Delhi District Court
Section 308 Of The Indian Penal Code ... vs Unknown on 26 February, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC-277/17
CNR No.DLNE01-009258-2016
FIR: 1479/14
Police Station: Bhajanpura
Under Sections: 308 IPC
STATE
V
SUSHIL KUMAR SHARMA
S/O SATYA NARAYAN SHARMA
R/O D-79/A GALI NO.6, GAMRI EXT.
BHAJANPURA, DELHI
Date of Institution : 07.10.2017
Date of Argument : 18.02.2020
Date of Judgment : 26.02.2020
JUDGMENT
1. Section 308 of the Indian Penal Code (hereinafter referred to as "IPC") deals with culpable homicide not amounting to murder. It reads as under:-
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.
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 1/22 To bring home the guilt of the accused for the offence punishable under section 308 IPC, the prosecution is required to prove:-
i. the death of the complainant was attempted ii. that the act was done with intention or knowledge and under the circumstances that if it had caused death, the act would have amounted to culpable homicide not amounting to murder.
2. Aditya (hereinafter referred to as "the complainant") is residing at H. No.86, Gali no.6, Block D, Gamri Extension, Delhi with parents. Sushil Kumar Sharma (hereinafter referred to as "the accused") is residing near to house of the complainant. The complainant on 29.10.2014 at about 12:00 PM was playing with his friends in the gali (street) situated outside house. The ball struck against the air conditioner fitted in the house of the accused and the accused came in the gali (street) and abused the complainant. The accused snatched bat from the hands of the complainant and hit him on head with bat. The complainant started to bleed. The police was informed. The father of the complainant removed him to JPC Hospital. The complainant after treatment along with father came back to home.
HC Dinesh Kumar along with Ct. Pawan after receipt of DD no.29A on 29.10.2014 regarding quarrel reached at the spot i.e. H. No.86, Gali no.6, Gamri Extension, Delhi, where he came to know that the complainant aged 13 years has already been removed to JPC Hospital by his father. HC Dinesh Kumar along with Ct. Pawan reached at JPC hospital and collected the MLC of the complainant. The complainant was already referred to GTB hospital. HC Dinesh Kumar thereafter reached at GTB hospital where he came to know that the complainant had already left GTB Hospital after treatment. HC Dinesh along with Ct. Pawan reached at house of the complainant, where he came to know that the complainant along with his family member had gone to Police Station. HC Dinesh reached at police station and met the complainant and his father and recorded their respective statements. Rukka was prepared. FIR was got registered. Thereafter investigation was handed over to ASI Raj Kumar who arrested the accused. The accused after completion of investigation was charged for offence under section 308 IPC and the charge sheet was filed before the concerned court of the Metropolitan Magistrate.
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 2/22 The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). The concerned Metropolitan Magistrate vide committal order dated 26.09.2017 committed the case to the Court of Sessions and assigned to this Court for trial in accordance with law.
3. The charge for the offence punishable under section 308 IPC was framed against the accused vide order dated 10.11.2017. The accused pleaded not guilty and claimed trial.
4. The prosecution examine Aditya as PW1, Devender Singh as PW2, Ct. Mahender Singh as PW3, ASI Jagram as PW4, Ct. Pawan as PW-5, SI Raj Kumar as PW-6, HC Dinesh Kumar as PW-7 and Dr. Meghali Kelkar as PW8. PW1 is the complainant. PW2 Devender Singh is the father of the complainant. PW3 Ct. Mahender Singh participated in the investigation with initial Investigating Officer SI Raj Kumar. PW4 ASI Jagram being Duty Officer registered FIR bearing no.1479/14. PW5 Ct. Pawan participated in the investigation with Investigating Officer HC Dinesh Kumar. PW6 SI Raj Kumar conducted the initial investigation. PW7 HC Dinesh Kumar being the Investigating Officer conducted the investigation.
The prosecution proved copy of DD no.29A as Ex.PW4/C, statement of the complainant as Ex. PW1/A, rukka as Ex. PW7/A, computerized copy of FIR bearing no.1479/14 as Ex. PW4/A, endorsement regarding kayami DD no.53A as Ex.PW4/B, certificate under Section 65B of the Indian Evidence Act as Ex.PW4/D, copy of DD no.53A as Ex.PW4/E, site plan Ex.PW6/A, arrest memo of the accused as Ex. PW3/A and MLC of the complainant as Ex.PW8/A. The prosecution evidence was ordered to be closed vide order dated 26.09.2018
5. The statement of the accused was recorded under section 313 Cr.P.C. vide order dated 31.10.2018. The accused denied the incriminating evidence against him and pleaded falsely implication by the family members of the complainant. The accused stated that he did not cause injury to the complainant.
