Delhi District Court
State vs . Rahul Naithani & Another on 5 January, 2022
-: 1 :-
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH - EAST DISTT., SAKET COURTS, NEW DELHI
SC No. 228/2019
FIR No. 458/2018
PS Badarpur
State vs. Rahul Naithani & Another
State
Versus
1. Rahul Naithani
S/o Sh. Radhe Krishan Naithani
R/o: House No. C-672, Gali No. 04,
Om Enclave Part-I, Agwanpur,
Faridabad, Haryana
2. Ajeet Kumar
S/o Sh. Ashok Prasad Karan
R/o: House No. C-161/3,
Om Enclave Part-III, Post Tilpat,
Agwanpur, Faridabad, Haryana
(Discharged vide order dated
03.07.2019)
First date before this Court: 31.05.2019
Judgment pronounced: 14.01.2022
JUDGMENT
1. Charge sheet under Sections 307/201/212 IPC was filed against the accused Rahul Naithani and Ajeet Kumar.
2. The case of the Prosecution is that on 26.11.2018 one PCR call was received in regard to stabbing incident. HC Santosh along with Ct. Shyam Sunder went to Sunday Market, near Subway Badarpur where they came to know SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 1 of 37 -: 2 :- that the injured has already been taken to some unknown hospital for treatment. In the meanwhile, another call was received vide DD No. 15-A regarding injured been admitted in Apollo Hospital, Sarita Vihar, New Delhi. HC Santosh reached at the Apollo Hospital and found the injured under treatment. Statement of the injured was recorded by HC Santosh, wherein she stated that on 26.11.2018 she got married to the accused Rahul Naithani on 27.05.2017 in Arya Samaj Mandir, Faridabad, Haryana, but they did not live together as they had got married without informing their parents. Accused Rahul Naithani used to abuse the complainant and threatened to kill her in case she did not give consent to reside with him and they used to have constant fight and arguments in this regard. They finally agreed for divorce. The complainant therefore, applied for divorce in the Saket Courts, New Delhi. On the day of incident i.e. 26.11.2018 she went to Saket Courts, New Delhi for signing the documents. On her way when she reached at Jaitpur Mod near Subway Badarpur, accused Rahul Naithani was already present there and he forcibly tried to compel her to accompany him to a hotel. When she declined, accused Rahul Naithani claimed that he would kill her in case she would not accept him and would ensure that she is not able to live with anybody else and threatened to kill her. He took out a knife and attacked her and injuries were caused on her stomach and arm.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 2 of 37 -: 3 :-
3. FIR was registered under Sections 307/201/212 IPC on her complaint and the investigation was taken over by SI Ved Prakash. Supplementary Statement of the victim was recorded. Efforts were made to trace the accused and raids were conducted at different places. Accused Rahul Naithani surrendered himself before the Court on 07.12.2018 and was interrogated with the permission of the Court. He was arrested and his disclosure statement was recorded. One day Police Custody Remand of the accused was taken and he led the police party to the place of incident and pointed out the place where he threw the knife, which was recovered at his pointing out. The sketch of the knife was prepared and the knife was sealed in a pullanda and seized vide seizure memo. The clothes of the accused i.e. T-Shirt, Jeans worn by the accused were taken into possession and his medical examination was got done.
4. On the disclosure statement of the accused Rahul Naithani, accused Ajeet Kumar was interrogated who admitted that the accused Rahul Naithani had come to stay in his house after the incident and informed him about the incident and sought shelter and he stayed in his house for 2-3 days. When the accused Ajeet Kumar suspected that accused Rahul Naithani would be arrested by the police, he dropped the accused at the bus stop from where he went away to some other unknown place. Accused Ajeet Kumar was arrested under Section 212 IPC.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 3 of 37 -: 4 :-
5. Statement of the witnesses were recorded, opinion about nature of injury was obtained on the MLC from the doctor, who opined that the injuries suffered were grievous . On completion of investigation, charge-sheet under Sections 307/201/212 IPC was filed in the court on 05.03.2019.
6. After due compliance of Section 207 Cr. P. C., the case was committed to the Court of Sessions vide order dated 27.05.2019.
7. Charge under Section 307 IPC was framed against the accused Rahul Naithani while the co-accused Ajeet Singh was discharged vide order dated 03.07.2019.
8. Prosecution in support of its case examined 13 witnesses in all.
9. PW-1 is the victim/complainant, who has deposed about the incident as narrated in her complaint Ex. PW-1/A. The knife is Ex. P-1, the clothes worn by her are collectively Ex. P-2 and the clothes worn by the accused Rahul Naithani at the time of the incident are collectively Ex. P-3.
