Delhi District Court
State vs Gaurav Sharma on 7 February, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 708/2018 CNR No. DLCT01-011993-2018
FIR No. 274/2017
U/Sec. 308/326/34 IPC
P.S. Burari
STATE VERSUS GAURAV SHARMA & ORS.
(i) SC No. of the case : 708/2018
(ii) Date of commission of offence : 11.06.2017
(iii) Name, parentage and address : 1. Gaurav Sharma
S/o Sh. Vinod Sharma
R/o H.No. 1034
Gali No. 9, Part-II Jharoda
Burari, Delhi
2. Ravi Sisodia
S/o Sh. Om Prakash
R/o H.No. 1030
Gali No. 9, Part-II Jharoda
Burari, Delhi
3. Renu Sharma
D/o Sh. Vinod Kumar
R/o H.No. 1034
Gali No. 9, Part-I Jharoda
Burari, Delhi
4. Sangeeta
D/o Sh. Vinod Sharma
R/o H.No. 1034
Gali No. 9, Part-I Jharoda
Burari, Delhi
SC No. 708/2018
FIR No. 274/2017
State Vs. Gaurav Sharma & Ors. Page 1 of 48
5. Sandhya Sharma
W/o Late Sh. Jag Mohan
R/o H.No. 1034
Gali No. 9, Part-I Jharoda
Burari, Delhi
(iv) Offence complained of : Under Section 308/326/34
IPC
(v) Plea of the accused : Pleaded not guilty and
claimed trial
(vi) Final order : Convicted
Date of Institution : 15.09.2018
Date of Judgment reserved on : 03.02.2025
Date of Judgment : 07.02.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of Sh.
Lalit Sharma/PW-1 vide complaint Ex.PW1/A. It is stated by the complainant that he is driver of e-rickshaw. On 11.06.2017 around 9:30 PM he alongwith his father Sh. Parshuram Sharma/PW-8 and the neighbour Sh. Mohar Singh/PW-9 were sitting outside their house on the slab and they were talking with each other. At that time accused no. 4 Ms. Sangeeta alongwith her daughter accused no. 3 Ms. Renu and their mother accused no. 5 Sandhya came to them. The above three accused asked to marry Ms. Supriya, sister-in-law of the complainant with the SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 2 of 48 accused no. 2 Ravi. They had claimed that accused Ravi is earning salary of Rs.25,000/- per month. The father of the complainant Sh. Parshuram/PW-8 had replied that father of Ms. Supriya has since expired and they will find out a good boy and then they will marry Ms. Supriya. It is further replied that accused no. 2 Ravi is not doing any valuable work and used to squander around without any work. The complainant had replied that accused no. 2 Ravi is so good then why the above accused do not marry their own daughter with him. Immediately the accused no. 4 and her daughter started slapping the complainant. On this the complainant tried to save himself by getting backwards. Then the complainant had seen that accused no. 5 was slapping their father. When complainant tried to save his father then at that time the son of accused no. 4 namely Gaurav/accused no. 1 reached at the spot with a cricket bat in his hand alongwith his friend accused no. 2 Ravi having one wooden stick in his hand. The accused Gaurav had hit with bat the complainant on back side of his head and the accused no. 2 Ravi had hit on the forehead of the complainant with the wooden stick. On this the father/PW-8 of the complainant/PW-1 had tried to save the complainant. On this accused no. 2 Ravi started beating the father of PW-1 with a wooden stick. The accused no. 3 Renu had thrown some liquid substance towards PW-1 and to save himself the complainant had stepped backwards. However some part of the thrown liquid fell on the feet of PW-1. With this substance the complainant was feeling lot of burning and irritable sensation on his feet. On hearing the noise the neighbours had collected. PW-9 had tried to pacify the matter and asked the accused that why they are beating PW-1 and PW-8. On this accused no. 1 Gaurav had hit bat on the head of PW-9 Mohar Singh. Thereafter PW-1 had SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 3 of 48 called at 100 number and informed the police. In the meanwhile the accused person who was staying at Gali No. 9, Surinder colony, Part II, Jharoda Majra ran away from the spot. PW-1 had taken away his father/PW-8 to Arun Asaf Ali hospital and PW-9 Mohar Singh was taken to hospital by his son/Jeet Singh. The police had investigated the matter and filed the chargesheet on which all the accused were summoned.
2. Charge was framed against all the accused on 20.03.2019 under Section 326/34 IPC and Section 308/34 IPC to which all the accused have pleaded not guilty and have claimed trial. Thereafter prosecution had examined prosecution witness from PW-1 to PW-14. Ld. APP for the State vide separate statement had dropped the witness PW/ASI Nanhe Lal who was suffering from paralytic attack. The signature of PW/ASI Nanhe Lal were identified by ASI Brij Lal Singh/PW-12 during his testimony. The statement of accused was recorded under Section 313 Cr. P.C. on 31.01.2020. The accused person has preferred to lead evidence in defence. The defence witness are DW-1 Ms. Supriya, DW-2 Sh. Maan Singh, DW-3 Sh. Ram Chandra and DW-4 Dr. Kuldeep, CMO Aruna Asaf Ali Hospital. DW-1 and DW-3 are staying in the same gali no. 9 where the incident had occurred and DW-2 is resident of gali no. 8 near the spot of incident and DW-4 has deposed on MLC of accused no. 3 Renu. On application of the accused person under Section 311 Cr. P.C to recall PW-1 and PW-8 for cross-examination was allowed after which additional Statement of all the accused was recorded on 05.11.2024. Accused persons have preferred not to lead evidence in defence after recording of additional statement under Section 313 Cr. P.C. SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 4 of 48
3. The ld. Counsel for accused has relied on following citations:
(i) Bhagwan Sahai & Anr. Vs. State of Rajasthan (2016) 13 SCC 171
(ii)State of Uttar Pradesh Vs. Munni Ram & Ors. (2010) 14 SCC 364
(iii) State (Delhi Admn.) Vs. Mange Ram 2005 (81) DRJ 26
4. Final arguments are heard on behalf of both the parties and record perused.
5. To prove the offence the prosecution is required to establish the ingredients laid down under Section 308 IPC at para No.19 of citation titled Bali v. State Through Government of NCT CRL. A. 36/2021. The relevant para 19 is reproduced hereasunder:
"19. A bare reading of Section 308 IPC would show that to prove the commission of an offence thereunder, two ingredients are required to be established:
(i) that an act was committed, and
(ii) that the act was committed with such intention or knowledge and under such circumstances that, if death was caused by the act, the accused would be guilty of culpable homicide not amounting to murder."
6. Hence the prosecution has to prove as under:
1. The accused has committed a wrongful act.
2. Such wrong act was carried/committed out with such an intention or knowledge if death was caused by such an act.
3. The act was committed under such circumstances that, if death was caused by the act, the accused would be guilty of SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 5 of 48 culpable homicide not amounting to murder.