The accused led defence evidence. The accused examined SI Narender Singh as DW1, ASI Bijender Singh as DW2, Ravinder Kumar Sharma as DW3 FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 3/22 and ASI Rajpal Singh as DW4. DW1 SI Narender Singh produced the RTI record regarding leave of ASI Raj Kumar as Ex. DW1/A. DW2 ASI Bijender Singh produced photocopy of DD entry no.41B regarding the leave of ASI Raj Kumar as Ex.DW2/A. DW3 Ravinder Kumar Sharma produced recognition letter of Ghanshyam Sharma Memorial High School, Dujana as Ex.DW3/A, original documents relating to the donation by Steria India Foundation as Ex.DW3/B, eight photographs regarding the welcome ceremony of the delegations as Ex.DW3/C. DW4 produced electronic print of PCR call dated 29.10.2014 having CPCR DD no.29 October 141470175 as Ex.DW4/A and certificate under section 65-B of the Indian Evidence Act as Ex.DW4/B. The defence evidence was ordered to be closed vide order dated 19.02.2019.
6. Sh.Masood Ahmed, the Additional PP for the State and Sh. R. P. Bhardwaj, Advocate for the accused heard.
7. The role of a witness is paramount in the Criminal Justice System of any coun- try. A witness has relevant information about a crime. A Witness is an important constituent of the administration of justice. The witness by giving evidence linking to the charge of the offence performs a sacred duty of assisting the court to dis- cover the truth. A witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. A witness by giving evidence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensation of justice. The Supreme Court in Mahender Chawla V Union Of India, Writ Petition (Criminal) No. 156 / 2016 decided on 5 December, 2018 it was observed as under:-
Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The in- strument of evidence is the medium through which facts, ei- ther disputed or required to be proved, are effectively con- veyed to the courts. This evidence in the form of documen- tary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with convic-
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 4/22 tion of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the cre- dence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system.
8. The prosecution to prove its case examined the complainant as PW1 who supported the case of the prosecution. The complainant PW1 deposed that on 29.10.2014 at about 12 noon was playing cricket in the street in front of the house with friends and during play the cricket ball hit air conditioner fitted in the house of the accused. The accused came and abused the complainant. The friends of the complainant ran away. The accused after snatching the bat from the complainant hit on the head of the complainant as a result of which blood started to ooze from the head of the complainant. The father of the complainant i.e. PW2 came at spot and removed the complainant to JPC Hospital and thereafter to GTB Hospital and after treatment the complainant came back to home. The statement Ex.PW1/A of the complainant was recorded. The complainant PW1 during the cross- examination deposed that in the past there was some tiff with the accused and once accused had slapped him as he spit in the drain while brushing his teeth. The families of the complainant and the accused are not talking with each other. The complainant PW1 could not tell names of other friends who were playing cricket with him but they were from the nearby area but denied the suggestion that he cannot tell the names of the boys as he was not playing cricket there. The police have taken bat stated to be used to hit the complainant from him. The blood which was oozed out from the head after injury also fallen on the clothes of the complainant but the IO did not seize clothes of the complainant. The complainant denied the suggestions that he was not playing the cricket or that the ball did not hit against the air conditioner of the accused or the accused did not hit on his head by using the bat or that the accused did not cause any injury to him or that he received the injury somewhere else or that he deposed falsely at the instance of his father and maternal grandmother (nani). The prosecution also examined the father of the complainant Devender Singh as PW2. PW2 Devender Singh deposed that at FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 5/22 the time of the incident he was at Sadar Market and at about 12 noon or 12:30 PM he received the call that the accused has hit the complainant on the head by using a bat. PW2 removed the complainant to JPC hospital and thereafter to G.T.B hospital. PW2 in cross-examination deposed that the complainant had informed about the incident in the hospital to him that the accused hit on the head of the complainant. PW2 also admitted that there was discord with the accused as the accused on earlier occasion hit the complainant but the said dispute was settled between the parties. PW2 and the accused were not on talking term with each other. PW2 denied the suggestion that the complainant received injuries somewhere else or that PW2 deposed falsely due to animosity with the accused or that the accused did not cause any injury to the complainant. The prosecution to prove injuries received by the complainant examined Dr. Meghali Kelkar as PW8 who deposed that the complainant was brought to JPC hospital on 29.10.2014 at about 12:30PM by his father i.e. PW2 and on general physical examination, the complainant was found conscious, oriented and normal without any sign of head injury or the systemic complaints. PW8 Dr. Meghali Kelkar found that the complainant was having injury i.e. CLW 2 x 0.5 on left parietal region of scalp which was muscles deep. The nature of the injury was opined as "simple".