10.PW-2 Mohd. Saleem was the RtV driver present near the scene of crime. He has deposed that on 26.11.2018 at about 10.00/10.30 am he was present with his RTV at Jaitpur Mod, Sunday Market, near Subway Badarpur awaiting the passengers. He noticed a crowd near the subway. On reaching the spot, he found that one lady was injured on her belly, hand and face and blood was oozing SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 4 of 37 -: 5 :- out. He took her to the Apollo Hospital in his RTV with the help of unknown person and got her admitted and his name was mentioned in the MLC.
11.PW-3 HC Santosh Kumar and PW-5 Ct. Shyam Sunder, on receipt of information about the incident vide DD No. 12-A Ex. PW-3/A had gone to the scene of incident at Jaitpur Mod, Sunday Market near Subway Badarpur, but the public persons who were present there told them that the injured has already been removed to the hospital. Thereafter, they both went to the Apollo Hospital where injured/victim was found admitted. PW-3 HC Santosh Kumar recorded the statement of the injured/ victim as Ex. PW-1/A and collected her MLC as Ex. PW-1/DA. He prepared the rukka Ex. PW-3/B and sent PW-5 Ct. Shyam Sunder to the police station for registration of the FIR. PW-5 Ct. Shyam Sunder got the FIR Ex. PW-4/B registered by PW-4 ASI Rajender Singh Duty Officer. He handed over the copy of the FIR and original rukka to PW-8 IO SI Ved Parkash. HC Santosh Kumar delivered the sealed parcel containing the clothes of the injured and the sample seal to the IO which were seized vide Memo Ex. PW-3/C.
12.PW-6 Dr. Zara Ahmed, Emergency Medical Officer, Apollo Hospital, New Delhi had examined the victim and found 04 injuries on her person, which have been mentioned in the MLC vide Ex. PW-6/A on which she made her endorsement vide Ex. PW-6/B. The nature of SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 5 of 37 -: 6 :- injuries have been opined by her on the MLC as Ex. PW- 6/C.
13.PW-13 Sh. Sushil Nagal was the Security Officer in the Security Control Room in Indraprastha Apollo Hospital, who had sealed the packet, which was seized by the IO vide memo Ex. PW-8/C.
14.PW-9 Dr. Naresh Kumar, Senior Scientific Officer (Biology), FSL Rohini, Delhi has proved the FSL Report, Allelic Data and DNA Profiling as Ex. PW-9/A, Ex. PW- 9/B and Ex. PW-9/C respectively.
15.PW-11 Dr. Haritosh Gupta, Medical Officer he examined the patient/victim on 09.05.2019 and took her blood sample. He found no fresh external injuries upon her and her condition was stable. There were old cut marks present near her left side of nose, at left forearm and at abdomen. He deposed that the patient/victim denied her internal examination. He prepared the MLC vide Ex. PW-8/D.
16.PW-12 Dr. Deepak Vats, Senior CMO, Apollo Hospital, New Delhi has deposed that on the request letter of IO SI Ved Parkash he gave the opinion on the weapon of offence i.e. knife and the injuries as Ex. PW-8/B.
17.PW-10 SI Jagjiwan Ram had collected the sealed envelope containing the DNA Profiling Report and delivered the same to MHC(M) HC Amar Singh. He was directed to prepare supplementary charge-sheet by SHO Inspector Vijay Pal Dahiya and he filed the same in the Court.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 6 of 37 -: 7 :-
18.PW-8 SI Ved Parkask I.O. took over the investigation after registration of the FIR. He along with PW-3 HC Santosh Kumar and PW-5 Ct. Shyam Sunder searched for the accused and met Mohd. Saleem, who claimed to be an eye witness of the incident and had taken the injured to the hospital in his TSR. I.O. has further deposed that he went to Apollo Hospital and met the injured and enquired about the incident. He tried to trace the accused but was unable to do so. The accused Rahul Naithani surrendered in the court and was interrogated and formally arrested. On his disclosure statement, co-accused Ajeet Singh, in whose house accused Rahul Naithani had taken shelter was also arrested. He recorded the statement of the witnesses and conducted the investigation. On completion of investigation, he filed the supplementary charge-sheet before the Court.
19. Detailed testimony of the witnesses shall be considered subsequently.
20.Statement of accused Rahul Naithani was recorded under Section 313 Cr. P. C. wherein he denied having caused any injury to the victim and claimed that injuries were self-inflicted in order to pressurize him for divorce and claimed that he has been falsely implicated in this case.
21.Accused Rahul Naithani has appeared as DW-1 in his defence and pleaded his innocence.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 7 of 37 -: 8 :-
22.Ld. Chief Public Prosecutor for the State has argued that the victim and the accused had got married in Arya Samaj Mandir without disclosing about their marriage to anybody. There were temperamental issues between the victim and the accused and eventually they agreed for divorce by mutual consent. The accused was called by the victim to sign the divorce petition in Saket Courts. The parties met near metro station where he insisted that the victim should accompany him and when she refused, stabbed her four times on the vital parts on the body of the victim. The knife was recovered from near the scene of crime near the spot. The very fact that the accused was armed with a knife clearly shows his intention was to kill the victim. The consistent testimony of the victim which is fully supported by the medical record proves beyond reasonable doubt that the injuries had been inflicted by the accused upon the victim with intent to cause her death. It is argued that the case of the Prosecution has been fully established and accused is liable to be convicted.
