Delhi District Court
State vs Jagdeesh Kumar @ Bihari on 16 January, 2024
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
SC No.149/2019
FIR No.517/2018
Police Station: Gokalpuri
under Section: 307 IPC
CNR no.DLNE01-001979-2019
State
Vs.
Jagdeesh Kumar @ Bihari
S/o Late Sh. Lallu
R/o H. No. B-106, Gali no.2,
Gokalpuri, Delhi. .........Accused
Date of registration of case: 09.05.2019
Date when the case was received by this Court: 09.05.2019
Date of conclusion of arguments: 03.01.2024
Date of pronouncement of judgment: 16.01.2024
JUDGMENT:
1. On 21.10.2018, Mahipat was returning home after completing the work of whitewash. At about 10:45 pm, when he reached in front of post office Gokalpuri, accused Bihari @ Jagdeesh Kumar met him there whom he was knowing as he also used to do the work of whitewash. Bihari @ Jagdeesh Kumar asked him to give money for purchasing liquor, which Mahipat refused. On which, Bihari @ Jagdeesh Kumar, who was under
SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 1/27 Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:42:15 +0530 the influence of liquor, started abusing him, hit him on the left side of his abdomen with knife and fled away with the knife. Mahipat was got admitted in the hospital. He also stated that somebody had wrongly told his name as Mahipal, whereas his actual name is Mahipat. The case was investigated. Accused was apprehended, who got recovered a knife from his house. After completion of the investigation, charge sheet against the accused was filed.
2. Learned MM after complying with the provisions of Section 207 Cr.P.C committed the case to the Sessions Court as offence punishable under Section 307 IPC is exclusively triable by the Sessions Court. Accused was charged for offence punishable under Section 307 IPC to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for the prosecution evidence.
3. Mahipat was examined as PW1. He deposed that on 21.10.2018 at about 10:45 pm, he was returning home after completing his work. Accused met him at Gokalpuri 'pyau'. He was under the influence of liquor at that time. Accused asked him for money for purchasing whisky/'sharab' but he refused. On his refusal, accused started abusing him, threatened him and thereafter attacked him with a knife on his abdomen. He knew accused before the incident. He became unconscious. When he regained consciousness, he found himself in the hospital. Police recorded his statement in the hospital. He stated that he may not be in a position to identify the knife as immediately after sustaining injury, he became unconscious. The knife was, however, shown to him and he identified it as the same knife with Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 2/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:42:26 +0530 which accused had stabbed him and the knife is exhibited as Ex.P1.
4. During cross-examination by learned defence counsel, he stated that at that time he was working in house no. C-8/156, Yamuna Vihar, Delhi. He had worked upto 9:30 PM. He was returning home on foot. He made payment to labour at Gokapuri Chowk, which took about 45 minutes and thereafter he proceeded towards his residence. He denied the suggestion that he was under the influence of liquor. He stated that he might have told the police that he had consumed liquor at Gokalpuri Chowk along with his friends. He does not know if consumption of liquor is mentioned in the MLC. He did not disclose to the police the names of his friends with whom he had consumed liquor. His wife had accompanied him to the hospital in the PCR Van. He is not able to recollect at what time his wife had made call at 100 number as he was unconscious and regained consciousness after the operation. He was alone at the time of the incident. He cannot tell who called his wife at the spot. His statement was recorded in the hospital, but he cannot recollect the date. He cannot say if statement of his wife was recorded by the police or not. Police prepared the site plan on his pointing out. He cannot tell whether CCTV cameras were there at the place of incident or not. He denied the suggestion that he consumed liquor with his friends and thereafter a quarrel took place between him and his friends in which he sustained injury. He denied the suggestion that he has falsely name the accused.
5. HC Virender was examined as PW2. On 21.10.2018, he Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 3/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:42:34 +0530 was working as Duty Constable at GTB hospital. On that day, he handed over two sealed parcels and one seal to the IO containing blood sample and the vest (baniyan) of the injured which were seized vide memo Ex.PW2/A having his signature at point A.
6. During cross-examination by the learned defence counsel, he denied the suggestion that he had not handed over the exhibits to the IO.
7. HC Sanjeev was examined as PW3. He was working as MHC(M) PS Gokalpuri at the relevant time. He deposed that on 21.10.2018, SI Prempal deposited two sealed parcels in the malkhana along with one sample seal of GTB hospital. He made endorsement in this regard at serial no.806 in register no.19.