9. The combined and analytical reading of the respective testimonies of witnesses examined by the prosecution proved the following facts:-
i. The families of the complainant and the accused are residing in the same locality without having good relations with each other.
ii. The complainant on 29.12.2014 at about 12 noon was playing cricket in the gali (street) situated in front of his house along with friends. The cricket ball hit against the air conditioner fitted in the house of the accused. The accused came and hit the bat on the head of the complainant as a result of which the blood started to ooze out from his head. iii. PW2 i.e. the father of the complainant PW1 came at the spot and removed the complainant to JPC hospital and thereafter to G.T.B hospital. The complainant on medical examination was found to be normal, conscious and oriented and injury was simple in nature. The police recorded the statement of the complainant.
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 6/22
10. The complainant at time of incident and deposition was a minor. The defence counsel argued that the testimony of the complainant is not reliable being a child witness. The Additional Public Prosecutor argued that the complainant as PW1 was a competent witness. The witness is a prime source of evidence in judicial proceedings. Section 118 of the Indian Evidence Act, 1872 deals with competency of a witness. It reads as under:-
Who may testify. --All persons shall be competent to testify unless the Court considers that they are prevented from un- derstanding the questions put to them, or from giving ratio- nal answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
A child witness is the one who at the time of giving evidence is below age of eighteen years. The law in India recognized a child as a competent witness. Every witness is competent to depose unless the court considers that he is pre- vented from understanding the question put to him, or from giving rational an- swers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. In Mangoo & another V State of Madhya Pradesh, AIR 1995 SC 959 the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. In Panchhi & others V State of U.P., AIR 1998 SC 2726 the Supreme Court observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evi- dence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. In State of U.P. V Krishna Master & others, AIR 2010 SC 3071, the Supreme Court held as under:-
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 7/22 There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellish- ments, and the same inspire confidence of the Court, his de- position does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to impli- cate the accused falsely in a case of a serious nature.
Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from un- tutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.
In State of M.P V Ramesh and another, Criminal Appeal No. 1289 of 2005 decided on 18 March, 2011 the Supreme Court observed as under:-
The law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspec- tion because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
11. The complainant at the time of deposition as PW1 was aged about 15 years and was studying in 11th class. The complainant at the time of incident was studying in 9th class. The complainant as such was fairly mature at the time of incident and when he deposed as PW1. There is no evidence that the complainant FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 8/22 was tutored although the families of the complainant and the accused were not having healthy and friendly relations but it does not necessarily reflect that the complainant was tutored as witness. The complainant as PW1 deposed intelligently in entire deposition. There is no evidence that the complainant was having ill will and malice towards the accused. The testimony of the complainant is also corroborated by the testimony of PW2 and medical evidence. The testimony of the complainant as PW1 can be safely relied on. There is no force in argument advanced by the counsel for the accused that the testimony of the accused cannot be relied on being a child witness does not inspire confidence.