23.Ld. Counsel for the accused has argued that the accused and the complainant had got married without informing their respective family and were living separately. The accused had been insisting on residing together but the complainant was always evasive. She had obsessive nature and frequently sent messages and her pictures of inflicting injury on her person in order to pressurize the accused. On the date of incident the complainant had requested the SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 8 of 37 -: 9 :- accused to come to the Court and submit the divorce papers for which the accused was not much inclined. She met him near metro station where she self inflicted knife injuries on her face, abdomen and arm. This is corroborated by the testimony of the doctor who has deposed in his cross-examination that the injuries on the person of the victim could have been self-inflicted. The photographs of the victim showing the injuries on her person have been produced for the first time by the victim only in the cross-examination of accused and same never formed a part of the record of the Prosecution. It has been further argued that these photographs have been procured subsequently only to falsely implicate the accused in the present case. The photographs have neither been proven nor do they support the case of the Prosecution. Further, the name of the assaulter in the MLC has been recorded as "unknown". If in fact the injuries were inflicted by the accused, there was no reason for her not to disclose his name. The recovery of the knife is also highly suspicious as it has been affected after 07 days of the incident from near Subway Jaitpur Mod near Sunday Market. It is difficult to comprehend that the knife would lie in an open public land recovered by the police after 07 days. It clearly shows that the recovery of knife has been planted upon the accused. The cuts on the T-Shirt of the victim also do not correspond to the alleged injuries inflicted by the accused. Further, the blood sample of the victim has been collected SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 9 of 37 -: 10 :- only in 2019. The entire case of the Prosecution has been fabricated only to falsely implicate the accused in the present case. There is no cogent evidence against the accused and he is entitled to be acquitted.
24.I have heard the arguments and perused the entire record and the evidence led therein. My observations are as under:
25.The accused Rahul Naithani has been charged for having made murderous attack on the complainant by having inflicted knife injuries on various parts of her body. The main witness to prove the case of the Prosecution is PW-1 injured/complainant herself. She has deposed that on 27.05.2017 she got married to the accused in Arya Samaj Mandir, Burari, Delhi according to Hindu Rites & Customs, but they got married on their own and they did not reside together for a day. She and accused went to reside in their parental home respectively. However, the accused started harassing and pressurize her to disclose about their marriage. She advised him to first become financially independent and then only they could start living as husband and wife. When she refused to live with accused, he started extending threats to kill her. He used to say that he would teach her a lesson as to how to live after the marriage and that he would not allow her to maintain mobile phone and exhorted to blackmail her. She further deposed that accused had prepared video clippings of their sexual activities on his mobile phone and also clicked her SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 10 of 37 -: 11 :- nude photographs from his mobile phone. She also clicked her nude photographs through her mobile phone and forwarded them to the accused. He started pressurizing her that he would show them to her relatives if she did not join him as per his desire. She deposed that she then proposed the accused to take divorce. Initially, the accused was not agreeable, but after sometime he agreed. She got Divorce Petition prepared from the counsel in Saket Courts, New Delhi, though the same was not presented before the Court.
26.The injured has further deposed that on 26.11.2018 the injured/complainant met the accused near Subway, Badarpur at about 10.15 am to go to Saket Courts together. The accused started compelling her to accompany him to a hotel and when she resisted, accused took out a knife from a blue colour polythene and stabbed her twice on her belly, face and left wrist with an intent to kill her. Thereafter, the accused ran away from the spot leaving her in injured condition. Public persons came and someone took her to the hospital in an auto where she was given medical treatment. One police official reached and recorded her statement Ex. PW-1/A.
27.The testimony of the complainant is corroborated by PW-2 Mohd. Saleem, who was the RTV Driver. He has deposed that he was standing with his RTV when he found a crowd at the spot and saw one lady in injured condition. He took her to Apollo Hospital in his RTV and got her admitted.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 11 of 37 -: 12 :-
28.The accused has not challenged the testimony of the complainant/injured in regard to their having got married and having met her near Subway at Badarpur at about 10.15 am. However, the accused has challenged the testimony of the complainant in regard to inflicting injuries on the complainant with intent to kill her. The only defence taken by the accused that the injuries were self-inflicted. The presence of the accused and his meeting with the complainant at the scene of incident is therefore not disputed. The only question which remains to be determined is whether the accused had inflicted multiple injuries on the body of the complainant.
