raised hue and cry and one known person namely Imran came to his restaurant to save him. Accused also attacked him with blade and caused injury on his stomach. A worker of complainant called police at number 100 and complainant become unconscious due to excessive bleeding. Thereafter, PCR got him admitted to AIIMS Trauma Center alongwith Imran. After treatment they were discharged and on the next date i.e., 07.10.2014 at about 08:00 AM IO recorded his statement. He exhibited his statement as Ex. PW1/A. Accused was arrested vide arrest memo which is Ex. PW1/B and his personal search was also conducted vide personal search memo which is Ex. PW1/C. Complainant handed over his blood stained clothes to the IO which SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 4 of 22 State Vs. Sonu Chaudhary were seized vide seizure memo which is Ex. PW1/D. He also exhibited his pants having a cut near the belt area in his deposition as Ex. P1.
In his cross examination, he stated that at the time of incident his employee namely Hemraj Thappa and Kalu were present in the restaurant. He stated that accused was heavily drunk and he came to his restaurant, however, he was not carrying any liquor bottle in his hand. He expressed his ignorance as to who had informed the police on the ground that he was unconscious due to injuries. He admitted that he did not hand over his blood stained shirt to the police. He also admitted that many persons had collected at the spot at the time of incident. He stated that Imran came within 5 minutes of the altercation.
10. PW3 Imran is the second injured in this matter. He deposed that he does not know the complainant or the accused. He stated that he saw a quarrel going on between unknown persons and when he stopped there, someone from public inflicted injury on his stomach by a blade. He was taken to hospital by PCR van alongwith one more unknown injured. He has been cross examined at length by ld. Addl. PP but he denied the case of the prosecution on material aspects. He denied the fact that he was attacked with the blade by the accused when he tried to save Rajat from him. Hence, PW3 Imran has turned hostile in this matter.
WITNESSES OF INVESTIGATION
11. PW8 is HC Sanjay, who deposed that on 06.10.2014 he was on emergency duty from 08:00 PM till 08:00 AM (07.10.2014) alongwith SI Chander Shekhar. At about 12:10 AM, on receipt of DD No. 3A regarding scuffle at Nala Road, Sidharth Garden, Hari Nagar Extension, New Delhi, he SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 5 of 22 State Vs. Sonu Chaudhary alongwith SI Chander Shekhar reached at the spot where they met PCR officials, who had already apprehended accused and injured Imran and Rajat were also present with PCR staff in injured condition. He further deposed that both the injured were shifted to hospital by PCR van. Ct. Surender also reached at the spot with IO. He further deposed that in the meantime, IO received DD No. 9A from AIIMS Trauma Center. PW8 alongwith IO reached at Trauma Center, however, none of the injured met them. IO collected MLC of both injured and went to the house of injured Rajat i.e., C-19, Hari Nagar Extension, Badarpur, New Delhi and recorded the statement of injured, prepared the rukka and got the FIR registered through PW8. Injured Imran also joined the investigation and blood stained clothes of both the injured were seized by the IO. PW8 alongwith IO returned back to PS and IO arrested the accused, conducted his personal search and recorded disclosure statement of accused which is Ex. PW8/A.