8. On 02.11.2018, IO deposited one sealed parcel regarding which he made entry at serial no.825 in register no.19 and proved the photocopy of both entries as Ex.PW3/A (colly).
9. On 06.12.2018, three sealed parcels and two sample seals were sent to FSL through HC Kailash vide RC no.270/21/18. He proved the photocopy of RC as Ex. PW3/B. He also made necessary endorsement in this regard in register no.19. HC Kailash on return handed over acknowledgement of FSL to him and he proved the photocopy of the same as Ex.PW3/C.
10. On 25.01.2019, he went to FSL and collected FSL result and he made entry in this regard in register no.19.
11. During cross-examination by learned defence counsel, he Digitally signed by VIRENDER VIRENDER KUMAR SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 4/27 KUMAR BANSAL BANSAL Date:
2024.01.16 16:42:48 +0530 denied the suggestion that entries are ante dated and ante timed.
12. Dr. Nitin Shiwach was examined as PW4. He was posted in GTB hopsital. On 15.12.2018, he was posted as Senior Resident, Department of General Surgery. He after going through the surgical record of the patient opined the nature of injury as grievous.
13. During cross-examination, he stated that there is no possibility to receive such type of injury due to fall and the injury mentioned in the MLC can be caused only by sharp edged weapon.
14. HC Kailash was examined as PW5. He deposed that on 06.12.2018, he collected the sealed exhibits from MHC(M) vide RC no.270/21/18 already Ex.PW3/B and deposited the same in FSL, Rohini. He obtained the acknowledgement, copy of which is already Ex. PW3/C. He came back and handed over the acknowledgement to the MHC(M). He stated that the sealed exhibits remained intact and were not tampered with till it remained in his possession. The testimony of the witness has gone unchallenged and uncontroverted.
15. Ct. Sarnam Singh was examined as PW6. He deposed that on 21.10.2018 on receipt of DD no.45A, he along with IO reached in front of post office Gokalpuri. They came to know that the injured had already been taken to GTB hospital by PCR van. Thereafter, he along with IO reached GTB hospital. The IO collected the MLC of the injured Mahipat. Injured was declared unfit for statement. HC Virender handed over two sealed Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 5/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:42:58 +0530 envelopes and sample seal to the IO, who seized the same vide memo Ex.PW2/A. IO prepared the rukka and handed over the same to him for registration of FIR. He went to the PS and got the FIR registered. Thereafter, he came back to the spot and handed over the copy of the FIR and original rukka to the IO.
16. On 02.11.2018, he along with IO came to Karkardooma Courts, where accused was formally arrested vide arrest memo Ex.PW6/A and his personal search was conducted vide memo Ex. PW6/B. He correctly identified the accused. Accused made disclosure statement Ex.PW6/C. One day police custody of accused was taken. He pointed out the place of incident vide memo Ex.PW6/D. The accused led them to his house and from under the mattress of the bed in the room, he got recovered one knife. IO prepared the sketch of the same which is Ex.PW6/E. The knife was put in a cloth parcel, sealed with the seal of PP and seized vide seizure memo Ex.PW6/F. He identified the knife as Ex.P1.
17. During cross-examination by learned defence counsel, he stated that he along with SI Prempal reached the spot on his private motorcycle. He does not remember the time when they reached the spot, however, they reached within 5-7 minutes of receiving call. At that time, there was no crowd at the spot. 2-4 persons met them on the spot. They remained on the spot for about 10-15 minutes before leaving for the hospital. They reached the hospital in about 15-20 minutes. PCR officials did not meet them in the hospital. No relative of the injured was present in the hospital. They remained in the hospital for about 30-45 minutes. He does not remember if the IO recorded Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 6/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:43:07 +0530 statement of any of the witnesses in his presence. He proceeded to the PS from the hospital. IO also subsequently reached the PS. He was with the IO after PC remand of the accused was obtained. The house of the accused was about one and half storey. He does not remember the colour of the whitewash on the house of the accused. The wife of the accused along with one or two girls were present in the house at that time. The knife was got recovered from under the mattress of the room situated on the first floor. In reply to a court question, he stated that he does not recollect if he had taken rukka/tehrir for the registration of the FIR.
18. ASI Prempal was examined as PW7. He is the IO of the case. He deposed that on 21.10.2018, he was posted at PS Gokulpuri as SI. DD No.45A was assigned to him on which he alongwith Ct. Sarnam reached in front of post office Gokulpuri, Delhi. He came to know that PCR van had taken the injured to the hospital. No witness was available at the spot. He alongwith Ct. Sarnam reached at GTB hospital. He collected the MLC of the injured. Doctor opined the injured unfit for statement.