29.In the first instance reference may be made to the MLC of the injured Ex. PW-6/A, which shows the following injuries on the body of the complainant/injured:
1. Linear oblique cut on left side of face from nasal side to left cheek of size 5 cm X 1 cm X 0.5 cm.
2. Lacerated wound on left arm ventral aspect of size 8 cm X 6 cm irregular shape, tendons, muscles exposed.
3. Linear cut of size 3 cm X 1 cm on abdomen near epigastrium.
4. Linear cut on abdomen near umbilicus of size 5 cm X 1 cm all peripheral pulses palpable.
30.The injuries on the body of the complainant were on the left cheek, left arm, on abdomen near epigastrium and near SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 12 of 37 -: 13 :- umbilicus. It may be observed that the lacerated wound on the left arm measuring 8 cm X 6 cm and the tendons of muscles got exposed. It is difficult to comprehend that a person inflicting self-injuries would cause an injury which is of the size and magnitude as reflected therein. The nature of injuries, as described in the MLC Ex. PW-6/A, does not support the case of the accused that the injuries were self-inflicted and clearly corroborate the testimony of the complainant that the injuries were caused by the accused.
31.It was held in Abdul Sayeed Vs. State of M.P. 2010 AIR SCW 5701 , that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
32.Thus, the testimony of the complainant and the injuries suffered by her prove the truthfulness of her testimony.
33.Ld. Counsel for the accused has argued that false implication of the accused is evident from the history recorded on the MLC (Ex. PW-6/A) of the complainant/ injured wherein it is mentioned that knife stabbing has SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 13 of 37 -: 14 :- been caused by some unknown person. If the injuries had been inflicted by the accused, then there was nothing which prevented the complainant from giving the name of the accused. The non disclosure of the name of the accused in the statement made by the complainant in the first instance creates a doubt about the involvement of the accused in the commission of the offence.
34.The accused to prove his defence that he has been falsely implicated in this case, examined himself as DW-1 and deposed that the injuries were self-inflicted by the complainant. In his cross-examination Ld. Chief Public Prosecutor for State confronted him with the photographs Mark A-1 to Mark A-9 showing the injuries on the body of a lady. It was admitted that the photographs Mark A-4, Mark A-7, Mark A-8 and Mark A-9 do not show the face of the injured person and they could pertain to some other person. It is significant to note that these photographs Mark A-1 to Mark A-9 were not produced either by the Prosecution along with the charge-sheet nor by the complainant when she was examined in the Court. The production of the photographs for the first time in the cross-examination of the injured as PW-1 creates a doubt as only the photographs have been produced, genuineness and authenticity of which have not been established by the Prosecution. The photographs relied upon by the Prosecution can be of little assistance to prove the seriousness of the injuries.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 14 of 37 -: 15 :-
35. PW-6 Dr. Zara Ahmed, Emergency Medical Officer in the cross-examination has admitted that the injured was conscious and oriented at the time of giving alleged history of stabbing by unknown person, as mentioned in portion from DA to DB in the MLC Ex. PW-6/A. She also admitted that the injured was fit to make statement at that time. However, it can be overlooked that she was only a treating doctor. She has deposed that the patient had given the history that the stab injuries have been caused by some unknown person. Hence, there are only two inferences either the injuries were self-inflicted or have been caused by the accused. The story of self-infliction does not find support from the evidence on record. The only other person present was the accused and the circumstances of infliction of injuries on the complainant have been explained by the complainant in her testimony and there is no reason to doubt her testimony, especially when it is fully corroborated by the MLC Ex. PW-6/A and the testimony of the PW-6 the treating doctor. It has to be necessarily held that injuries were caused by the accused.
RECOVERY OF KNIFE, THE WEAPON OF
OFFENCE:
36.The other significant factor is the arrest of the accused and recovery of the knife the alleged weapon of offence, at his instance. PW-8 SI Ved Parkash has deposed that he along SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 15 of 37 -: 16 :- with PW-7 Ct. Amit Kumar tried to search for the accused and visited his native placed in Uttarakhand, as well as Meerut but was unable to trace him. On 07.12.2018 accused surrendered before the Court and was formally arrested.
37.In Virendra Kumar Gara Vs. State 2001 II AD (Delhi) it was held that the conduct of the accused absconding from the scene of incident is a strong factor to prove his guilt and the question of recovery of the weapon or otherwise would not affect the prosecution case and accused is liable for conviction.
38.His disclosure statement Ex. PW-7/C was recorded and he was arrested and his personal search conducted vide memo Ex. PW-7/A and Ex. PW-7/B respectively. The accused in his disclosure statement mentioned that he could get recovered the weapon of offence i.e. knife used in the commission of offence, his clothes i.e. jacket, t-shirt and pant, which he was wearing at the time of commission of offence. He led the police party to the scene of crime and got recovered the knife from the bushes at some distance from the underpass Exit gate shown at point-X opposite Metro Pillar No. 383 in the Site Plan of which is Ex. PW- 8/A.