12. PW9 is SI Chandar Shekhar, who is IO of this case. He deposed that on 07.10.2014, on receipt of DD entry no. 3A around 12.05 AM through duty officer, he along with Ct. Sanjeev went to the spot i.e. Nala Road. Where PCR van had already reached and PCR officials had already apprehended accused Sonu and two injured persons namely Rajat and Imran. He further deposed that injured persons were sent to AIIMS Trauma Center in the PCR van. He called Ct. Surender on the spot and they came back at PS along with accused Sonu. He further deposed that on the said day, DD No. 9A was registered by duty Ct. from AIIMS Trauma Center around 4.45 AM regarding admission of injured persons in the hospital. Thereafter, he along with Ct. Sanjeev went to AIIMS hospital and collected the MLC no. 454231/14 Ex. PW6/B of injured Rajat and MLC No. 454230 which is Ex. PW6/A of injured Imran from the hospital, however, he could not meet injured persons in the hospital as they were discharged. He further SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 6 of 22 State Vs. Sonu Chaudhary deposed that he along with Ct. Sanjeev visited the house of injured Rajat and recorded his statement at his residence. IO made endorsement on rukka which is Ex. PW9/A and handed over the same to Ct. Sanjeev for registration of FIR. IO prepared the site plan at the instance of complainant which is Ex. PW9/B. Ct. Sanjeev came back along with the original rukka and copy of FIR. Thereafter, they visited the residence of injured Rajat and collected his blood stained clothes which were seized vide seizure memo. Thereafter, they went to the house of second injured Imran and recorded his statement under section 161 CrPC. Imran handed over his blood stained clothes to the IO which were seized vide seizure memo which is Ex. PW9/C. IO. IO interrogated accused Sonu in the PS and arrested him vide arrest memo after conducting his personal search and recorded his disclosure statement. IO correctly identified the accused and case property during his deposition before the court.
13. Statement of accused under section 294 CrPC was recorded vide which accused admitted the genuineness of the documents i.e., DD No. 3A dated 07.10.2014 which is Ex. A1 and DD No. 9A dated 07.10.2014 which is Ex. A2 without admitting their contents.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
14. After closure of PE, the statement of the accused was recorded u/s 313 Cr.P.C. on 23.11.2022, wherein he stated that he has been falsely implicated in this case. On the day of incident, he was coming back from Faridabad and was going to his home situated in the next gali. When he reached at the spot, there was some scuffle/fight between the complainant and some unknown persons. Accused tried to intervene the matter and after that above stated unknown persons fled away from the spot but the complainant wrongly taken his name as he was the member of that unknown persons and SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 7 of 22 State Vs. Sonu Chaudhary kept him sitting at the spot and handed over him to the police officials. Accused has no concern with the above stated fight/scuffle. He has been falsely implicated by the complainant in connivance with investigation officer. IO of the present case falsely implicated him in the present case just to solve his blind case. There were several public persons including neighbours and workers of restaurant of the complainant but IO did not inquire them about the case.
Accused opted not to lead any defence evidence in his defence.
15. Thereafter, matter was fixed for final arguments.
ARGUMENTS
16. I have heard Sh. L. D. Singh, Ld. Addl. PP for the State and Sh. Rijwan Ali, Ld. LAC for the accused.
17. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature and the material witnesses namely Rajat has supported the prosecution's case and deposed in unequivocal manner that he was beaten by the accused and the accused had also inflicted injuries on his person with a blade. As per proved MLC of the injured, the injuries suffered by him were simple in nature caused by a sharp edged weapon. Accused caused three injuries on the complainant with a blade and the injury at stomach of injured Imran could have been fatal. The intention of the accused was to kill the complainant and that is why he inflicted three grievous injuries with the blade. Hence, prosecution has proved its case against the accused under section 307/452 IPC and accused may be convicted on the basis of credible, cogent and reliably testimony of complainant.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 8 of 22 State Vs. Sonu Chaudhary
18. Per contra, Mr. Rijwan Ali, Ld. LAC for accused person has argued that the other injured namely Imran has turned hostile in this case and he has stated that injuries suffered by him were not inflicted by accused Sonu Chaudhary. It is also argued that as per the prosecution story the injuries were allegedly inflicted with a blade and accused was caught on the spot by the PCR officials and was handed over to the IO. No explanation is available on record qua non seizure of the weapon of offence. It reflects that accused was never apprehended at the spot and he was not involved in the alleged incident and that is why weapon of offence could not be seized. Hence, accused cannot be convicted on the basis of sole testimony of complainant as the other injured has turned hostile and the remaining eye witnesses have not been examined. It is further pointed out that as per testimony of PW1 Rajat, accused was inebriated condition when he entered the restaurant but smell of alcohol was not detected by the doctor, who examined the accused on the same day. Therefore, the story of accused in drunken condition and he asked for water to consume further alcohol, stands unproved during the evidence. By non proving the weapon of offence, prosecution has failed that injuries were inflicted with the blade as alleged and allegations under section 307/452 IPC remains unproved against the accused.