19. HC Virender duty Ct. in GTB hospital handed over him two yellow colour envelops sealed with the seal of hospital and one sample seal. He seized the same vide seizure memo Ex.PW2/A. No eye witness was available in the hospital. He prepared the rukka Ex.PW7/A on the DD entry itself and sent the same through Ct. Sarnam for registration of case. He reached at the spot. Ct. Sarnam also came on the spot and handed over the copy of FIR and rukka to him. No eye witness met him on the spot and after that he returned to the PS. The case property was Digitally signed by VIRENDER VIRENDER KUMAR SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 7/27 KUMAR BANSAL BANSAL Date:
2024.01.16 16:43:15 +0530 deposited in the Malkhana.
20. On 22.10.2018, he again went to GTB hospital. Doctor opined the injured fit for statement. He recorded the statement of the injured. He searched for the accused but could not be found.
21. On 01.11.2018, he prepared the site plan Ex.PW7/B at the instance of injured Mahipat.
22. An application for surrender was moved by the accused.
On receiving information, on 02.11.2018 he went to the court of Ld. MM. With the permission of the court he formally arrested the accused vide arrest memo Ex.PW6/A. Personal search of accused was conducted vide memo Ex.PW6/B. Accused made the disclosure statement Ex.PW6/C.
23. One day police custody remand of the accused was taken. Accused pointed out the place of occurrence vide pointing out memo Ex.PW6/D. Accused led them to his house and from the room situated on the first floor, from beneath the mattress, accused got recovered one knife which was used in the commission of offence. He prepared the sketch of the knife which is Ex.PW6/E. The knife was put in white cloth parcel, sealed with the seal of PP and seized vide seizure memo Ex.PW6/F. He prepared the site plan of the place of recovery of knife which is Ex.PW7/C. He deposited the MLC of the injured in GTB hospital for obtaining result. The case property was also sent to FSL Rohini through HC Kailash on 06.12.2018. On 20.12.2018, the doctor opined the nature of injury as grievous and the case was converted to section 307 IPC. He also proved Digitally signed by VIRENDER VIRENDER KUMAR SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 8/27 KUMAR BANSAL BANSAL Date:
2024.01.16 16:43:37 +0530 the forwarding letter and FSL result as Ex.PW7/D and Ex.PW7/E. After completion of investigation, he filed the charge- sheet. He correctly identified the knife as Ex.P1.
24. During cross-examination, he stated that he reached at the spot at around 11.00 pm. They remained on the spot for about 5 to 7 minutes. No blood was found at the spot.
25. He prepared the site plan of the spot on 01.11.2018 at around 3.00-4.00 pm. He admitted that there are some shops around the spot. He cannot say if there was any CCTV camera installed at Gopal hardware shop or not. He cannot say if there is another CCTV camera which is installed by government of NCT near the mobile shop of Shyam. He denied the suggestion that he was aware of the presence of CCTV cameras but did not collect the CCTV footage. He did not serve any notice upon the shop owners to join the investigation. He admitted that there remains movement of public persons in the night time at the place of incident.
26. He cannot tell at what time, he reached the hospital on
21.10.2018.
27. He denied the suggestion that recovery of knife was not affected at the instance of accused or the same has been planted upon him. He could not notice any blood stains on the knife. He had not joined any public person at the time of recovery of knife.
28. Dr. Nadeem, Casualty Medical Officer, GTB hospital, was examined as PW8. He deposed that on 21.10.2018, patient was Digitally signed by VIRENDER VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 9/27 KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:43:47 +0530 brought to the hospital at about 11.23 pm, by SI Tejvir Singh, PCR with alleged history of physical assault near Gokulpuri dispensary at about 10.45 pm. A single incised wound 2 x 2 cm at left side of abdomen with bowel loop prolapse was found. The patient was unfit for making statement. He referred the patient to the surgery department and prepared the MLC which is proved as Ex.PW4/A. He also took the blood sample of complainant in a vial and baniyan of the injured which he was wearing, both these items were separately sealed with the seal of hospital and handed over to the duty constable. He also identified the baniyan of the injured as Ex.P3.