39.The fact which emerges is that the incident had happened on 26.11.2018 on which date according to the Prosecution, the knife had been thrown in bushes near the scene of crime. Accused has been arrested on 07.12.2018 i.e. after SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 16 of 37 -: 17 :- about 15 days of the incident and consequent to his disclosure the weapon of offence i.e. the knife was recovered from near the site where it kept lying for 15 days. PW-8 SI Ved Parkash in his cross-examination has admitted that there is small temple near the place of recovery and no independent person was joined at the time of recovery as none was available.
40.PW-7 Ct. Amit Kumar, who had accompanied PW-8 SI Ved Parkash, has also admitted in his cross-examination that they had taken the accused to the place of recovery at about 05.15 pm. He also admitted that there was a small temple and auto rickshaw stand near the place of recovery, but they did not take the photographs of the place of recovery. He admitted that there were lots of passersby and auto drivers present at the spot. He also admitted that there were no big bushes present at the spot and knife was visible from a distance of 4-5 feet.
41.The testimony of PW-7 Ct. Amit Kumar and PW-8 SI Ved Prakash proves that the recovery of alleged weapon of offence has been made after about 15 days of its being thrown on the road side in the bushes, which admittedly were practically non-existent. The alleged place of recovery of weapon of offence is an open public land near the Metro Station, where admittedly there is heavy crowd of people and there is lot of public movement. Interestingly, the weapon of offence i.e. the knife continued to lie in an open public place with a clear SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 17 of 37 -: 18 :- visibility for about 15 days for the convenience of the police to recover.
42.Similar facts were considered in Shiv Narayan vs State (NCT of Delhi) 93 (2001) DLT 681 Delhi High Court . The knife (weapon of offence) was recovered from an open plot adjacent to the factories. The knife was neither buried nor concealed under the earth or inside the bushes nor was kept hidden. It was found lying in the open on the ground near the wall on an open plot visible to naked eyes and even at night time because of lights. It was observed:
"What is admissible under Section 27 of the Evidence Act is not merely knowledge of the accused regarding the place of concealment of the material object but the fact that the accused himself had concealed it there to the exclusion of the knowledge of others. What is not covered cannot be discovered. The weapon found in open space near the wall not hidden in that circum- stance the statement of the accused cannot be said to distinctly lead to discovery of that weapon."
43.In regard to recovery after many days and non-joining of public witnesses it was observed as under:
"In such circumstance the recovery of knife from an open space visible to naked eyes from open space accessible to all and made after almost 23 days of the occurrence cannot be of any avail to the prosecution. Moreover, at the time of alleged recovery Insp. Kali Ram Malik PW-30 did not associate any independent witness though according to him there were number people collected at the time of recovery of the knife. It is a settled proposition of SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 18 of 37 -: 19 :- law that on the information furnished by the accused to the police officers which led to the recovery of the weapon is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence reliable. Admittedly there is noth- ing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is "open or accessible to others".
44.This Judgment was referred by Delhi High Court in Dinesh Kumar Mathur vs. State, 2017 SCC OnLine Del 9809 .
45.The recovery of knife Ex. P-1 from an open public place after about 15 days, without joining public witness does not inspire much confidence.
PRESENCE OF BLOOD STAINS AND ITS
EXAMINATION BY FSL:
46.Another interested aspect which emerges is that PW-7 Ct. Amit Kumar, who was a witness of recovery of knife, was unable to tell if there was any blood stains present on the knife, which should have been there if actually the knife was the weapon of offence and was used by the accused in commission of offence. While PW-8 SI Ved Parkash has deposed that on recovery of knife he prepared its sketch as Ex. PW-7/D and sealed it in parcel with the seal of "VP" and seized it vide the seizure memo Ex. PW-
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 19 of 37 -: 20 :- 7/E as well as his testimony is absolutely silent of there being any blood stains present on the knife.
47.Another glaring aspect which emerges from the testimony of PW-8 SI Ved Parkash is that the recovered knife in the sealed parcel was sent to Apollo Hospital for subsequent opinion and the same was collected from PW-12 Dr. Deepak Vats, Senior CMO, Apollo Hospital, New Delhi on 04.04.2019.
48.PW-12 Dr. Deepak Vats, Senior CMO, Apollo Hospital had given the subsequent opinion. He has deposed that on 29.03.2019 he had received a letter along with sealed parcel to give opinion if the said weapon of offence i.e knife could have caused the injuries suffered by the complainant. He examined the weapon of offence on 04.04.2019 and also perused the MLC of the injured, prepared by PW-6 Dr. Zara Ahmed, Emergency Medical Officer and gave his opinion that the weapon of offence if it pierced the vital organs and if there was profusely bleeding it could have led to death. His opinion is Ex. PW- 8/B. In the cross-examination, he was unable to say if the knife had any blood stains.