7. The first ingredient the prosecution has to prove that the act was committed by the accused person. PW-1 has deposed that on 11.06.2017 around 9 PM he came back to his house after doing work of e-rickshaw driver. At that time his father PW-8 and neighbour PW-9 were sitting on slab in front of the house and talking with each other. PW-1 was standing there. In the meantime accused no. 2, 3 and 4 who were correctly identified before the Court came there and asked PW-8 about wedding prospect of Ms. Supriya i.e. sister-in-law of PW-1 with accused no. 2 Ravi. The accused had stated to the father/PW-8 that accused no. 2 was earning about Rs.25,000/- on which PW-8 had replied that since father of Ms. Supriya had expired and they have to look for some better groom for Ms. Supriya. It was further stated that antecedents of accused no. 2 Ravi are not good who used to roam without any work. It was further stated that if accused no. 2 Ravi is a good boy then why the accused no. 3 to 5 do not marry their own daughter with him. Immediately thereafter accused no. 2 and 3 had slapped PW-8 2-3 times. Accused no. 5 Sandhya had also slapped. PW-1 rushed to save his father and at that time accused no. 1 Gaurav and accused no. 2 Ravi correctly identified before the Court came there. Accused Gaurav was armed with cricket bat and accused Ravi was carrying Danda. Accused no. 1 Gaurav had hit cricket bat on the back side of head of PW-1 and accused no. 2 Ravi had struck Danda on the forehead of PW-1. When PW-8 came to rescue PW-1 in the meanwhile accused Ravi threw multiple blow by Danda on the body of PW-8. Accused no. 3 Renu had threw some liquid substance carrying in a plastic box on PW-1 and to save himself PW-1 went back. However SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 6 of 48 some liquid substance had fell over his leg which resulted in inflammation/burns on his leg. The neighbour Mohar Singh tried to intervene but accused no. 1 struck cricket bat over head of Mohar Singh/PW-9. PW-1 made a call at 100 number and in the meantime all the accused managed to run away from the spot. The PW-1 went with PW-8 to Aruna Asaf Ali hospital in e-rickshaw and PW-9 Mohar Singh went to hospital with his son. Stitches were received by PW-1 with burn injuries. The complaint is Ex.PW1/A. The accused Gaurav got recovered bat from his house which was seized vide memo Ex.PW1/B and identified by PW-1 before the Court as Ex.P1 and accused Ravi got recovered Danda from his house which was seized vide memo Ex.PW1/H and identified correctly by PW-8 as Ex.P2.
8. PW-10/W/Ct. Sangeeta has identified the cricket bat as Ex.P1 recovered at the instance of accused no.1 Gaurav. The Danda is identified as Ex.P2. PW-11/W/Ct. Monika has correctly identified cricket bat Ex.P1 recovered from accused Gaurav. The Danda is identified as Ex.P2. PW-14/SI Rambir Singh has correctly identified cricket bat Ex.P1 recovered from accused Gaurav. The Danda is identified as Ex.P2. All the above witnesses have deposed that Danda was recovered at the instance of Lalit whereas Lalit is PW-1/complainant in this case.
9. As per complaint Ex.PW1/A call at 100 number was made by PW-
1. As per FIR Ex.PW2/A the information was received at PS on 12.08.2017 at 10:55 AM and the incident had occurred at 9:30 PM on 11.06.2017. Vide Ex.PW7/A which is DD no. 30PP at 10:05 PM dated 11.06.2017 the call of altercation was received vide mobile no.
SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 7 of 489911848538 and it is submitted by ld. Counsel for accused that this mobile number belongs to accused no. 4 Sangeeta. PW-8 at page 2 of his examination-in-chief has deposed that he had made a call at 100 number. Ld. Counsel for accused has submitted that this fact creates doubt in the case of the prosecution that who had made complaint to the police. PW-1 in cross-examination dated 22.04.2024 has deposed that he was not carrying mobile phone at the time of incident and the call to the police was made from the mobile of neighbour. He did not inform the police about the name of said neighbour. The call at 100 number was made one hour after the incident i.e. at 10:30 PM. Police had reached at the spot at 11:30 PM. Police had recorded his statement at the spot. PW-8 went to police chowki in the morning of 12.06.2017 and therefore they had manipulated the story for such delay in lodging a FIR. The PW-8 has deposed further that they visited the office of DCP and only then police visited the spot on 13.06.2017. It is noted that vide DD No. 30PP dated 11.06.2017 Ex.PW7/A ASI Nanhe Lal Mishra was assigned the task on report of altercation at 10:05 PM.
10. It is submitted by ld. Counsel for accused that no public witness was joined by the IO. Whereas PW-8 at first page of his cross- examination dated 24.09.2024 has deposed that whole locality people had accumulated there. It is submitted that non-joining of public witness creates doubt in the case of the prosecution. PW-12 in his examination- in-chief dated 04.12.2019 at first page has deposed that they had found many person gathered at the place of occurrence. No eye witness met them at the spot nor any eye witness has met in the hospital. The injured person have already been discharged from the hospital when they SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 8 of 48 reached the hospital. However PW-9 Mohar Singh was found unfit for statement at Trauma Centre hospital. It is further submitted that non- examination of public witness creates doubt in the case of the prosecution.
10.1 It is noted that there is no rule of law or evidence which lay down that unless and until the testimony of police official is corroborated by some independent evidence the same cannot be believed. It is rule of prudence and more careful scrutiny is required to rule out if the witness are interested in the result of the case projected by them. The said law was laid down in case titled Mustakeen @ Bhura vs State (Govt. of NCT Delhi). The relevant para of which is reproduced hereasunder:
The Hon'ble High Court of Delhi in case titled Mustakeen @ Bhura vs State (Govt.of NCT Delhi) on 2 November, 2020 CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020.
16. The Ld. Trial Court has mainly based the conviction on 3 points:
(a) Testimony of PW 11 (eye witness)
(b) Recoveries
(c) Presumption U/s 114 of the Evidence Act.
26. Before proceeding any further, we must not forget that PW 11 is a police official who has received police training before joining the police force, so keeping this in mind, we have to analyze his testimony. According to PW 11, he had tried to stop 4 persons who were escaping on the motorcycle. The time of the incident is around 8:15 p.m. on early March (6th March) and it was night time, PW 11 had only a very brief encounter with the persons who were escaping on the motorcycle. So in such a short period of time, it is very difficult for anyone to remember the faces of 4 persons at a go and that too when he claims to have seen them at night time on the road. In his statement U/s 161 Cr.P.C. recorded on 07.03.2011, PW 11 has not given any description/facial features in regard to any one of the person escaping on the motorcycle what to talk of 4 persons. According to this witness, he chased the SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 9 of 48 motorcycle for about 50-60 yards but he nowhere states that he had seen the faces of the persons, who were escaping on the motorcycle while he was chasing them on foot, and there is nothing in his testimony to suggest that the persons on the motorcycle were looking back at him while they were making good their escape. According to PW 11 he had tried to trace the accused persons on his motorcycle, but we fail to understand why he did not alert the other beats of his area when, according to his testimony, there were other 11 beats in the said area.
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false defence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 10 of 48 U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114 (a) of the SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 11 of 48 Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession. Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.
73. To sum up, the Trial Court has failed to appreciate the testimony of PW 11 Ct. Kuldeep in its right earnest, and has wrongly placed reliance on his testimony for the reasons discussed hereinabove in the judgment; the Trial Court has also erred in believing the arrest version of the appellants and the recoveries effected from them; the Trial Court has wrongly relied on the provisions of Section 114 (a) of the Indian Evidence Act while coming to the conclusion of guilt against the appellants; the Trial Court has further erred in not looking to the fact as to whether on the date of the incident the deceased was carrying the amount as alleged by the prosecution; the Ld. Trial Court has also wrongly relied upon the case of the prosecution in regard to the recovery of the country made pistol and its connection with the appellant Mustakeem, and the Trial Court has further failed to appreciate that except the disclosure statement, there is no evidence against the appellants.
10.2 Further, this is not the case of recovery where prior independent witness is necessary. Even the information was given to the police belatedly by the complainant and the first information given to the police by the accused person vide Ex.PW7/A. Hence the naturally police/investigating agency could not find eye witness at the spot on the next day. In these circumstance of the case non joining of public witness in this case does not weaken the case of prosecution in any manner.SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 12 of 48
11. PW-1 in cross-examination dated 22.04.2024 at page 4 has deposed that police had prepared Naksha Moka in his presence and he had signed it. Whereas site plan Ex.PW12/B does not bear signature of PW-1.
11.1 The PW-1 has incorrectly deposed that the site plan was signed by him which is Ex.PW12/B and which is not signed by PW-1. However the site plan shows the place at which the incident has occurred or the fight has taken place. In cross-examination of PW-1 there is no suggestion that accused no. 3 to 5 were not present at the spot and suggestion was given to PW-1 that accused no. 2 Ravi was not present at the spot and the plea of alibi was taken which is considered further in the judgment. Further, the Ex.PW7/A DD No. 30 PP reports that the incident had occurred at gali no. 9, Jharoda Majra, Part II near Valmiki temple and the said information was given from mobile no. 9911848938. Ld. Counsel for accused submits that this mobile number belongs to accused Renu. Hence there is no doubt of occurring of incident as per site plan ExPW12/B which is also corroborated by site plan Ex.PW12/B. Hence the incorrect deposition of PW-1 does not harm the case of the prosecution in any manner.