19. I have heard the arguments at length and perused the entire record.
FINDINGS
20. The accused Sonu Chaudhary has been charged for the commission of offence punishable under Sections 307/452 IPC.
21. The relevant Sections are reproduced as under:
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 9 of 22 State Vs. Sonu Chaudhary SECTION 307 IPC
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 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] SECTION 452 IPC
452. House-trespass after preparation for hurt, assault or wrongful restraint.--
Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
22. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime.
Presumption of Innocence is a re-statement of the rule that in SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 10 of 22 State Vs. Sonu Chaudhary criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
23. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
24. There are two material witnesses in this case. One is complainant Rajat Dhayani and other one is Imran. Both of them have suffered injuries at the hands of the accused during the incident. Ld. counsel has argued that injured Imran has deposed that injured Rajat and accused are not known to him. He has deposed that when he reached at the spot, a quarrel was going on and somebody from the public inflicted injuries on the person of Imran. Hence, version of PW1 that accused had attacked him with a blade remained uncorroborated due to hostile testimony of PW Imran. Other eye witnesses namely Hemraj Thappa and Kalu, servants of PW1 Rajat Dhayani have not been examined by the IO.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 11 of 22 State Vs. Sonu Chaudhary
25. It is correct that PW Imran has turned hostile qua identity of accused but he has supported the prosecution's case that he sustained injuries on the date, time and place of incident. He has further supported the fact that he was taken to hospital in a PCR van alongwith one injured. Meaning thereby, testimony of PW Imran has corroborated the version of PW1 Rajat that incident had happened on that day and both of them had sustained injuries and were taken to hospital by PCR van. Hence, it cannot be said that testimony of PW Imran is of no avail to the prosecution's case.
26. As far as non examination of public witnesses from the vicinity and servants from the restaurant is concerned, that argument is also of no avail as law is settled that it is the quality of testimony which is material and not the quantity of the same. PW1 Rajat has categorically deposed that it was the accused only, who inflicted injuries to him and nobody else.
In Saleem Khan Vs. State Government of NCT of Delhi Criminal Appeal No. 491/2020 decided on 05.01.2022, Hon'ble Delhi High Court has dealt with the similar factual matrix which are identical to the present case. In that case injured and his brother had deposed against the accused that accused attacked them with a knife (churri). Injured suffered two injuries one on his neck and the other one on his stomach. Accused also attacked his brother when he tried to save the injured from the accused. During investigation, police could not seized the weapon of offence and no public witness was joined in the investigation. The trial court convicted the accused and the judgment was upheld by Hon'ble Delhi High Court. While dealing with testimony of an injured, the court relied upon State of Uttar Pradesh Vs. Naresh and Ors. 2011 4 SCC 324 wherein it was held as under:
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 12 of 22 State Vs. Sonu Chaudhary
27. 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 offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
While relying upon the judgment of State of Uttar Pradesh Vs. Naresh, Hon'ble High Court held that testimonies of injured and his brother were credit worthy and reliable and the appeal was dismissed.
27. In case titled as Chacko @ Aniyan Kunju and others Vs. State of Kerala AIR 2004 SC 2688 and in Rama Krishna Madhusudhan Nayar Vs. State of Maharasthra AIR 2008 SC 927, it has been held by Hon'ble Supreme Court that a person can be convicted on the basis of the solitary evidence, if he is wholly reliable. If the evidence is unblemished and beyond all possible criticisms and the court is satisfied that the witness was speaking the truth then on his evidence alone, conviction can be maintained.