29. SI Rakesh was examined as PW9. He was working as duty officer at PS Gokulpuri on 21.10.2018 from 12.00 midnight to 8.00 am. At about 3.50 am, on 22.10.2018, rukka was placed before him by Ct. Sarnam. He made his endorsement in the rukka which is Ex.PW9/A. He got typed the FIR through computer operator and registered the present case. The copy of FIR is proved as Ex.PW9/B. He handed over the copy of FIR alonwgith original rukka to Ct. Sarnam. The certificate under section 65B of Indian Evidence Act is proved as Ex.PW9/C. During the cross- examination, he denied that the FIR is ante-time and ante-dated.
30. Therefore, prosecution evidence was closed. Statement of accused was recorded under section 313 CrPC wherein he denied the entire evidence. He stated that he was at home at that time and he does not consume liquor as such, there is no question of asking for money for liquor. He stated that he did not make any disclosure statement. IO obtained his signature on blank paper and then falsely implicated him. The complainant is also a Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 10/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:43:59 +0530 painter and he is in the same profession. The complainant was holding some grudge against him. There was some fight between the complainant and his friends under the influence of liquor and during that fight, complainant sustained knife injury on his person. In order to save his friend, he has falsely implicated him in this case. He wished to lead evidence in defence. The accused closed his defence evidence without examining any witness on 24.08.2023.
31. At this stage, it was realized that FSL result has not been proved as the witness from FSL who conducted the DNA examination of the exhibits was not examined. Therefore, the expert from FSL was summoned.
32. Saurabh Pathak, Jr. Forensic/ Chemical Examiner (Biology), RFSL, was examined as PW10. He examined the exhibits i.e. sent in three sealed parcels. DNA profiling was generated from the blood sample of the injured Ex.2 was found to be similar with the DNA profile generated from the knife Ex.1 and DNA profile generated from blood found on the banyan of injured Ex.3. He proved his report as Ex.PW7/E. Thereafter, the prosecution evidence was again closed.
33. Statement of accused was again recorded putting him the FSL result in respect of which he stated that blood has been planted on knife to implicate him. He did not wish to lead defence evidence and the case was fixed for final arguments.
34. I have heard ld. Addl. PP for the State, ld. Counsel for the accused and perused the record.
Digitally
signed by
VIRENDER
SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 11/27 VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2024.01.16
16:44:07
+0530
35. Ld. Addl. PP for the State submitted that in this case, prosecution has examined 10 witnesses to bring home the guilt of the accused. All the witnesses have fully supported and corroborated the prosecution story. The injured Mahipat whose name was initially mentioned as Mahipal in the MLC was examined as PW1. He has fully supported and corroborated the case. He stated that on 21.10.2018 when he was returning home after completing his work, the accused met him near Gokalpuri pyau. Accused was under the influence of liquor at that time. Accused asked for money from him for purchasing whisky but he refused. Accused abused him and then stabbed him with a knife on his abdomen and ran away. He has correctly identified the accused. The injured became unconscious and he regained consciousness in the hospital. The MLC of the injured has been proved on record as Ex.PW4/A. The doctor has stated that the injured was found having a single incised wound 2 x 2 cm on left side of abdomen with bowel loop prolapse. The smell of alcohol was also present in his breath. The knife has also been identified by him as the same which was used by the accused. The knife is Ex.P1. The accused got recovered this knife from his room situated on the first floor of his house. It was seized vide memo Ex.PW6/F.
36. In the hospital also one blood sample of the injured was taken and the banyan which he was wearing was also seized as deposed by the doctor. The same were also seized by the IO vide memo Ex.PW2/A. The knife which the accused got recovered, the blood sample and the banyan of the injured having blood stains were sent to FSL for examination. The DNA profile was Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 12/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:44:16 +0530 generated. The report has been proved on record as Ex.PW7/E. According to the analysis, the DNA profile generated from the blood sample of the injured was found similar to the DNA profile generated from the source of knife as well as banyan of the injured. Ld. Addl. PP submitted that this fact clearly shows that the knife Ex.P1 was used in causing injury on the person of injured Mahipat. This important evidence corroborates the testimony of PW1 that it was the accused who stabbed him with knife Ex.P1 on the abdomen of victim. Identity of knife as well as accused has been established.
37. Ld. Addl. PP further submitted that nature of injury has also been opined as grievous. Injury was on the vital part of the body i.e. on abdomen. It has cut the abdomen and bowel loop prolapse from the cut. There was no provocation to the accused to stab Mahipat. The accused has stabbed with a knife Ex.P1 that also on the abdomen clearly shows the intention and also the knowledge of the accused that by stabbing the injured on his abdomen, he would cause his death. Ld. Addl. PP further submitted that all these facts clearly show that onus which was on the prosecution has fully been discharged and it is proved on record that it was the accused who stabbed PW1 with knife Ex.P1 causing grievous injury on his person and committed the offence punishable under section 307 IPC. It is prayed that he be held guilty and convicted for the offence of attempt to murder under section 307 IPC.