12. PW-8 in his examination-in-chief at first page dated 04.12.2019 has deposed that accused no. 3 to 5 had caught hold of his collar and started dragging PW-8 by the collar and it is submitted by the ld. Counsel for accused that PW-8 hence improved upon his version. No statement under Section 161 Cr. P.C. was recorded by the police of PW-SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 13 of 48
8. 12.1 When the statement under Section 161 Cr. PC of PW-8 was not recorded by the police then there is no basis with ld. Counsel for accused to say that PW-8 has improved upon his earlier version. The deposition of PW-8 is that accused no. 3 to 5 caught hold of his collar and started dragging him and that the mother of accused no. 4 who is accused no. 5 started slapping PW-8. The fact of catching hold of collar of PW-8 by accused no. 3 to 5 is neither mentioned in the FIR nor the same is mentioned in Ex.PW1/A or in deposition of PW-1. Hence in such view of the matter PW-8 has improved his version to what actually is the case narrated by PW-1. However such improvement in the case of prosecution is therefore discarded but still there is reliable evidence as to slapping of PW-8 by the accused persons as discussed above. The accused person had visited the spot as per site plan Ex.PW12/B. Accused had no reason to visit there which shows that they had visited there and are aggressor in the case.
13. PW-1 at page 3 of his cross-examination dated 22.04.2024 has deposed as correct that accused no. 4 Sangeeta came to PW-8 on 11.06.2017 asking that Ms. Supriya and accused no. 2 Ravi are in relation with each other and they are to be married. She came alongwith her daughter between 5-5:30 PM on 11.06.2017 and at that time accused Ravi and accused Gaurav did not come. It is noted that PW-1 has improved his version of earlier visit by accused no. 4 Sangeeta and her daughter prior to 9:30 PM whereas it is the case of PW-1 that he reached at home around 9:30 PM after work of driving e-rickshaw. Further, PW-1 SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 14 of 48 in cross-examination at page 2 dated 30.07.2019 has deposed that he left the spot about 9 PM and reached the hospital alongwith his father at 9:30 PM. It is deposed at page 1 of cross-examination dated 22.04.2024 that PW-1 last time went for work at 12 PM and returned back at home by 5 PM in the evening. In the present case the PW-1 has deposed that on that day he had returned at 9:00 PM from work and not at 5 PM on 11.06.2017. Hence PW-1 cannot know the earlier visit made if any by accused no. 4 and her daughter and thereby PW-1 has improved his version. It has to be seen that whether the above improvement is material to the facts of the case. It is not asked from PW-1 during cross- examination that whether this knowledge of visit around 5 PM on 11.06.2017 was hearsay or was from his personal knowledge. Without bringing this evidence on record it cannot be said that it is a contradiction in the nature of material improvement. As per own deposition of PW-1 he returned from work at about 9 PM and therefore he could not be present at 5 PM unless so specifically stated by him. His deposition cannot be read as contradiction in absence of putting of such facts to PW-1 by the defence.
14. It is submitted by the ld. Counsel for accused that PW-1 in cross- examination dated 22.04.2024 at page 2 has admitted that he had previous enmity with the family of accused person. PW-8 in cross- examination dated 04.12.2019 at page 2 and 3 has deposed as correct that one FIR was lodged three years back at PS Burari in the year 2012 against all the accused person which was prior to this incident in which Sh. Naresh son of PW-8 was beaten up by all the accused person. It is admitted as correct that their relationship with all the accused person are SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 15 of 48 strained since the year 2012. Hence it is submitted that on non-disclosure of previous enmity by the complainant and prosecution witness shows motive with them to implicate accused person falsely and to manipulate the facts.
15. It is submitted by ld. Counsel for accused that PW-8 was discharged from the hospital in half an hour which was so deposed by PW-8 in cross-examination dated 24.09.2024 at page 2. It is submitted that PW-8 was in stable condition.
16. It is argued by the ld. Counsel for the accused that PW-9 during his examination and cross-examination on 04.12.2019 has not deposed that PW-8 had stated to the accused to marry their own girl with accused no. 2 Ravi. It is further deposed by PW-9 at page 2 that he had heard that Ms. Supriya and accused no. 2 Ravi got married. He is not aware of any dispute between accused no. 3 Renu and the complainant/PW-1 Lalit or that PW-1 is accused in another case whereas accused no. 3 Renu is complainant in that case. It is submitted that previous enmity has been suppressed by the complainant and to take revenge the complainant had falsely implicated the accused person.
16.1 There is existence of previous enmity between the parties which is found suppressed in the case by the prosecution which shows that there was motive available with PW-1 and PW-8 to falsely implicate the accused person. Hence the evidence of prosecution witness has to be read with caution. The improvements are seen in the evidence of prosecution witness. The withholding of relevant fact in deposition by SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 16 of 48 PW-9 that PW-8 replied to the accused person to marry their own girl with accused no. 2 Ravi shows that PW-9 is trying to save incriminating words spoken by PW-8 due to which there was escalation of fight between the accused and the complainant. Hence it is a mitigating circumstance in favour of the accused which shows that how factually fight had started between the parties in the case.
17. PW-1 in his complaint Ex.PW1/A has stated that accused no. 3 Renu had thrown liquid which had fell on the feet/legs of PW-1 due to which PW-1 got burns in his feet. Whereas PW-4 Sh. Nawal Kishore Joshi, Sr. Scientific Officer has deposed that he had examined the parcel marked as Q3 and submitted his FSL report dated 15.09.2017 Ex.PW4/A. Upon examination of the sample Mark Q3 which is dried concrete material stated to be Earth control and liquid substance did not find containing sulphuric acid, nitric acid and hydrochloric acid. However the FSL report ExPW3/B from Biology division proved that concrete material Ex.Q1 and Ex.Q2 have result that it contained blood of human origin. However it did not react with A, B or O group.
18. PW-5 Dr. Kuldeep, CMO from Aruna Asaf Hospital has deposed on MLC of Lalit/PW-1 which is Ex.PW5/B and the nature of injuries are recorded as simple. He had medically examined the injured PW-1 vide MLC Ex.PW5/B and PW-8 vide MLC Ex.PW5/A. On MLC of PW-8 Ex.PW5/A the nature of injuries are recorded as simple by Dr. Shikhar Dogra, SR (Ortho) on whose body swelling and tenderness in left forearm, multiple small abrasion over back right hand, near thumb, abrasion over left shoulder region was reported. On medical examination SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 17 of 48 of PW-1 it was found by PW-5 that there were burn on left foot/left ankle approximately 8x6cm size. Multiple small burn over right leg front side and open lacerated wound over mid parietal region at scalp 3x0.5cm into skin deep. In cross-examination it is deposed that injuries are fresh and he cannot tell by what substance the burn injuries were caused to PW-1 Lalit Sharma.
18.1 Ld. Counsel for the accused has submitted that the nature of chemical used is not proved by the prosecution on record and no chemical could be proved in deposition of PW-4 the witness from FSL and therefore it cannot be said that the burn injuries were sustained by PW-1 but due to throwing of any acid. It is noted that as per deposition of PW-5, PW-1 has suffered multiple small burn over right leg front side and burn over left foot (left ankle). It is deposed that the injuries were fresh. Even when the nature of chemical could not be ascertained but combined reading of deposition of PW-5 and PW-1 proves that some liquid substance was thrown by accused no. 3 Renu on PW-1 due to which PW-1 had sustained such burn injuries. It was laid down in citation titled Bali Vs. State Through Government of NCT from Hon'ble High Court of Delhi that when the eye witness and in medical evidence on record the nature of weapon of offence is described and proved then merely because the knife was not recovered during investigation the same cannot be factor to discard the evidence of prosecution witness. The non-recovery of weapon of offence in such case is of no consequence. In the present case also the non ascertainment of chemical thrown by accused no. 3 Renu is of no consequence when it is proved on record that she had thrown such liquid on PW-1 and the injuries were SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 18 of 48 proved fresh by PW-5 whose evidence was found unimpeached and unrebutted. The relevant para of citation referred above are reproduced hereasunder:
The Hon'ble High Court of Delhi in case titled Bali vs State Through Government of NCT on 14 March, 2022 in CRL. A. 36/2021
17. In the present case, a perusal of the testimonies of Bhagirath and Om Prakash would show that both, the first as well as the second incident, have been described without there being any material improvement or contradiction. Reportedly, both the victims received injuries at the hand of the appellant. The factum of their having received injuries is duly corroborated by their MLCs, which were prepared immediately after the second incident.