28. Therefore, as per the ratio of Saleem Khan's case (discussed supra) and catena of judgments of Hon'ble Supreme Court, an accused can be convicted on the basis of sole testimony provided it is reliable and credit worthy. Accused Sonu and PW Rajat were not known to each other prior to the SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 13 of 22 State Vs. Sonu Chaudhary incident and there is no scope as to why PW Rajat would implicate Sonu and would saves the real assailant. There is also no history of enmity between the complainant and accused. Injured has deposed without any iota of doubt that it was accused only, who attacked him with a blade on the date of incident. Therefore, the arguments of non examination of servants, hostile testimony of Imran and non joining of public persons lacks substances in it and accordingly, stands rejected.
29. The next point qua procedural lapse raised by Ld. LAC Sh. Rijwan Ali is that IO has not seized the weapon of offence and in absence of the same, opinion of the doctor, that injuries suffered by injured persons were simple in nature caused by sharp edged weapon, cannot be read into evidence as the weapon of offence was never examined by the doctor prior to giving his final opinion on the MLCs.
MLC No. 454230 of injured Imran has been exhibited as Ex. PW6/A and nature of injuries has been proved by PW7 Dr. Bishwajeet Singh. As per MLC, Imran had a incised wound of 10cm x 3cm on the anterior lower chest portion. PW Rajat was examined vide MLC No. 454231 which is Ex. PW6/B and as per opinion of PW7 nature of injury was simple caused by sharp weapon. He had three incised wounds of 6cm x 3cm on his left anterior thigh, incised wound of 7cm x 3cm on left shoulder and incised wound of 1cm x 1cm on the left posterior chest. Therefore, MLCs of both injured have been duly proved alongwith nature of injuries and the weapon used in the offfence. Now, the question left unanswered as to what would be the effect of non SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 14 of 22 State Vs. Sonu Chaudhary seizure of weapon of offence by the IO. This question has been answered in Saleem Khan's case (discussed supra) wherein it is held as under:
"19. A contention was raised on behalf of the appellant with respect to non recovery of the weapon of offence. In connection therewith, it is noted that Supreme Court has observed in Rakesh & Anr. Vs. State of Uttar Pradesh & Anr. reported as (2021) 7 SCC 188 that recovery of the weapon of offence is not a sine qua non for convicting an accused. Albeit under section 302/34 IPC, the court in this case also opined that it was not possible to reject the ocular evidence of eye witnesses to the incident, who are reliable and trustworthy.
Combined with the fact that the testimonies of the complainant and his brother Sahil and cogent and consistent, the contention raised on behalf of appellant that the weapon of offence was not recovered, has not merit. The same is rejected accordingly."
30. In the present case under consideration, testimony of injured Rajat is also found to be trustworthy and reliable against the accused. Accused entered into his restaurant armed with a blade and he slashed the body of the injured Rajat thrice. Accused had the knowledge that injuries by a surgical blade could be life threatening and despite this, he inflicted three injuries on his body. An opinion can be given by the doctor after perusing the injuries of the injured and it can also be opined as what type of weapon was used in inflicting those injuries. PW7 Dr. Bishwajeet has opined that injuries are such which can be caused by a sharp edged weapon. Therefore, the sole testimony of PW Rajat is enough to bring home the charge against the accused and non seizure of weapon of offence by the IO carries no significance and argument stands rejected accordingly.
31. Another leg of argument addressed by ld. LAC is that as per MLC SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 15 of 22 State Vs. Sonu Chaudhary of the accused, there was no smell of alcohol which reflects that the story of asking water from PW Rajat to consume alcohol is false and fabricated.
I have gone through the original complaint filed by injured and his examination in chief wherein he had not stated that accused was in drunken condition when he came to the restaurant. This witness has stated that accused asked for a jug of water to consume alcohol. In his cross examination, he has stated that accused was in drunken condition when he entered the restaurant. Ld. LAC has pointed out this contradiction which occurred in the testimony of PW1 but this is a minor contradiction. Law is settled that minor contradictions are bound to occur in a criminal trial and no person is supposed to have a mirror image like memory. The manner in which PW1 has deposed inspires confidence of the court and the defence has failed to create any dent on his deposition. Moreover, the controversy pending adjudication before this court is whether accused had entered the restaurant of the injured or not. Whether accused had inflicted injuries on PW Rajat and PW Imran or not. On both these accounts PW1 Rajat has testified against the accused. Therefore, the issue of absence of alcohol in MLC is of no consequence to the merits of this case and accordingly, argument stands rejected.