49.According to PW-8 SI Ved Parkash, there were blood stains noticed on the blade of the knife at the time of recovery and, therefore, was directed by the SHO to send the sealed parcel along with the blood sample of the complainant/injured to FSL for examination. Prudence guides that if in fact there were blood stains then the knife SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 20 of 37 -: 21 :- should have been first sent to FSL for examination and then for expert opinion of the Doctor but reverse procedure has been followed and the Doctor's expert Opinion has been obtained first.
50.PW-9 Dr. Naresh Kumar, Senior Scientific Officer (Biology), FSL Rohini, Delhi had examined the weapon of offence and analysed the blood on the knife with the blood sample of the complainant/injured on 06.06.2019. After examining, he submitted that the DNA on the knife was found matching with DNA Profile of blood sample of the complainant/injured and Reports are Ex. PW-9/A and Ex. PW-9/B respectively, which he forwarded to the SHO vide Ex. PW-9/C. The DNA Profile of blood recovered on the knife is Ex. 1.
51.What is most intriguing to note that the knife was lying in an open public land for about 15 days before it was recovered by the police and still blood stains remained intact. Further, as discussed above, the subsequent opinion in regard to weapon of offence was obtained on 06.04.2019 and thereafter the knife has been sent for to FSL on 06.06.2019 for matching the blood. Thus, it does not appeal to logic that when the knife was examined by PW-12 Dr. Deepak Vats but he was unable to notice any blood stains on the knife. The blood stains have remained intact on the knife since 26.11.2018 till June, 2019 when finally it reached the FSL.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 21 of 37 -: 22 :-
52.The reason for this is not difficult to understand and is revealed from the testimony of PW-11 Dr. Haritosh Gupta, Medical Officer, who has deposed that he had taken the blood sample of the complainant/injured on 09.05.2019 vide MLC Ex. PW-8/D. The possibility of blood having been smeared on the knife after obtaining subsequent opinion from PW-12 Dr. Deepak Vats cannot, be ruled out or else it is not comprehendible why none of the witnesses were able to notice presence of blood on the knife. Recovery of knife as well as blood stains of the complainant on the knife to connect it with the injures suffered by the complainant, is highly doubtful.
CONSEQUENCES OF NON RECOVERY OF
WEAPON OF OFFENCE:
53.Having discussed that there is serious doubt about the recovered knife Ex. P-1 being the weapon of offence, the question is whether mere non recovery of weapon of offence would exonerate the accused if there exists other incriminating evidence against him.
54.In Krishna Mochi & Ors. Vs. State of Bihar (2002) 6 SCC 81 Hon'ble Supreme Court held that recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 22 of 37 -: 23 :- whose evidence has been found by me to be unimpeachable.
55.In Lakshmi vs. State (2002) 7 SCC 198 , it was held that it is not an inflexible rule that weapon of assault must be recovered and as a general and broad proposition of law it cannot be held that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed.
56.In State of Rajasthan vs. Arjun Singh and Ors. AIR 2011 SC 3380 Hon'ble Supreme Court held that mere non-recovery of pistol or cartridge does not detract case of prosecution where clinching and direct evidence is available. (Also in Krishna Gope vs. State of Bihar AIR 2003 SC 3114) .
57.In Pradumansinh Kalubha Vs. State of Gujarat - AIR 1992 SC 881 , Hon'ble Supreme Court held that where Medical evidence corroborated testimony of witnesses as to stabbing then non seizure of weapon is not very material where there is a direct evidence.
58.In Mani vs. State of Tamil Nadu AIR 2008 SC 1021 , Hon'ble Supreme Court has held that discovery is a weak kind of evidence and cannot be wholly relied upon in a serious matter.
59.It may thus, be concluded from the above referred judgments that non recovery of the weapons of offence is not fatal to the case of the prosecution, when there is direct, cogent and reliable evidence and trustworthy of the SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 23 of 37 -: 24 :- prosecution witnesses and further more when chain of each connecting events are proved by the witnesses. The accused in such circumstances is liable for punishment.
60.But, merely because the weapon of offence is not explained or its recovery is doubtful, it cannot be a factor to overlook the injuries on the person of the complainant, which is being one and all to see. It is thus, held that the injuries were inflicted on the person of the complainant by the accused.
NATURE OF INJURIES:
61.The other aspect which comes for determination is the nature of injuries suffered by the Complainant. PW-6 Dr. Zara Ahmed has deposed that on 22.02.2019 she examined the MLC as well as the medical record available in the hospital and opined about the nature of injuries vide endorsement at point A-3 in MLC (Ex. PW-6/A) as grievous (original of which was filed in the supplementary charge-sheet and is Ex. PW-1/DA). The question which arises is whether the injury inflicted and as per the MLC Ex. PW-6/A would amount to " grievous", as certified by PW-6 Dr. Zara Ahmed.
62.Now what needs to be ascertained are the injuries caused to the complainant and their nature.
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63.Section 320 IPC defines grievous hurt and reads as under:
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 member 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 severe bodily pain, or unable to follow his ordinary pursuits.