Further, there is no delay in registration of the case. In these facts, this Court finds the testimonies of the injured witnesses to be both credible and reliable.
18. Before proceeding further, it is deemed apposite to advert to Section 308 and Section 324 of the IPC, which prescribe as follows:-
Section 308 IPC "308. Attempt to commit culpable homicide.-- 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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section." 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 a 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, SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 19 of 48 shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." xxxxxxxxxxxxxxx
20. On the other hand, to prove the commission of an offence under Section 324 IPC, the ingredients required to be established are as follows:-
(i) that hurt was caused by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a 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
(ii) that such hurt was caused voluntarily
(iii) that the case is not covered by Section 334 IPC.
21. It is noted that the Supreme Court, in Bishan Singh and Another v. State reported as (2007) 13 SCC 65, while holding the conviction of the accused under Section 308 IPC unsustainable, had held as follows:
"11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one was grievous, being a fracture on the arm, which was not on the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof."(emphasis added)
22. In Roop Chand v. State (NCT) of Delhi reported as MANU/SC/0969/2020, while modifying the conviction of the appellant from one under Section 308 IPC to that under Section 324 IPC, the Supreme Court observed as under:-
"12. Accepting true what the injured has deposed, we find it difficult to hold that the Appellant had any intention or knowledge to inflict such injury which could cause the victim's death within the meaning of culpable homicide not amounting to murder. The Appellant had in a fit of rage inflicted singular injury on the left SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 20 of 48 temple of the injured and made no attempt to repeat such attack or strike a second blow, which indicates that he did not intend to cause any fatal injury. Similarly, given the facts of this case, it would be far-fetched to hold that the Appellant knew that his actions were likely to cause the death of the injured.
13. We are, thus, of the opinion that the evidence on record falls short of establishing the requisite ingredients of Section 308 of Indian Penal Code, though the Appellant is undoubtedly guilty of voluntarily causing hurt with a sharp-edged weapon within the meaning of Section 324 of Indian Penal Code."
23. Based on a reading of judicial dicta on the issues involved in the present case, suffice it to note that every incident of stabbing with a knife/sharp object, if proved, does not ipso facto lead to a conclusion that death of the injured was likely by the act of the accused. In fact, the nature of the actual harm/injury, if any, resulting from the act is inconsequential under Section 308 IPC. What is required to be proved is the intention or knowledge on the part of the accused to cause the act under such circumstances that if death was caused, the act would be adjudged as culpable homicide not amounting to murder. Needless to add, the said intention or knowledge has to be discerned from the facts and circumstances of each case, including the nature of injuries suffered by the victim(s) and the kind of weapon(s) used. Xxxxxxxxxxxx
25. As per the prosecution case, two incidents had taken place between the accused persons and the victims. The first incident took place in the morning of 18.09.2015 when the appellant reportedly teased Om Prakash and gave beatings, which was not reported. The second incident occurred when Om Prakash, along with Bhagirath, went to the house of the JCL in the evening of the same day to complain to his father about the first incident. As alleged, the appellant was also present at the time at the house of the JCL. A scuffle took place and the victims got injured. From the testimony of PW-1, it is apparent that the appellant hurled a blow at him only when he intervened.
26. According to the allegations levelled, the appellant had hurled two blows at the time of the second incident - one at Bhagirath, which landed on his cheek, and the other at Om Prakash, which resulted in injury on his stomach. In the MLCs of the victims, the nature of the injuries sustained was opined to be 'simple'. As per the testimony of the Investigating Officer, both the victims were discharged from the concerned hospital on the same/next day. The victims have alleged that the injuries were inflicted on them by the appellant using a knife. A perusal of the testimony of PW-
SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 21 of 489/Investigating Officer would show that Bhagirath informed him that the injuries were caused by 'some sharp object'. Admittedly, no weapon has been recovered during the investigation. In this regard, it is noted that after obtaining the MLCs from the hospital, no subsequent expert opinion was sought by the investigating agency on the nature of the weapon used to commit the alleged offence. Xxxxxxxxxxxxxxxxxx
33. At this stage, it is deemed apposite to cite the decision in Anwarul Haq v. State of U.P. reported as (2005) 10 SCC 581 where, while maintaining the conviction of the accused under Section 324 IPC despite non-recovery of the alleged weapon of offence, the Supreme Court had held as follows:-
"11. We find that the trial court has analysed in great detail the evidence of eyewitnesses, including that of PW 1, the injured and therefore there is no scope for interference. The plea that the weapon used was not a dangerous weapon had never been urged before the trial court or the High Court. Whether weapon is a dangerous weapon or not has to be gauged only on the factual basis...
12. ...The expression "an instrument, which used as a weapon of offence, is likely to cause death" should be construed with reference to the nature of the instrument and not the manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this section. Xxx
15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW 3) also throw considerable light in this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 IPC."
(emphasis added) In light of the above decision, non-recovery of the alleged weapon of offence in the present case is held to be of no consequence, as both injured victims have consistently deposed that they were inflicted injuries with a knife.
34. Considering the foregoing, the nature of injuries suffered by Om Prakash and Bhagirath, which as per their MLCs were 0.5 cm deep, as well as the fact that even as per the prosecution case, only a single knife blow was given to each victim, of which the second was given to Bhagirath only when he intervened, this Court is of SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 22 of 48 the opinion that the injuries caused to the victims were the outcome of a sudden fight and the act of the appellant, though voluntary, was not caused with such intention or knowledge and/or under such circumstances that if death was caused of the victim(s), the appellant would have been guilty of culpable homicide not amounting to murder. Accordingly, the essential ingredients to establish commission of offence under Sections 308/34 IPC cannot be culled out from the facts of the present case.
35. However, at the same time, it is noted that the factum of injuries having been inflicted on the victims with a knife, i.e., a 'dangerous weapon' in terms of Section 324 IPC, has been consistently deposed by Bhagirath as well as Om Prakash, who are both injured eye-witnesses and whose testimonies have been found reliable. Besides the testimonies of the victims, the allegations in the present case are corroborated by the MLCs of the victims which were prepared on the day of the incident and which have been duly proved during trial by Dr. S.K. Kakran (PW-3).
36. In view of the aforesaid, the present appeal is allowed. The appellant is held not guilty of offence punishable under Sections 308/34 IPC and his conviction is altered to one under Section 324 IPC.
19. PW-6 SI Ved Prakash has deposed that around 5:35 PM a call was received from control room on 12.06.2017 then he alongwith crime team officials who are Ct. Sudesh the crime team photographer and ASI Inderjeet the Finger Print Proficient went to the spot at Khasra no. 29/23, Gali no. 10, Jharoda Majra, Burari, Delhi. They met ASI Nanhe Lal at the spot with other police official. He had prepared crime team report Ex.PW6/A. The Crime Team Photographer Ct. Sudesh has his camera not working and on instruction of PW-6 ASI Nanhe Lal has taken photographs of the place of occurrence from his mobile phone. However ASI Nanhe Lal was not made witness in the present case nor he has been examined. The mobile phone from which photographs were taken was not produced on record nor any certificate under Section 65B of Indian Evidence Act was furnished and it is argued on behalf of accused that the SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 23 of 48 said photographs cannot be relied upon. Ld. Counsel for accused has referred to deposition of PW-7 that on 11.06.2017 at about 10:05 PM the wireless operator had given information regarding a quarrel at gali no. 9, Jharoda Majra, Part II near Valmiki temple in respect of which DD no. 30 PP in roznamcha was recorded and the content was informed to ASI Nanhe Lal Mishra. The DD is ExPW7/A. Hence it is submitted that ASI Nanhe Lal has already visited the spot on 11.06.2017 and no complaint was lodged at that time. It is further submitted on behalf of accused that PW-6 had made crime team examination at gali no. 10 which is not the spot of incident and the spot of incident was gali no. 9. The said mentioning of gali no. 10 to prosecution witness when not put in reference to record then the same is not seen as contradiction under Section 145 of Indian Evidence Act, 1872.