32. From the above discussion and material available on record, it is crystal clear that accused Sonu entered a building (restaurant) armed with a blade and that act constitutes an offence under section 452 IPC. Thereafter, he attacked complainant Rajat and injured Imran with the blade and inflicted injuries on them. Accused has been charged under section 307 IPC also but it SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 16 of 22 State Vs. Sonu Chaudhary is nowhere stated by the victim Rajat that accused attacked him with an intention to kill him. Accused did not utter any word to the victim Rajat that he would kill him. As per settled law section 307 IPC would be attracted if the attacker had the 'knowledge' or 'intention' that while committing the act, death of victim may occur due to his assault. As per version of PW1 accused entered into his restaurant and asked for jug of water. When the victim denied for the same, the altercation took place. Till that point there was no enmity or grudge against the victim on behalf of the accused. Therefore, it cannot be presumed that accused entered the property of the victim armed with a blade and that too with an 'intention' to commit his murder.
33. When the victim refused for the water, a scuffle took place. As accused was armed with a blade, he started slashing the victim with that blade. Now the 'knowledge' part as enumerated in section 307 IPC has to be gathered from the conduct of the accused during the commission of the offence. The court has to see as to on which part of the body of the victim, the accused had inflicted injuries or whether or not accused tried to inflict injury on the vital part but somehow could not do so. In the present case, victim Rajat had suffered three incised wounds i.e., on his left anterior thigh, left shoulder and on left posterior chest on his body. Accused also inflicted injuries on the person of second injured Imran at his anterior lower chest. Injuries of both injured persons have been proved as per their MLCs as simple and inflicted by a sharp weapon. None of the injury on the body of the victim Rajat, can be said to be on vital part and from where it can be gathered that accused had any 'knowledge' that he could have caused the death of the victim by his act.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 17 of 22 State Vs. Sonu Chaudhary As far as injury sustained by Imran is concerned, that is on vital part of the body but PW Imran has turned hostile qua the identity of the accused. He has deposed that accused did not inflict injury on his person and it was inflicted by some other person from the crowd. Therefore, the injury suffered by PW Imran cannot be attributed to the accused. Hence, essential ingredients of section 307 i.e., intention or knowledge are missing in this case and same is not proved against the accused by the prosecution.
34. It is proved beyond reasonable doubt by the prosecution that injuries suffered by complainant and Imran were simple caused by a sharp weapon. At this juncture, section 324 IPC has become significant and relevant which is reproduced here as under:
Section 324 IPC
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 18 of 22 State Vs. Sonu Chaudhary Section 324 IPC is attracted if an accused had voluntarily caused hurt by means of any instrument of shooting, stabbing or cutting which is likely to cause death. In the present case, accused Sonu used a blade during the commission of offence which is an instrument for cutting and squarely covered under section 324 IPC. He used the weapon voluntarily to cause injury to the victim Rajat. His voluntariness can be gathered from his conduct as he inflicted three injuries on the body of complainant Rajat. In Hardev Singh Vs. Harbhej 1997 1 SCC 80, 88, it was held by Hon'ble Supreme Court that where an evidence of an eye witness, who received injury during assault caused by the accused, finds corroboration from the evidence of a medical expert and another eye witness, the case against the accused has to be presumed as proved beyond reasonable doubt. In the present case, complainant has deposed unequivocally against the accused that it was accused only who inflicted injuries on him with a blade and his version qua injuries have been corroborated by the doctor and through his MLC.