38. Ld. Defence counsel submitted that it is a false and frivolous case. No such incident has taken place and that is why there is no eye witness. Ld. defence counsel further submitted Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 13/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:44:25 +0530 that injured was under the influence of liquor which is evident from his MLC Ex.PW4/A wherein it is specifically mentioned that there was smell of alcohol present in the breath of injured. Ld. Defence counsel submitted that infact the injured had consumed liquor with his friends. While returning from his work after consuming liquor, he had a fight with his friends wherein he sustained injury but as the injured was having some grudge against the accused herein, he falsely implicated him in order to save his friend.
39. Ld. Defence counsel further submitted that according to the injured he was removed to the hospital by his wife but his wife has not been examined. Infact IO has not even recorded her statement under section 161 CrPC. This fact shows that the important witness has been withheld by the prosecution. The benefit of the same be given to the accused and he be acquitted.
40. Ld. Defence counsel further submitted that incident has taken place at a public place. According to the IO, the place where incident has taken place, there is movement of public persons throughout the night but no public person has been examined. There are CCTV cameras also installed at the place of incident i.e. in the hardware shop of Gopal and at the mobile phone shop of Shyam also but IO had not collected any CCTV footage because no such incident had taken place and if CCTV footage had been seized it would have disclosed that no such incident at the alleged place of incident had taken place. Ld. Counsel further submitted that the fact that no such incident has taken place at that spot is also evident from the testimony of the IO where he stated that there were no blood stains at the place of Digitally SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 14/27 signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:44:32 +0530 incident and even no eye witness was present.
41. Ld. Counsel further submitted that even there are contradictions in the testimony of witnesses. According to the IO, he gave the rukka to Ct. Sarnam but Ct. Sarnam stated that he had not given any rukka to him and that he has not got the FIR registered.
42. Ld. Defence counsel further submitted that infact no fair investigation has been carried out and no efforts have been made by the IO to find out any independent witness of the incident. Ld. Counsel further submitted that all the proceedings were conducted while sitting in the PS. Accused was falsely implicated and knife was planted upon him. Even the blood was also planted on the knife and that is why a favourable FSL result Ex.PW7/E has been obtained just to implicate the accused and otherwise accused is an innocent person. Ld. Counsel further submitted that keeping in view the contradictions and the fact that there is no eye witness and injured himself was under the influence of liquor, the benefit be given to the accused and he be acquitted.
43. After hearing the arguments and going through the record, I found that in this case, when the charge was framed, the name of the injured was mentioned as Mahipal whereas the injured is Mahipat. It is settled law that every mistake at time of framing of charge is not fatal unless it is shown that it has caused prejudice to the defence of the accused or has resulted into miscarriage of justice. This aspect has been dealt by Supreme court in various judgments. The Supreme Court in the Supreme Court in the case "Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 15/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:44:43 +0530 SCR 1140" has held as follows:
"98. In cases where a charge has been framed and there is an omission or irregularity in it, it is difficult to see how the mode of trial is affected. In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted.
99. Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under Chapter XXVII, must direct a new trial of case in which an accused person has been convicted of an offence with which he had not been charged, if it is satisfied that he had been misled in his defence by the absence of a charge. In such a case a court is bound to act according to its provisions. But this does not mean that by virtue of these provisions that which was invalid shall be deemed to be valid, unless, prejudice was shown.
It is the provisions of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid, unless the court was satisfied that there had been a failure of justice. I regard with concern, if not with dismay, a too liberal application of its provisions to all cases in which there is an absence of a charge, although a charge ought to have been framed. It is difficult to lay down any hard and fast rule as to when the provisions of section 525 will or will not be applicable.
The facts of each case, as they arise, will have to be carefully considered in order to decide that which was 'prima facie' invalid is deemed to be valid by virtue of its provisions. There may be cases where the omission to frame a charge was merely a technical defect in which case section 535 would apply. On the other hand, there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of charges that prejudice may be inferred at once and the conviction which was 'prima facie' invalid continued to be so."