20. The disclosure of accused no. 2 Ravi is Ex.PW10/D and the disclosure of accused no. 1 Gaurav is Ex.PW10/E. PW-10 W/Ct. Sangeeta was part of group of five officers who had gone in a private vehicle to apprehend accused no. 1 to 5 and was present during disclosure statement of accused which Ex.PW10/D to Ex.PW10/H in which ASI Nanhe Lal is also witness alongwith SI Rambir Singh. Accused Gaurav has led to house no. 1034, gali No. 9, Jharoda Part II and got recovered one cricket bat from his house which was seized vide memo Ex.PW1/G and the cricket bat is Ex.P1. The accused Ravi led to his house in the same area near the house of accused Gaurav and got recovered one Danda from inside his house which was seized vide memo Ex.PW1/H and the Danda is Ex.P-2. However PW-10 and PW-11 has deposed that the Danda Ex.P2 was recovered at the instance of SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 24 of 48 accused Lalit whereas accused Lalit is not in the present case but he is complainant/PW-1. Hence the testimony of PW-10 and PW-11 in respect of recovery of Danda from accused no. 2 Ravi is doubtful. Another fact to be noted is that PW-10 cannot tell the details of house of accused Ravi from where the Danda was recovered. PW-10 has deposed in cross- examination at page 3 that she cannot tell details of house of accused Ravi as she had not gone there. Whereas in examination-in-chief she has deposed that accused Ravi led them to his house from where Danda was recovered. PW-1 Lalit Sharma witness to the recovery is the complainant is interested witness and another witness ASI Nanhe Lal to the recovery memo of Danda Ex.PW1/H is not examined by the prosecution. Hence recovery of Danda from accused no. 2 Ravi is doubtful. However SI Rambir Singh/PW-14 has proved that the Danda was recovered from the house of accused Ravi and bat was recovered from the house of accused Gaurav. PW-11 has deposed that at the time of recovery the lady accused person were in their custody and he did not visit the house of accused Ravi and therefore she cannot pin point it.
21. It is submitted by ld. Counsel for accused that injuries were sustained by accused no. 3 Ms. Renu vide MLC Ex.PW4/A and the said injuries are unexplained. The accused no. 3 was examined on 11.06.2017 at about 11:45 PM. The MLC has recorded tenderness and swelling of right forearm. Swelling over left side of forehead approximately 5cm x 4 cm. Abrasion over right upper lip approximately 1cm x ½cm. It is recorded that the physical assault was made by four unknown person around 11 PM. The accused was found fit for statement at the time of examination. It is noted that the nature of injuries on accused no. 3 are SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 25 of 48 scant compared to the PW-1, PW-8 and PW-9 more so when the accused person are seen as aggressor.
22. The MLC of PW-8 Parshuram is Ex.PW5/A in which it is disclosed that physical assault was made by 4-5 persons. The MLC of PW-1 Lalit Sharma is Ex.PW5/B who has disclosed that the assault was made by 6-7 person. Both the witness have reported that the accused person were previously known to them. The MLC of PW-9 Mohar Singh is Ex.PW13/A where the nature of injuries are reported as grievous. PW- 13 is Sh. Anil Kumar, Record Clerk from Sushruta Trauma Centre has proved handwriting of Dr. Deepika who prepared MLC Ex.PW13/A as he had seen her writing and signing during official work. It is further deposed that Dr. Gautam Dutta, Senior Resident (Neurosurgery) had given opinion that nature of injury as grievous from point Y to Y1. The original medical file is brought by PW-13 which is Ex.PW13/B. He has no further knowledge regarding the contents of MLC and medical report. Hence PW-13 has proved that PW-9 was examined by the respected doctors on such date and time. It is argued on behalf of accused that MLC Ex.PW13/A is silent about the number of accused. It is submitted that in the MLC it is recorded that PW-9 was brought to the hospital by his son Jeet Singh. Whereas PW-8 in his cross-examination dated 24.09.2024 at page 3 has deposed that the son of Mohar Singh has taken him to hospital and the to the contrary PW-8 at first page of his cross- examination dated 24.09.2024 has deposed that PW-8 had taken the injured Mohar Singh and Lalit to hospital. It is submitted that the accused person have given variable statements which is an improvement and cannot be relied.
SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 26 of 4822.1 It is noted that prosecution has not proved the nature of injury as grievous on PW-9 in deposition of PW-13 who is only Record Clerk. It is reported in MLC Ex.PW13/A lacerated wound 3x1cm on frontal area of scalp in the central area. Section 326 IPC deals with offence of voluntarily causing hurt by dangerous weapon or means and Section 325 IPC deals with punishment for voluntarily causing grievous hurt. Grievous hurt is defined under Section 320 IPC. No fracture is recorded in the MLC or dislocation of bone or tooth. No permanent disfiguration of the head or face is reported either in deposition of PW-13 or in the MLC. The PW-9 Mohar Singh was admitted in hospital on 11.06.2017 and he was found fit for statement on 14.06.2017. It is deposed by PW-9 that he remained admitted in hospital for 12-13 days and he was unconsicous. The above deposition of PW-9 is totally contrary to his MLC Ex.PW13/A where he was found fit for statement within 03 days of the injury sustained. Hence it is held that prosecution has failed to prove the necessary ingredients of grievous hurt as claimed in MLC of PW-9 keeping in view citation Mathai vs. State of Kerala MANU/SC/0035/2005 is reproduced hereasunder:
Neutral Citation: 2005 INSC 30 Supreme Court of India Criminal Appeal No. 89 of 2005 (Arising out of SLP (Crl.) No. 2285/2004) Mathai vs. State of Kerala (12.01.2005 - SC) :
MANU/SC/0035/2005
10. Section 325 deals with punishment for voluntarily causing grievous hurt.
11. Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.
12. Section 326 provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any corrosive substance, or by means of any SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 27 of 48 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 for life or with imprisonment of either description for a term which may extend to ten years, and also with a liability to pay a fine.
13. Sections 325 and 326, like the two Sections immediately preceding, provide the ordinary punishment and punishment under certain aggravating circumstances of the offences mentioned thereunder. The two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of 'hurt'.
14. "Grievous hurt" has been defined in Section 320 IPC, which read as follows:
"320 Grievous Hurt - The following kinds of hurt only are designated as "grievous"-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any members or joint.
Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
15. Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly.
16. The expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 28 of 48 generalization can be made.
17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are :
(1) voluntarily causing a hurt;
(2) hurt cadepending upon various factors like size, sharpness used must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means.
As was noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha MANU/SC/0529/2000 : 2000CriLJ4663 there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.
18. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No hard and fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone.
23. To prove the charged offence it has to be seen first whether offence under Section 34 IPC is made out or not. The necessary citations SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 29 of 48 are reproduced hereasunder:
Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) :
MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007
6. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
7. As it originally stood, Section 34 was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
8. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor MANU/PR/0013/1945.
9. The Section does not say "the common intention of all", nor SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 30 of 48 does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
10. The above position was highlighted recently in Anil Sharma and Ors. v. State of Jharkhand MANU/SC/0433/2004 :
2004CriLJ2527 ; in Harbans Kaur v. State of Haryana MANU/SC/0170/2005 : 2005CriLJ2199 and Amit Singh Bhikamsingh Thakur v. State of Maharashtra MANU/SC/7004/2007 : 2007CriLJ1168 .