35. In Anwarul Haq Vs. State 2005 10 SCC 581, the Hon'ble Supreme Court held that "any instrument used as a weapon of offence, is likely to cause death" means dangerous weapon which if used by the offender is likely to cause death. In the present case, accused had used a blade during the commission of offence and same falls into the category of dangerous weapon which is capable of causing death. Hence, in my considered opinion, the act of the accused is squarely covered under section 324 IPC and prosecution has proved its case against the accused under section 324/452 IPC.
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 19 of 22 State Vs. Sonu Chaudhary
36. Before parting with this case, it would be appropriate to deliberate over the conduct of the investigating officer SI Chander Shekhar. There are glaring lapses observed in the investigation done by the IO. It is admitted case that when the IO reached at the spot on the date of incident, injured persons and accused were already in custody of PCR officials. Thereafter, matter was being taken up by the IO. But following lacunas have been left by him which are here as under:
1. IO did not get photographed the crime scene. Accused had inflicted injuries on two injured persons with the help of a blade and there might be blood stains and signs of scuffle at the spot which should have been brought on the record by calling the crime team and get the crime scene photographed.
2. It is alleged against the accused that he used a blade as a weapon during the commission of offence but that blade has not been seized by the IO for the reasons best known to him. When the accused was apprehended from the spot by the PCR officials and he was always in custody of police till he was sent to JC then how come the blade got vanished and why it was not seized is beyond contemplation of this court.
3. IO did not apply for police remand of the accused to recover the weapon of offence.
4. IO did not record the statement of two eye witnesses namely Hemraj Thappa and Kalu, who were servants of the complainant Rajat and were present at the time of commission of offence.
5. There is no clarity in the charge sheet as to who informed the police at number 100. IO did not inquire the matter from the caller having number SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 20 of 22 State Vs. Sonu Chaudhary 7042667480.
6. As per the version of both injured persons, many public persons gathered at the spot during the incident and the spot was located in thickly populated area but IO did not make any effort to record the statement of any neighbour or any other public person during the investigation.
7. Injured Rajat suffered three injuries and two were on his upper portion i.e., shoulder and back but IO did not seize the shirt worn by the injured at the time of incident. It would have been easier for the court to understand the incident and location of injuries with the help of blood stained shirt of injured Rajat.
37. In Dayal Singh and Ors Vs. State of Uttranchal Criminal Appeal No. 529/2010 decided on 03.08.2012 by commenting on the role of investigating officer and other government official the Hon'ble Supreme Court held as under:
"39E. We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons so as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission pre judicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the court would be fully justified in directing the disciplinary authority to take appropriate disciplinary or other action in accordance with law, whether such officers, expert or employee witness, is in service or has since retired."
The intent of Hon'ble Apex court is that court should look into the conduct of the officers attached with the case and if any, misconduct, SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 21 of 22 State Vs. Sonu Chaudhary omission, negligence or deliberate effort to derail the prosecution's case is being observed then the court has to take such officers to the task. In the present case, SI Chander Shekhar has missed important and material evidences which ought to have been collected by him to prove the case against the accused. Hence, this court directs that suitable departmental action be taken against SI Chander Shekhar on account of his lapses in the investigation and action taken report may be shared with this court also within two months from today. Copy of this order be sent to Joint Commissioner of Police, District South East, New Delhi for necessary action at his end.
CONCLUSION
38. Thus, in view of the aforesaid findings, I have no hesitation to conclude that the prosecution has successfully proved its case beyond reasonable doubt against the accused for committing offences under section 324/452 IPC and accordingly, accused Sonu Chaudhary stands convicted under section 324/452 IPC. It is ordered accordingly.
Digitally signed by DHIRENDRA DHIRENDRA RANA
RANA Date: 2022.11.30
16:19:21 +0530
Dictated and announced in the open (Dhirendra Rana)
Court on 30.11.2022 Addl. Session Judge-FTC-02
(running in 22 pages) (South East), Saket Courts/Delhi
SC No. 2426/16, FIR No. 732/14, PS Jaitpur Page No. 22 of 22
State Vs. Sonu Chaudhary