Clause Eighthly of Section 320 IPC envisages that 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, is a grievous hurt.
64.From the medical record as discussed above it is quite evident that the injuries suffered by the injured do not fall in clauses from First to Seven but may get covered under clause Eight. Indian penal code has nowhere defined the injuries which endanger human life. The term "endangers SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 25 of 37 -: 26 :- life" is more serious than the expression "dangerous to life". This term is designedly used to exclude cases of hurt, which, however dangerous to life, do not put life in a given case, in danger. The question is one of degree of gravity and must be ascertained in each case to what extent the hurt bears proximate relation to the risk of life.
65.There is an exceptionally meager line of distinction between 'hurt which endangers life' and 'injury as is probably going to cause death'. In Mohammad Rafi vs. Emperor , the accused caused damage on the neck of the perished from behind, the Lahore High Court held the accused at risk for under Section 322 IPC (intentionally causing grievous hurt) for causing demise by grievous hurt as against guilty of culpable homicide not adding up to the murder. The articulation 'endangers life' is a lot more grounded than the articulation 'risky or dangerous to life'.
66.Modi in his Book on Medical Jurisprudence Rai Bahadur Jaising P. Modi, A Textbook of Medical Jurisprudence and Toxicology (Butterworth- Heinemann, 6 th Edn. 2013 states "danger to life should be imminent before the injuries are designated 'dangerous to life', such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a 'large artery' or rupture of some internal organ, such as the spleen, should be considered dangerous to life". But the injuries which prove SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 26 of 37 -: 27 :- fatal remotely by inter current diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous. Dangerous injuries are those injuries which require surgical intervention. If no surgical aid is available it is sufficient to cause death in the ordinary course of nature. Whether it is sufficient to cause death in the ordinary course of nature is a matter to be inferred from the proved facts about the nature of the injury as explained in Virsa Singh vs. The State of Punjab AIR 1958 S.C 465 . If an injury is inflicted on a vital part of the body but no vital organ of the body is injured then it cannot be considered to be grievous hurt under clause VIII. The fact cannot be legally decided per se. In fact this is a matter of medical determination whether an injury endangers life or not and would depend upon attending circumstances. Any injury whether it endangers life will normally depend on the weapon used to cause the injury or the part of human body where the injury has been caused or the manner of causing injuries.
67.Reddy K.S Narayan and Murty O.P The Essentials of Forensic Medicine & Toxicology 294 (Jaypee Brothers, New Delhi 2014) have stated that dangerous injury is a variety of grievous injury. Dangerous injuries are those which cause imminent danger to life, either by involvement of important organs and structures, or extensive area of the body. If no surgical aid is available, such injuries may prove fatal.
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68.Dasari Harish and Chavali have stated in their study that it is true that injuries inflicted on vital parts of the body, such as the head, chest, or the abdomen, tend to endanger life, and are therefore dangerous, but they will not fall under this clause unless they are of such serious nature as to make the victim waver between life and death."
69.In Ramla vs. State 1963 Cri. L. J 387 (Raj) the High Court of Rajasthan observed "It may be pointed out that the perusal of the very definition given above shows that an injury may be called grievous only if it "endangers life"...... a simple injury cannot be called grievous simply because it happens to be caused on a vital part of the body, unless the nature and dimensions of the injury or its effect are such that in the opinion of the doctor it actually endangers the life of the victim."
70.Thus, the litmus test to determine whether an injury is grievous hurt is whether in any way the injuries threaten the life. Thus injuries caused to vital part are not grievous if they are not life threatening, though injuries on vital parts are usually life threatening but it is not a thumb rule that injuries on vital parts are life threatening.
71.The concept of an injury dangerous to life cannot in the very nature of things be very precise. While there may be cases which can be easily placed either in the category of injury dangerous to life or in the other category, there may be marginal and border line cases where it may be very difficult to categorise the injuries as dangerous to life or SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 28 of 37 -: 29 :- not and in such cases the medical experts may also differ. Since the concept of injury dangerous to life being not very precise, it is necessary that the medical witness should not remain content with making a bald statement that the injury in a particular case is dangerous to human life. He should explain all relevant data namely, whether the injury caused haemorrhage or shock or implicated important structures or organs or was very extensive or otherwise caused imminent danger and should also state the various grounds on which he considers the injury to be a dangerous one. The medico-legal expert should clearly mention in his report that the injuries are life threatening. Where the medico-legal expert in his report records that the general condition of the patient is very bad but the medical certificate omits that the Injuries are in fact dangerous to life, it fails to provide the proper guidance to the court.
72.The medico-legal examination of the injured is intended to enable the Investigating Agency and the Court to find out the nature of the offence and, therefore, the doctor examining an injured person has to opine that the injury in question is one or the other of the type recognized in the Indian Penal Code for the purposes of a given offence. When a doctor describes an injury as "dangerous to life", one has to see what had the doctor intended to convey thereby.