Another citation titled Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka 1 (2022) 7 SCC 521 relevant para of which is reproduced herein as under:
"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 31 of 48 the weapon used, conduct or acts of the coassailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
24. The injuries on PW-9 are seen by the Court and Court observation is recorded in deposition dated 04.12.2019 that witness is having injury mark over his forehead. It is deposed by PW-9 that when he had intervened and asked the accused no. 1 to 5 that why they are fighting on which accused Gaurav had hit PW-9 with cricket bat on the head of PW-
9. Thereafter his sons namely Jeet Singh and Surat Singh had shifted him to hospital. Hence hurt is proved by PW-9 that he was hit on head and the examination of PW-9 in due course on 11.06.2017 at the hospital is proved by PW-13 which is a relevant fact. The nature of injuries have not been proved by prosecution however hurt was caused to PW-9 over head are sufficiently proved by prosecution on record. Hence the ingredient of hurt as laid down under Section 324 IPC is proved by the prosecution on record. Whether it was by dangerous weapon or means has to be seen in reference to nature of injury and the facts and circumstances of the case. The nature of injuries are not proved by the prosecution on record as no medical expert/doctor was called to depose on MLC of PW-9 whether PW-9 got hit by that severity and effect to be called having been hit by SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 32 of 48 dangerous weapon or means. The Danda or cricket bat could be dangerous when it was used with such a power that it could be classified in the nature of dangerous weapon or means. The Danda could be hit with great power and also by very less power and which has to be seen according to nature of injury. The injury is not proved by prosecution on record. The law in respect of Section 308 IPC is also discussed by Hon'ble High Court of Delhi in case titled The State of NCT of Delhi Vs. Varun Dass & Anr. The relevant para 7 to 16 of which are reproduced hereasunder:
Hon'ble High Court of Delhi in case titled The State ( Nct Of Delhi) vs Varun Dass & Anr on 20 September, 2022 CRL. REV. P. 368/2018
7. This Court deems it appropriate to reproduce Section 308 IPC, which reads as under:
"308. Attempt to commit culpable homicide.--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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
8. It is clear from the reading of the Section itself that to constitute an offence under Section 308 IPC, the following conditions should be fulfilled:
(a) that a person does an act;
(b) that the act is done with an intention or knowledge to commit culpable homicide not amounting to murder;
(c) that the person concerned commits the offence under such SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 33 of 48 circumstances that in case the act so done by that person causes death, he would be guilty of culpable homicide not amounting to murder
(d) in case hurt is caused while committing this offence, the person concerned shall be awarded enhanced punishment.
9. Therefore, Section 308 IPC does not make it mandatory that for an offence to be covered under Section 308 IPC, hurt should have been caused by that person. Causing hurt is, therefore, not an essential condition to attract the provisions of Section 308 IPC.
10. The second part of Section 308 IPC further explains that in case hurt is caused to any person by an act falling within the purview of section 308 IPC, the accused shall be punished with imprisonment of either description for a term which may extend to 7 years or with fine or with both.
11. There is no confusion regarding the settled position of law and the definition of Section 308 IPC itself that causing hurt by the act committed under Section 308 IPC and no hurt being caused are both covered under Section 308 IPC itself, attracting different punishments. What is crucial to note while deciding a case at the stage of charge under Section 308 IPC is that the act should have been caused with such intention or knowledge and under such circumstances that in case said act caused death, he would be guilty of culpable homicide not amounting to murder.
12. It was observed in Narinder Kaur Oberoi v. State 2015 SCC Online Del. 7864. The observations read as under:
"6. Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 308 IPC. It depends upon the facts and circumstances of each case whether the accused had the requisite intention or knowledge......."
13. It was observed by Hon‟ble Supreme Court in Roop Chand @ Lala vs. State (NCT) of Delhi (Criminal Appeal No. 2204 of 2010) as under:
"11. The distinction between attempt to commit culpable homicide not amounting to murder, and voluntarily causing hurt with a sharp-edged weapon, is subtle and nuanced. Under the former (Section 308), injuries must be such as are likely to cause death, but in the latter (Section 324) the injuries may or may not endanger SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 34 of 48 one's life....."
14. In the present case, the very cryptic order of learned ASJ rests on four lines on the basis of which the opinion seems to have been formed to discharge the accused persons under Section 308/34 IPC. No reasons have been given in the order as to why learned ASJ has reached the conclusion that Section 308 IPC is not made out in the present case except for the fact that simple injuries had been suffered by the complainant on his head apart from some abrasions on his abdomen and back. The learned ASJ failed to take note of the fact that the nature of injury alone sustained by the victim at the time of commission of offence cannot be the sole criteria to discharge a person from the offence under Section 308 IPC. The most relevant criteria for framing charge under Section 308 IPC is that the commission of any act by an accused with intention or knowledge that under such circumstances death could have been caused. What was relevant at the stage of framing of charge in this case was that the victim had suffered injuries caused by an iron rod on his head which is vital part of the body and the injuries so caused with the iron rod twice could have caused his death, making them guilty of culpable homicide not amounting to murder.
15. Even causing of hurt is not relevant for this purpose. A similar view was taken by the Hon‟ble Supreme Court in the case of Sunil Kumar vs. NCT of Delhi, 1998 8 SCC 557, the relevant portion reads as under:
"4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC............"
16. In the present case, the accused had hit the victim twice on head with iron rod. A person hitting a victim on his head with iron rod twice cannot be presumed not to have knowledge or intention that such hitting on the head of the victim with an iron rod could result into death of a person. The nature of injury being simple was thus not relevant at the stage of consideration of charge. In this case an iron rod was used to cause injuries on the vital part of body of victim, the severity of blows and conduct of accused and their behavior, motive etc will be clear only during trial and they could not have been discharged.
SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 35 of 4825. Hence what is important is the manner in which the weapon were used on which intention and knowledge has to be gathered. It is settled law under Section 308 IPC that it is not necessary that actual injury should have been caused. The PW-9 has deposed that accused no. 1 Gaurav had hit him on the head with cricket bat only once though PW-9 had no role in the quarrel between them and he was intervening only to stop fight between the parties. The MLC is proved as Ex.PW13/A in the handwriting of Dr. Deepika. PW-9 has deposed that he had remained in hospital for 12-13 days. PW-9 was found fit for statement on 14.06.2017. Vide Ex.PW13/B(colly) PW-9 was admitted in the hospital on 12.06.2017 at 00:10 AM and his discharge summary is dated 23.06.2017 at page 171 of case file. Hence from 12.06.2017 till 23.06.2017 the PW-9 has remained admitted in hospital for a period about 12 days. The said fact is not controverted in the deposition of PW-9. Hence it is proved by the prosecution that PW-9 was got hit by bat. The bat was hit by accused no. 1 Gaurav on PW-9 on 11.06.2017 and due to such hit the PW-9 had remained admitted in hospital for long duration. For about 12 days PW-9 had remained unfit for statement which shows the intensity with which the bat was hit upon PW-9. The MLC has reported lacerated wound of 3x1cm over frontal area scalp in the central area. However the nature of injury is not proved by prosecution in deposition of PW-13 who has only identified the handwriting and signing of Dr. Deepika. Hence the prosecution has proved on record that hurt was caused upon PW-9 by accused no. 1 Gaurav. Since the intention has to be gathered from the nature of injury. It is proved on record by evidence discussed in para above. Therefore what remains is to be seen is that whether accused has SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 36 of 48 knowledge under such circumstance that in case the said act caused death he would be guilty of culpable homicide not amounting to murder. It is case of the prosecution that PW-9 has no role or issue with the accused or with the complainant and he had intervened only to pacify the matter. Therefore when he was intervening then he got a hit by accused no. 1 Gaurav by a bat on his head. It was matter of sudden quarrel and it is the case of the prosecution that accused no. 3 to 5 had initially went to PW-8 regarding having a talk of marriage of Ms. Supriya with accused no. 2 Ravi. Ms. Supriya has deposed as DW-1 who has deposed that accused Ravi and Gaurav Sharma were not present at that time nor they assaulted the PW-1, PW-8 and PW-9. It is deposed that accused no. 3 Renu has not sustained injury in the quarrel. The burden of proof of alibi is on the accused. The said plea is taken by accused no. 2 in his statement under Section 313 Cr. PC that he was not present at the spot nor the accused Gaurav was present at the spot. The plea of alibi is a rule of evidence under Section 11 of Indian Evidence Act, 1872 and this plea has to be taken subsequent to the prosecution having discharged its burden satisfactorily. The said law is laid down in case titled Kamal Prasad and Ors. Vs. The State of Madhya Pradesh. The relevant para of which is reproduced hereasunder:
Criminal Appeal No. 1578 of 2012 Kamal Prasad and Ors. vs. The State of Madhya Pradesh (Now State of Chhattisgarh) (10.10.2023
- SC) : MANU/SC/1116/2023
18. Another defence taken by the convict-Appellants is that of the plea of alibi. This Court in Binay Kumar Singh v. State of Bihar MANU/SC/0088/1997 : (1997) 1 SCC 283 has noted the principle as:
23. The Latin word alibi means "elsewhere" and that word is used SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 37 of 48 for convenience when an Accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime.