The Supreme Court in the case of "State of West Bengal v. Laisal Haque and Anr (1989) 3 SCC 166" has held that:
"9. In the celebrated case of Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140, Vivian Bose, J. speaking for the Court after an elaborate discussion observed that in judging a Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 16/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:44:52 +0530 question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. That test is clearly fulfilled in the facts and circumstances of the present case. The principles laid down by that very eminent Judge in Slaney's case have throughout been followed by this Court. See K.C. Mathew v. State of Travancore Cochin, (1955)2 SCR 1057, Gurbachan Singh v. State of Punjab, AIR 1957 Supreme Court 623, Eirichh Bhuian v. State of Bihar, 1963 Suppl (2) SCR 328 at pp. 336-37 and State of Maharashtra v. Ramdas Shrinivas Nayak, (1982)2 SCC 463."
The Apex Court in the case of "Lallan Rai v. State of Bihar, 2003 (1) SCC 268" has held that:
"26. It is the conviction under Section 302 which is said to be not in accordance with law and as such Mr. Mishra has been rather vocal and emphatic on that direction. It is axiomatic that procedural law is the hand-maid of justice and the Code of Criminal Procedure is no exception thereto. Its incorporation in the Statute Book has been to sub-serve the ends of justice and non-observance of the technicalities does not and cannot frustrate the concept of justice since technicality alone would not out-weigh the course of justice.
27. We, however, hasten to add that in the event, however, there being prejudice leading to a failure of justice, it cannot but be treated to be an illegality, which is otherwise incurable in nature. In one of the early decisions of this Court (Willie (William) Slaney v. The State of Madhya Pradesh, 1955(2) SCR 1140), the Full Bench declared and settled the law on this score and it seems for all times to come. This Court in a recent decision Kammari Brahmaiah & Ors. v. Public Prosecutor, High Court of A.P. - JT 1999(1) SCC 259) once again reiterated the law so settled by Willie Slaney (supra) in the similar vein and same tune. Incidentally, Willie Slaney (supra) was decided in the year 1955 and on the basis of the then existing Code of 1898, whereas Brahmaiah (supra) has considered the new Code of 1973 and after adumbrating the observations of Willie Slaney, this Court in Brahmaiah observed :
It is in this context Section 464 Criminal Procedure Digitally signed by VIRENDER VIRENDER KUMAR SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 17/27 KUMAR BANSAL BANSAL Date:
2024.01.16 16:45:00 +0530 Code, 1973 ought to be noticed at this juncture. Section 464 Criminal Procedure Code, 1973 reads thus :
"464. Effect of omission to frame, or absence of, or error in, charge - (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit :
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
28. As regards the interpretation of Section 464 this Court has the following to state in Kammari (supra) at paragraph 7 :
"The aforesaid Section is in mandatory terms and specifically provides - what is to be done in cases where charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that charge could be framed and yet it is not framed, but there is no failure of justice, has in fact been occasioned thereby the finding, sentence or order of the Court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case of an error, omission, or irregularity in charge re-trial of the case is to be directed under sub-section (2)."
Incidentally, Section 464 corresponds to the provi- sions contained in Sections 232(2), 535 and 537(6) of the old Code.
Digitally
signed by
VIRENDER
SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 18/27 VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2024.01.16
16:45:12
+0530
29. It is in this context the law laid down by this Court in Kammari (supra) ought also to be noticed. This Court in paragraph 14 of the report stated as below :-
"14. The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities."
44. In the facts of the present case and keeping in view the law as laid down by the Apex Court of the land, I found that there is no such position in the present case that any prejudice is caused or it has resulted into miscarriage of justice by mentioning the name of injured as Mahipal in place of Mahipat as injured as well as the accused were knowing each other very well even prior to the incident. During the entire trial and even at the time of recording of statement under section 313 CrPC it is not reflected anywhere that any prejudice has been caused to the accused due to wrong mentioning of the name of injured at the time of framing of charge. Even during the course of arguments, it has not been pointed out by the defence or argued that due to wrong mentioning of name of injured in the charge as Mahipal in place of Mahipat it has caused any prejudice to the defence of the accused or has resulted into miscarriage of justice. Keeping in view this position I do not find that this wrong mentioning of name of injured in charge has resulted into vitiating the trial.