12. The evidence led by the prosecution reflects that weapon of offence i.e. bat was not recovered during investigation. The defence counsel argued that weapon of offence was not recovered and seized by the investigating officer which is fatal to case of the prosecution. The Additional Public Prosecutor deposed that non-
recovery of weapon of offence is not always fatal to case of the prosecution. The complainant deposed that the accused hit on his head by using a bat. The complainant in cross examination deposed that he was carrying a proper bat at time of incident and there were no wickets. The police had taken that bat. The cross examination of PW1 reflects that he gave bat to the police. PW7 HC Dinesh Kumar who conducted initial investigation and PW6 ASI Raj Kumar who conducted subsequent investigation did not depose about recovery and seizure of bat during investigation. PW6 ASI Rajkumar deposed that he made efforts to trace weapon of offence i.e. bat but same could not be found. However if the weapon of offence i.e. bat is neither recovered nor seized is not fatal to case of prosecution. The complainant deposed that he was hit by the accused by a bat which reflects that the accused used bat as weapon of offence. The Supreme Court in Lakshmi V State of U.P., (2002) 7 SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and broad proposition of law that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed. The Supreme Court in State of Rajasthan V Arjun Singh, (2011) 9 SCC 115 held that mere non- recovery of pistol or cartridge does not detract the case of the prosecution where FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 9/22 clinching and direct evidence is acceptable. The Supreme Court in Mritunjoy Biswas V Pranab alias Kuti Biswas and another, (2013) 12 SCC 796, observed that where unimpeachable ocular testimony, supported by medical evidence is available, non-recovery of the weapon of assault is of no advantage to the accused. The Delhi High Court in Chuni Lal V State of Delhi, Crl.A.262/2003 decided on 8 August, 2013 observed that mere non- recovery of weapon of offence is not a factor from which the appellants can get any benefit. In Mohinder V State, 2010 VII AD (Delhi) 645 it was held that non-recovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the murder of deceased.
13. No public person or any of the boys playing cricket with the complainant was included in investigation. The defence counsel argued that as per testimony of the complainant as PW1 he was playing cricket with his friends but investigating officers PW7 HC Dinesh Kumar and PW6 ASI Rajkumar did not include any friend of the complainant in investigation. The testimony of the complainant as PW1 and his father PW2 cannot be relied on as the families of the complainant and the accused were not having good relations due to past incidents. The complainant as PW1 deposed that on 29.10.2014 around 12.00 noon he was playing cricket in the street in front of house with friends at the time of incident. The complainant in cross examination deposed that in the past there was tiff between the accused and the family of the complainant when accused slapped him as he spit in the drain while brushing teeth. The complainant does not remember name of 3/4 boys who were playing with him but they were from nearby area. The complainant did not try to note down their names. IO did not ask from him about names and addresses of those boys. The complainant denied suggestion that he cannot tell their names as he was not playing cricket.
14. The evidence of an injured witness has to be accorded great weightage and a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 10/22 deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In Shivalingappa Kallayanappa V State of Karnataka, 1994 Supp (3) SCC 235 it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of MP V Mansingh, (2003) 10 SCC 414, the Supreme Court observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. In Abdul Sayeed V State of MP, (2010) 10 SCC 259, the Supreme Court held that the question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. The Supreme Court took similar view in Jarnail Singh V State of Punjab, (2009) 9 SCC 719 that the special evidentiary status is accorded to the testimony of an injured accused. In State of Uttar Pradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the statement of an injured witness was expressed in the following words:-
The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 11/22 witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
In Vijay & another V State, Crl. A. No. 83/2000 decided on
15.09.2015, the High Court of Delhi observed as under:-
It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else.
15. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses.
The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
16. The prosecution case is primarily based on the testimony of the complainant PW1. No any other boy who was playing cricket with the complainant was FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 12/22 attempted to join and included in investigation. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
17. The testimony of the complainant as PW1 is trustworthy and in not suffering from any infirmity. The testimony of the complainant PW1 can be relied upon. If the investigating Officer could not or did not include any public person in investigation it is not fatal to case of the prosecution. The complainant received injury and his testimony cannot be rejected merely on ground that the families of the complainant and the accused were not enjoying good relation due to past incidents.
18. The defence counsel argued that the concerned investigating officer was on leave on 29.10.2014 when he allegedly conducted part investigation and as such FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 13/22 entire investigation is vitiated. The defence counsel referred cross examination and deposition of witnesses examined by the accused in defence. It is apparent from evidence led by the prosecution that PW7 HC Dinesh Kumar conducted investigation till registration of FIR and thereafter investigation handed over to PW6 ASI Rajkumar who prepared site plan Ex.PW6/A of the spot and arrested the accused. The Cr.P.C. does not contain any provision to deal with irregularities committed by investigation officer (IO) in the course of investigation. The error, illegality or defect in investigation does not have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. (Union of India V Prakash P. Hinduja, AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the investigating officer cannot render the case of the prosecution doubtful. (Sambu Das V State of Assam, AIR 2010 SC 3300). The accused cannot be acquitted on the sole ground of defective investigation.