19. The principles regarding the plea of alibi, as can be appreciated from the various decisions2 of this Court, are: 19.1 It is not part of the General Exceptions under the Indian Penal Code and is instead a Rule of evidence Under Section 11 of the Indian Evidence Act, 1872.
19.2 This plea being taken does not lessen the burden of the prosecution to prove that the Accused was present at the scene of the crime and had participated therein.
19.3 Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden. 19.4 The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence.
19.5 It is required to be proved with certainty so as to completely exclude the possibility of the presence of the Accused at the spot of the crime. In other words, a standard of 'strict scrutiny' is required when such a plea is taken.
26. DW-1 is interested witness as accused no. 2 Ravi is her husband.
She is not eye witness at that time as she was present at the house and watching TV with other family members. It is deposed by DW-1 that in previous dispute PW-1 Lalit his brother-in-law and his family members gave threat to DW-1 to falsely name accused Ravi and Gaurav in her statement and so she had given their name to the police in earlier dispute. It is also noted that PW-1 and PW-8 had not disclosed about earlier dispute between them and accused in their complaint given to the police and it shows that they have hidden this fact and their testimonies have to be read with caution. DW-2 has also deposed that accused Ravi and Gaurav were not present and PW-1, PW-8 and PW-9 are habitual drunkard who used charas, ganja and they are person of quarrelsome SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 38 of 48 nature. DW-2 has deposed that PW-9 suffered injury due to fall on the road. He was present at the spot. In cross-examination it is deposed by DW-2 that he had not made any complaint of use of charas, ganja by prosecution witness alleged above. He also did not come forward to the police during investigation that how the scuffle had broke out. However DW-2 produced copy of complaint marked as Mark DW2/A, Mark DW2/B and Mark DW2/C against the family of PW-8 made by Sh. N.K. Rai President of Sarvjan Ekta Vikas Samiti. It is admitted as correct that Mark DW2/A and Mark DW2/B are not against PW-8 and his family. It is admitted as correct that there is no FIR against PW-8 and his family members. DW-3 has deposed he has not seen the incident when PW-9 had sustained the injury. It is deposed that accused no. 1 and 2 were not present at the spot. It is also admitted as correct that he had not seen the entire incident and accused no. 1 Gaurav is his friend and accused no. 2 Ravi is his neighbour. Hence the accused has failed to rebut the onus of proof of the proved facts that PW-9 had sustained injuries under the hands of accused persons.
27. PW-5 had medically examined PW-1 and PW-8 and the nature of injuries are given as simple. PW-1 had suffered burn injury on the left foot of 8x6cm in size and multiple small burn over right leg front side. Open lacerated wound over mid parietal region at scalp 3x0.5cm into skin deep was there. The injuries in Ex.PW5/A and Ex.PW5/B are simple as per opinion given by Dr. Arvind, SR surgery. In cross-examination it is deposed that injuries were fresh. PW-4 Sh. Nawal Kishore Joshi from FSL vide his report Ex.PW4/A did not find sulphuric acid, nitric acid and SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 39 of 48 hydrochloric acid in Ex.Q3. However burn injuries are proved in evidence of PW-3 which are substantiated by PW-1. PW-1 has deposed that accused Gaurav has struck bat on the back side of head of PW-1 and accused Ravi has struck Danda blow over his head. The MLC Ex.PW3/B records open lacerated wound over region of 5 cm obliquely placed measuring 3cmx ½ cm into skin deep. Hence it is proved by prosecution that this injury was sustained by PW-1 during scuffle between the parties in which accused no. 1 to 5 have participated.
28. Now it has to been seen that whether accused Ravi and accused Gaurav were present at the spot or not. As per complaint Ex.PW1/A accused no. 3 to 5 came together initially and accused Gaurav and accused Ravi had came later on at the spot. Hence presence of accused no. 3 to 5 at the spot is proved by the prosecution keeping in view the facts discussed above. In answer to question no. 3 accused no. 1 Gaurav has stated under Section 313 Cr. PC as incorrect that at the time of incident he was not present at the spot. Hence presence of accused no. 1 Gaurav is admitted on record. However accused no. 2 in answer to question no. 4 under Section 313 Cr. PC has stated that he was not present at the time of incident. It is alleged against accused no. 2 that he has used Danda. PW-9 has deposed that he was hit once by cricket bat then he fell unconscious which means accused no. 2 Ravi did not hit PW-
9. PW-8 has deposed that accused no. 1 and 2 starting hitting his son Lalit/PW-1 and neighbour/PW-9 who were sitting with him due to which injuries were received by them. Whereas PW-9 does not depose that he was got a hit from accused no. 2 Ravi. Hence the deposition of PW-8 as SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 40 of 48 to hitting by accused no. 2 Ravi is contradictory to the deposition of PW- 9 nor does PW-8 has deposed that what injury was caused by accused no. 2 Ravi on him. PW-1 has deposed that accused no. 2 Ravi caused multiple Danda blows over his father PW-8 whereas PW-8 does not depose that he was got hit by Danda from accused no. 2 Ravi. It is deposed by PW-1 that accused no. 2 Ravi had hit upon his forehead with Danda. The MLC of PW-1 is Ex.PW5/B and the injury over the parietal region of scalp 3x0.5cm into skin deep are proved and the nature of injury are proved as simple. Injury deposed are fresh and nothing inconsistent in respect of causing of such injuries has been brought by accused on record in the defence. Hence causing of such injury by accused Ravi are proved by prosecution on record beyond reasonable doubt. The plea of alibi is taken by the accused and therefore burden of proof of this plea lies on the accused. The plea of alibi is rule of evidence and the burden to establish the plea is on accused Ravi who has taken this plea. The same is to be proved by leading cogent and satisfactory evidence and strict scrutiny is required when such plea is taken. The accused person has bought DW-1 to prove that accused no. 2 Ravi was not present at the spot. DW-1 had heard the sound that what the accused and the victim were talking with each other therefore she was present, as per her own deposition, near the spot. DW-2 has claimed that he had seen the incident therefore he was also present at the spot. DW-3 was also near the spot watching TV in her house. Hence all the defence witness have deposed that they were present at the spot and no evidence is brought on record that accused Ravi was not present at the spot and that he was present somewhere else. DW-1 to DW-3 were not in a position to state SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 41 of 48 that where the accused Ravi was present if he was not present at the spot. No other evidence is available on record or produced by accused Ravi to establish the plea of alibi. Hence it is held that the accused no. 2 Ravi has failed to prove the plea of alibi and he was present at the spot when the offence had occurred.