45. In the present case, there is only one eye witness who is also injured. He has specifically stated that it was the accused Digitally signed by VIRENDER VIRENDER KUMAR SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 19/27 KUMAR BANSAL BANSAL Date:
2024.01.16 16:45:20 +0530 who stabbed him as he had not given money to the accused for purchasing liquor. So far as identity of accused is concerned, there is nothing on record to discredit the testimony of PW1. So far as injury on the person of injured is concerned, there is no such cross-examination to the injured that the injury sustained by injured is self inflicted. It is rather important to note that PW1 denied that he had consumed liquor with his friends and a quarrel had taken place between him and his friends wherein he sustained injuries. Merely because there was smell of alcohol in his breath does not establish that he was under the influence of liquor at that time.
46. Ld. Counsel tried to make out a case that it was the wife of accused who accompanied him to the hospital but the MLC does not discloses that and mentions that it was ASI Tejvir who brought the injured to the hospital and also informed the doctor that injured has been physically assaulted near Gokulpuri dispensary at about 10.45 pm. Under the circumstances, non- examination of the wife is not fatal for the prosecution case as she is not an eye witness. It is important to note that injured no where deposed that his wife was present at the time of incident. Infact he stated that no other person was present at the spot at the time of incident.
47. So far as the argument that no public witness has been joined, the injured himself has stated that there was no other person present at the time of incident. IO has also stated that no eye witness met him either on the spot or in the hospital. He met neighborers at the spot also but none came forward, hence, on Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 20/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:45:30 +0530 this ground the story of the prosecution cannot be thrown away that also when the statement of the injured inspires confidence. There is no such law that a person cannot be held guilty and convicted on the statement of a single witness. If the witness is reliable, trustworthy, inspires confidence then a person can be held guilty even on the testimony of a sole witness. The Supreme Court of India held in the case "Takdir Samsuddin Sheikh v. State of Gujarat, AIR 2012 SC 37" wherein it is held as under:
"9. We are of the view that all omissions/contra- dictions pointed out by the appellants counsel had been trivial in nature, which do not go to the root of the cause.
It is settled legal proposition that while appreciating the evidence, the court has to take into considera- tion whether the contradictions/omissions/improve- ments/embellishments etc. had been of such magni- tude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or im- provements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural course would not be justi- fied in reviewing the same again without justifiable reasons. Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra, (2010)13 SCC 657
10. The complainant Shri Bharat Rajendraprasad Trivedi (PW.1) is the sole eye-witness. It has been submitted on behalf of the appellants that being a sole and an interested witness, his evidence cannot be relied upon without corroboration. The submissions advanced in this respect had been that Shri Bharat Rajendraprasad Trivedi (PW.1) being a partner in the Firm would be beneficiary in the transaction of land involved herein in case one partner had been eliminated and other partner landed in jail. Such an argument is not acceptable for two reasons :
(i) While appreciating the evidence of witness Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 21/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:45:38 +0530 considering him as the interested witness, the court must bear in mind that the term interested postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. (Vide: Kartik Malhar v. State of Bihar, 1996(1) R.C.R.(Criminal) 308 : (1996)1 SCC 614; and Rakesh & Anr. v. State of Madhya Pradesh, JT 2011(10) SC 525).
(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras, AIR 1957 Supreme Court 614; Sunil Kumar v. State Govt. of NCT of Delhi, (2003)11 SCC 367; Namdeo v. State of Maharashtra, (2007)14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal, 2010(4) R.C.R.(Criminal) 101.
48. Ld. Counsel also submitted that witness has stated that he cannot identify the knife, hence, this knife cannot be connected with the commission of offence. I have gone through the testimony of PW1, he stated that he may not be in a position to identify the knife as he became unconscious after sustaining injury but when the knife was shown to him he was able to identify the knife as Ex.P1, hence, these arguments does not carry any weight. Even otherwise, the scientific evidence which Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 22/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:45:46 +0530 has been brought on record in the form of DNA examination proved as Ex.PW7/E shows that DNA was generated from the knife and it matched with the DNA profile generated from the blood sample of the injured and also from the blood found on the banyan of the injured. This essential evidence further corroborates the testimony of PW1 that it was this knife which was used in the commission of offence.