19. PW6 ASI Rajkumar deposed that on 29.10.2014 investigation of case was assigned to him and Duty officer PW4 ASI Jagraan gave him the statement of Ex.PW1/A of the complainant and copy of FIR Ex.PW4/A and he prepared site plan Ex.PW6/A of the spot at the instance of the complainant. PW6 ASI Rajkumar made efforts to trace weapon of offence i.e. bat but same could not be found. PW6 ASI Rajkumar in cross examination deposed that he was on leave from 29.10.2014 to 01.11.2014 and departed to house vide DD No. 41B dated 29.10.2014 at 12.05 p.m. DW1 SI Narender Singh produced RTI record Ex. DW1/A pertaining to leave of PW6 ASI Rajkumar. DW2 ASI Bijender Singh proved DD No. 41B Ex. DW2/A regarding leave of PW6 ASI Rajkumar. The cross examination of PW6 ASI Rajkumar proved that the complainant and his father PW2 met him at police station at about 10.30 p.m and from there they reached at the spot within 15-20 minutes and he departed to his house vide DD No. 41B dated 29.10.2014 at 12.05 p.m. It proved that PW6 ASI Rajkumar proceeded on leave on 29.10.2014 after conducting part investigation on 29.10.214.There is no force in argument advanced by the defence counsel that investigation was vitiated as on 29.10.2014 Investigating Officer PW6 ASI Rajkumar was on leave and as he could not have FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 14/22 conducted part investigation on 29.10.2014.
19. The defence counsel argued that the accused at the time of alleged incident was not present at spot and was attending a function in a school situated at Dujana and referred testimony of DW3. DW3 Ravinder Kumar Sharma deposed that he is owner of Ghanshyam Sharma Memorial High School, Dujana which is adopted by Sterlia India Foundation, a German Company. On 29.10.2014 a delegation from said company visited the school for inspection. DW3 invited the complainant and his father were invited in the school. The accused and his father reached at school at 9.00 am to attend function and remained there till 4 pm. DW3 relied on photographs Ex.DW3/C. DW3 in cross examination deposed that the accused is his nephew. The accused was not under employment of DW3. The accused was not invited in function but he came along with his father. DW3 denied suggestion that the accused did not come to attend function. DW3 did not give anything writing to police regarding presence of the accused in school on 29.10.2014 and handed over photographs Ex.DW3/C to the police. DW3 admitted that in two photographs none of officials from Steria India Foundation is shown.
20. Latin word 'alibi' means 'elsewhere'. It is used when an accused takes recourse to a defence that he was so far away from the place of occurrence at the time of incident making extremely improbable his participation in the crime. The burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime in a criminal case in which the accused is alleged to have inflicted physical injury to another person. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. If the presence of the accused at the scene of occurrence is established satisfactorily through reliable evidence then the court would be slow to believe in plea of alibi. If the accused adduced qualitative evidence entertaining reasonable doubt regarding his presence at the scene at the time of occurrence, the accused would be entitled to the benefit of reasonable doubt. The burden on the accused is rather heavy and strict proof is required for establishing the plea of alibi. The Tripura High Court in Suman Nama V State of FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 15/22 Tripura, Crl. A. (J) No. 33 of 2015 decided on 03-05-2019 observed that the prosecution had failed to prove appellant's presence at the scene of the crime and the appellant was set at liberty on the benefit of doubt. In Lakhan Singh @ Pappu V The State of NCT of Delhi, Crl Appeal No. 166/1999 it was observed by Delhi High Court that the appeal of alibi cannot be balanced with a plea of self- defence and ought to be taken at the first occurrence and not belatedly at the stage of defence evidence. The Delhi High Court in Kewal Singh V State, criminal Appeal Nos. 307/1999, 318/1999 and 330/1999 decided on 1st March, 2007 accepted plea of alibi when the prosecution could not prove presence of the accused at spot beyond reasonable doubt.
21. In present case the prosecution proved beyond reasonable doubt the presence of the accused at the spot on day of incident and his participation in offence. The accused was identified by the complainant who inflicted injury on his head. The accused in pros- ecution evidence took the defence that he did not inflict injury to the complainant and he was not present at the spot at time of in- cident but the accused did not put defence in prosecution evi- dence that he on 29.10.2014 was present in Ghanshyam Sharma Memorial High School, Dujana to attend a function organized by DW3. The testimony of DW3 is not sufficient to prove presence of the accused at Ghanshyam Sharma Memorial High School, Dujana on 29.10.2014. The plea of accused regarding his presence some- where else at the time and on day of incident is concocted, false and without any substance.