29. Now it has to be seen that whether the accused person had intention or knowledge to inflict such injury which would cause the victim's death within the meaning of culpable homicide not amounting to murder. Only one injury was sustained by PW-9 that too only when he tried to intervene in the fight. PW-1 and PW-8 have received simple injuries only and they were fit for statement when they were produced in hospital. Other than this PW-8 has stated that there were 4-5 accused in the MLC Ex.PW5/A. It cannot be said that he could not notice the number of accused when all the accused are known prior to him. Similarly PW-1 has stated in MLC Ex.PW5/B that there were 6-7 accused. Again it is seen that PW-1 has tried to implicate many persons as accused in the case and the reason is not far to seek. The previous enmity between the accused person on the one hand and PW-1 and PW-8 is admitted on record including of filing of criminal cases. This enmity is admitted by PW-1 in cross-examination dated 22.04.2024. PW-8 in cross- examination dated 24.09.2024 has admitted as correct that one FIR was lodged three years back at PS Burari in the year 2012 against all the accused person in this case. Prior to this incident his son Naresh was beaten up by all the accused person. It is admitted as correct that their relationship with accused person are strained since the year 2012.
SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 42 of 48Further, it is noted that PW-1 has deposed that call to the police was made from the mobile of neighbour. PW-8 has also deposed that his son has called the police at 100 number after 10 minutes. However no such call to the police by PW-1 is proved on record. Whereas the accused person have claimed that the phone number recorded in DD No. 30 PP Ex.PW7/A belongs to the accused person. Hence the accused person had called the police and not the PW-1 or PW-8 as alleged. Further, the incident is dated 11.06.2017 at 9:30 PM whereas FIR in the matter was lodged on 12.06.2017 at 10:45 AM. Though both PW-1 and PW-8 were fit for statement when they were produced in the hospital and they had ample time to manipulate the facts keeping in view the previous enmity with the accused. Hence there is delay in registration of FIR in this matter by PW-1 and PW-8 and this delay remains unexplained. The case of the prosecution is that the police did not cooperate with the victim. However it is noted that ASI Nanhe Lal was present at the spot immediately thereafter receipt of Ex.PW7/A and even ASI Nanhe Lal is not examined by prosecution on record. Further, the photograph were allegedly taken by ASI Nanhe Lal which are depicting stones on which blood was lying and the said photograph were taken from mobile phone from ASI Nanhe Lal. However the said photographs are not part of evidence and remains unproved in absence of deposition of ASI Nanhe Lal. In such view of the matter injuries on PW-9 are not proved by prosecution on record by relevant medical evidence and injuries on PW-1 and PW-8 are proved simple in nature.
30. The FSL report Ex.PW3/A proves that blood was detected in SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 43 of 48 Ex.Q1 which was concrete material having dark brown stains described as Earth control with blood. Ex.Q2 is concrete material having dark brown stains described as Earth control with blood. Ex.PW3/B the report from Biology division of FSL proves that the blood was of human origin. Hence the blood had fallen at the spot after the fight which was collected from the spot by mobile crime team and proved in the deposition of PW- 3 Dr. Kaushal Kumar, Retired from CFSL. The said witness is not cross- examined. Hence the blood had fallen at the spot. The injuries were not proved on record that they were so inflicted upon PW-1 and PW-8 and hence such injuries from which blood had spilled at the spot pertains to PW-9 only. PW-9 was hit on his head with the cricket bat. Hence PW-9 was hit so hard with cricket bat that blood had fallen at the spot at many points and therefore he proves that PW-9 was hit hard by the cricket bat by accused no. 1 Gaurav. Now it is to be seen whether the cricket bat can be classified as dangerous weapon under Section 324 IPC.
31. The seizure memo of cricket bat is Ex.PW1/G which is 30 inch in length. The handle is of 11 inch. Hence the cricket bat is 19 inch long and it is 4 inch broad. It is common knowledge that cricket bat could be used for playing with a ball made of leather inside which is a hard substance. The bat faces such speed of the ball and with such speed even serious injury could be caused to the bones. However the cricket bat last for long time. In such view of the matter hitting with such a cricket bat can certainly cause serious injury and when it is used in a fight that too on a head then it comes under the category of dangerous weapon and therefore comes under the definition of Section 324 IPC. No such injury SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 44 of 48 has occurred on PW-1 from the hit by Danda and in the circumstances of the case the way the Danda was used in the present case cannot be classified as dangerous weapon when the nature of injuries suffered by PW-1 are found simple in nature. The seizure memo of Danda is Ex.PW1/H having length of 87.5 inch. Whereas the breath of Danda is not proved on record and in absence of which it cannot be said that it is a dangerous weapon.
32. It is the case of prosecution that accused no. 1 and 2 had came at the spot after the altercation had started between PW-1 and PW-8 on the one hand and accused no. 3 to 5 on the other hand. The provocation if any which was given by PW-8 was to accused no. 3 and 5 and not to accused no. 1 and 2 and therefore the hit which was caused by accused no. 1 on PW-9 was without provocation to him. This shows that at the spur of the moment intention was formed between accused no. 1 to 5 under Section 34 IPC. There should be community of purpose and common design or prearranged plan. In the present case when accused no. 1 and 2 had entered into picture later on then still it can be said it was a prearranged plan. Even without prior discussion or agreement or valuation there could be community of purpose and common design which can be formed in a minute or seconds. Direct evidence is normally is not available in most cases which has to be inferred from the facts proved. As soon as the altercation had started between PW-1 and PW-8 on the one hand and accused no. 3 to 5 on the other accused no. 1 and 2 had joined in the altercation without any call and not only they had inflicted injuries but also they ran away together which shows that they SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 45 of 48 had community of purpose and design between them and hence Section 34 IPC stands attracted against all the accused on the principle of common intention which fasten joint liability on other co-participants and the above law was laid down in the case titled as Chaman and Ors. Vs. State of Uttaranchal. The relevant para of which are reproduced hereasunder:
Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) :
MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007
6. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
7. As it originally stood, Section 34 was in the following terms:
When a criminal act is done by several persons, each of such SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 46 of 48 persons is liable for that act in the same manner as if the act was done by him alone.
8. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor MANU/PR/0013/1945.
9. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
10. The above position was highlighted recently in Anil Sharma and Ors. v. State of Jharkhand MANU/SC/0433/2004 :
2004CriLJ2527 ; in Harbans Kaur v. State of Haryana MANU/SC/0170/2005 : 2005CriLJ2199 and Amit Singh Bhikamsingh Thakur v. State of Maharashtra MANU/SC/7004/2007 : 2007CriLJ1168 .
33. Now it is seen that fight between PW-8 and PW-9 on the one hand and accused no. 1 to 5 on the other hand had started suddenly. In fact the accused no. 3 to 5 came at the spot for discussion regarding marriage of Ms. Supriya with accused no. 2 Ravi. Hence it cannot be said that they come prepared for a fight except for the sudden provocation given by PW-8 by asking to accused no. 3 to 5 why they do not marry their daughter with the accused no. 2 Ravi. Whether this was sufficient SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 47 of 48 provocation or not is a matter of fact. However this provocation does not absolve the accused person. The above provocation does not come under any of the exceptions and nor such exception is argued on behalf of accused. The quarrel was outcome of sudden fight and the accused no. 1 and 2 came running with Danda and Bat later on and in the circumstances of the case it cannot be said that the injuries caused in such fight was with intention or knowledge or under such circumstance that if death was caused to the victim, the appellant could have been guilty. Hence it is held that the necessary ingredients of Section 308/34 IPC cannot be made out from the facts and circumstance of the case. All the accused no. 1 to 5 namely Gaurav Sharma, Ravi Sisodia, Renu Sharma, Sangeeta and Sandhya Sharma are convicted under Section 324/34 IPC and the accused person are discharged under Section 326/34 IPC and also discharged under Section 308/34 IPC.
Put up for arguments on the point of sentence on 24.02.2025.
Announced in the open Court Digitally signed by on 07.02.2025. JOGINDER JOGINDER PRAKASH PRAKASH NAHAR Date: 2025.02.07 15:57:04 NAHAR +0530 (JOGINDER PRAKASH NAHAR) ADDITIONAL SESSIONS JUDGE (FTC-01) CENTRAL/TIS HAZARI COURT DELHI SC No. 708/2018 FIR No. 274/2017 State Vs. Gaurav Sharma & Ors. Page 48 of 48