49. The knife was got recovered by the accused from his house. Both the witnesses are consistent in this regard i.e. PW6 Ct. Sarnam and PW7 ASI Prempal. Both witnesses stated that accused got recovered this knife from beneath the mattress from a room situated on the first floor of his house. No doubt public persons was not joined in the proceedings but non joining of public witnesses by itself does not make the recovery doubtful when the two witnesses are consistent and corroborating each other. Even otherwise, there is no such law that testimony of a police witness can be relied upon only if there is corroboration to the same. In having this opinion, I am fortified by the judgment cited as "Tahir Singh v State, (1996) 3 SCC 338", wherein it is held as under:
"6. Mr. D.D. Thakur, the learned senior counsel ap- pearing for the appellant, submitted that PW-4 to PW-7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reli- able, unless corroborated by some independent evi- dence. The Rule of Prudence, however, only requires Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 23/27 BANSAL Date:
2024.01.16 16:45:54 +0530 a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some in- dependent witness of the locality to lend corrobora- tion to their evidence does not in any way affect the creditworthiness of the prosecution case."
The Supreme Court in the case of Govindaraju @ Govinda v. State by Sriramapuram P.S., (2012) 4 SCC 722, wherein it was held that:
"17. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffices it to note that even in the case of Girja Prasad (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217, a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. This principle has been referred to in a plethora of other cases as well."
Hence, in my opinion, so far as recovery of knife is concerned, that also stands proved.
50. Ld. Defence counsel had also raised issue of CCTV camera but no such evidence has been brought on record that Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 24/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:46:05 +0530 there was any CCTV camera installed near the place of incident covering the place of incident. Though the defence has alleged that there were CCTV cameras at the shop of Shyam and Gopal but none of them has appeared to depose in this regard. The accused had taken time to lead defence evidence but thereafter, he closed the defence evidence without examining any witness.
51. Ld. Defence counsel has also argued that according to Ct. Sarnam he has not taken the rukka to PS for registration of FIR but I found that in the examination in chief he has stated that the IO prepared the rukka and handed over the same to him for registration of FIR but during cross-examination a court question was put which is reproduced hereunder:
"Court question: Since you have stated that statement of complainant was not recorded by the IO in your presence on 21.10.2018. Can you clarify whether rukka was taken by you for registration of FIR?
Ans. I do not recollect in case I had taken the rukka/ tehrir for registration of FIR".
From this statement, it cannot be inferred that he has not taken the rukka. Infact in this case the rukka was not sent on the statement of the injured/complainant but on the DD itself as the doctor declared the injured unfit for statement. Charge-sheet also shows that the rukka was not sent on the statement of the complainant but it is only GD No.45A Ex.PW9/1. In the rukka itself, it is mentioned that it is sent through Ct. Sarnam. Even the duty officer PW9 SI Rakesh deposed that the rukka was placed before him by Ct. Sarnam and Ct. Sarnam in his examination in Digitally signed by SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 25/27 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:46:13 +0530 chief stated that he took the rukka. During cross-examination also he is not denying that he has not taken the rukka but only stated that he is not able to recollect whether he has taken the rukka for registration of FIR. That also when he was questioned that as the statement of complainant was not recorded in his presence whether he has taken the rukka. Under the circumstances, I do not find any such contradictions which goes to the root of the case demolishing the same.
52. In view of the above discussion, I found that prosecution has proved and established that it was the accused who stabbed on the left side of abdomen of injured Mahipat with knife Ex.P1. As deposed by the doctor, the injury was 2 x 2 cm on the left side of the abdomen with bowel loop prolapse. The injury has been opined as grievous. The injuries are on the vital part of the body and without any provocation. The accused has stabbed the injured with the knife on the vital part. From this fact it can be inferred that he had the knowledge that by stabbing a person on his abdomen, he might cause his death. The intention can also be inferred from this fact as the same is always locked in the mind of accused and there cannot be any direct evidence with respect to the intention. Keeping in view the circumstances that on the refusal of the victim to give money to the accused for consuming liquor, he took out the knife Ex.P1 and stabbed on the left side of abdomen of victim causing grievous injury on his person. In my opinion, it can readily be inferred that he had the knowledge and intention that by stabbing PW1 he would cause his death. In my opinion, the onus upon the prosecution is fully discharged and it is proved on record that it was the accused who stabbed the victim on his abdomen with knife Ex.P1. Accordingly, accused Digitally signed by VIRENDER SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 26/27 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2024.01.16 16:46:24 +0530 Jagdeesh Kumar @ Bihari is held guilty and convicted for the offence punishable under section 307 IPC.
ANNOUNCED IN THE OPEN COURT ON 16th JANUARY, 2024 Digitally signed by VIRENDER VIRENDER KUMAR BANSAL KUMAR Date:
BANSAL 2024.01.16 16:46:38 +0530 (V. K. BANSAL) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI SC No.149/19 STATE Vs. JAGDEESH KUMAR @ BIHARI Page 27/27