22. It is reflected from the evidence that after incident on 29.10.2014 the complainant PW1was taken to JPC Hospital where he was medically examined by PW-8 Dr. Meghali Kelkar vide MLC Ex.PW8/A. The complainant on general physical examination was found conscious, oriented with normal GCS (Glasgow Coma Scale). There was no danger sign of head injury or other systemic complaints. The injury was found to be simple. The complainant had the following injury caused by blunt weapon / force:
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 16/22 i. Contused lacerated wound 2x0.5 c.m. on left parietal region of scalp which was muscle deep.
23. In Bishan Singh & another V State, AIR 2008 SC 131 the surviving accused were tried and convicted for commission of offences under sections 147 and 308/149 IPC. As per the complainant, the accused persons allegedly assaulted him with lathis and took out a sum of Rs.400/- from his pocket. The injuries suffered by the complainant as per the injury report are as under:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint = cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were simple. The injured deposed that his head was wounded and his shirt was full of blood. The Trial Judge relying on or on the basis of the testimony of the witness convicted the appellants for commission of an offence under Sections 147 and 308/149 IPC. It was observed that The Trial Judge did not notice the ingredients of Section 308 IPC which provides for existence of an intention or knowledge. The High Court also dismissed the appeal FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 17/22 and opined that it is established that the intention of the accused persons was to commit culpable homicide. They had enmity with the injured. Threats were also given to him by the accused to ruin his life. Injuries were also caused on scalp. The Supreme Court was observed as under:-
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 lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
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.
24. In Ramesh V State, 2010 (I) JCC 796 the Delhi High Court altered the conviction from 308/34 to 323/34 by holding that assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide. In Sunder V State, 2010 (1) JCC 700 Delhi High Court altered the conviction of the appellant from Section 308 to 323 IPC by holding that in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder. In Raju @ Rajpal and others V State of Delhi, 2014 (3) JCC 1894 the Delhi High Court altered the conviction from Section 308 to 323/34 by holding that the nature of injuries were simple and injuries were not caused with the avowed object or knowledge to cause death. In Ashok Kumar and another V State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015 the High Court altered the conviction of Section 308 IPC to Section 323/34 IPC and FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 18/22 held that injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant. In Pawan Chaddha V State, Crl.A. 640/2011 decided on 27 January, 2016 by the Delhi High Court the appellant was convicted for offence under Section 308 and Section 323/34 IPC while co-accused were held guilty and convicted under Section 323/34 IPC. As per the MLC following injuries were observed on person of the complainant:-
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
One of issues arises for consideration is as to whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:-
In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant were opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death.
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 19/22 ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
25. In the present case it is proved that families of the complainant and the accused were residing in same locality but they were not enjoying good relations with each other due to past incidents. The complainant was residing with his grandmother.
There was a quarrel between family of the complainant and the accused on trivial issue. The accused caused simple injury to the complainant by inflicting bat blow. The complainant was discharged from hospital on same day and was conscious when he was brought to hospital. There is no evidence to prove that attack on the complainant by the accused was premeditated. There is no evidence that the ac- cused was having requisite intention or knowledge to cause culpable homicide. Mere fact that injury were inflicted on head, which is vital part of the body, does not necessary mean that the accused was having necessary knowledge and intention to kill the complainant.
26. In the adversarial system every person accused of an offence is always pre- sumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maha- rashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurispruden- tial enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devo- tion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bi-
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 20/22 har, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suf- fering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 21/22
27. The prosecution from quality and quantity of evidence could prove offence punishable under section 323 IPC against the accused by establishing that the accused on 29.10.2014 voluntarily inflicted grievous injury by using a bat. Accordingly the accused is convicted for offence under section 323 IPC.
Digitally signed byANNOUNCED IN THE OPEN SUDHIR SUDHIR KUMAR
JAIN
FEBRUARY, 2020KUMAR
Location:
COURT ON 26th Karkardooma courts,
Delhi
JAIN Date: 2020.02.27
10:22:03 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE, NORTH -EAST
KARKARDOOMA COURTS, DELHI
FIR 1479/14 STATE V SUSHIL KUMAR SHARMA SC 277/13 22/22