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73.The Court is not absolved of the responsibility while deciding a criminal case to form its own conclusion regarding the nature of the injury, Expert's opinion notwithstanding. The Court has to see the nature and dimension of the injury, its location and the damage that it has caused. Even when an injury is described as to be one which endangers the life the court has to apply its own mind and form its own opinion in regard to the nature of injury, having regard to the factors that should weigh with the Court, already mentioned. An injury caused on vital part of the body cannot be called grievous hurt unless the nature and dimensions of the injury or its effects are such that the doctor is of the opinion that it actually endangers the life of the victim. If the life of the person is not endangered, it is not a case of grievous hurt.
74.Indian penal code has nowhere defined the injuries which endanger human life. The term "endangers life" is more serious than the expression "dangerous to life". The Supreme Court of India in Niranjan Singh vs. State of Madhya Pradesh Appeal (Crl.) 487 of 2001 decided on 14 th June, 2007 observed that any injury can be said to grievous if the injury is sufficient in itself to endanger life. Any injury in order to endanger life should be imminent.
75.In Neelam Bahal vs. State of Uttarakhand Criminal Appeal 1012 of 2009 in the Hon'ble Supreme Court of India the report lacked the valuable guidance to the court by stating if the injury endangered life. Even though SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 30 of 37 -: 31 :- injuries were caused on vital parts since there was explanation of injuries explaining that injuries were life endangering, it was held that no conclusion of injuries being dangerous to life could be presumed.
76. In Atma Singh vs. The State of Punjab 1980 Cri LJ 1226 it was observed that the expression 'dangerous' is an adjective and the expression 'endanger' is verb. An injury which can put life in immediate danger of death would be an injury which can be termed as 'dangerous to life' and, therefore, when a doctor describes an injury as 'dangerous to life', he means an injury which endangers life in terms of clause (8) of Section 320 Indian Penal Code, for, it describes the injury 'dangerous to life' only for the purpose of the said clause. He instead of using the expression that this was an injury which 'endangered life' described it that the injury was 'dangerous to life', meaning both the times the same thing.
77.In Ganga Ram vs. State 1968 Cri LJ 134 (Rajasthan) the doctor should place all relevant information, viz. "the nature, extent of injury, the kind of weapon used, the part of body struck, whether the injury caused hemorrhage or shock, affected important structures or organs or that the injury was very extensive otherwise caused imminent danger and should also state the various grounds on which he considers the injury to be dangerous one."
78.With a perspective on the reality of the damage bringing about the weakening of the person in question for a base SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 31 of 37 -: 32 :- time of twenty days, the Indian Penal Code has assigned certain hurts as grievous however they probably won't be fundamentally risky or dangerous to life. The injury can also be grievous if it is of such a nature that the victim is compelled to suffer severe bodily pain or is unable to follow normal pursuits for at least 20 days. A hurt may cause extreme substantial and severe bodily pain, but not be dangerous to life. It must be indicated that such hurt was adequate to cause serious bodily pain for twenty days. Else, it might happen that such agony or pain was caused yet there might be nothing to show that it was caused in outcomes of that damage. In conclusion, the trial of terribleness is the sufferer's failure to take care of his standard interests for a time of twenty days. On the off chance that, where the impact of damage doesn't last for twenty days, such a hurt can't be assigned as grievous.
79.However, "mere remaining in the hospital for 20 days or more cannot be itself equated with the patient remaining unable to follow his ordinary pursuits for twenty days". Whether the victim suffered severe bodily pain cannot be objectively determined with accuracy. So it is probable that injury is erroneously reported as simple or grievous hurt. The phrase "ordinary pursuit" is very vague and can have different interpretations. It can mean every day routine of the victim like eating, bathing using toilets on his own without taking assistance from others. It can also be interpreted to mean that the victim could not pursue his SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 32 of 37 -: 33 :- profession or avocation which he could follow before the injury. However, it has been established that ordinary pursuits pertain to daily acts like eating, bathing or using toilets etc.
80.It has been ruled in Queen Empress vs. Vasta Chela ILR (1895) 19 Bom 247 that an injured may be quite capable of following his ordinary pursuits long before 20 days are over and yet for the sake of permanent recovery or greater case or comfort, be willing to remain as a convalescent in a hospital, especially if he is fed at the public expense. Similar view has been expressed in Khair Din vs. Emperor AIR 1931 Lah 280, Mathu Paily vs. State of Kerala 1962 Cri LJ 652 (Kerela High Court) and State (Delhi Administration) vs. Mewa Singh (1969) 71 PLR 290 . Thus, mere remaining in a hospital as a patient for 20 days or more cannot by itself be equated with the patient remaining unable to follow his ordinary pursuits.
81.In Shyamrao Vishnu Patil vs. State of Maharashtra & Another 1998 (5) Bom CR 757 in a case under Section 307 IPC Injury No. 1 caused to the victim was an incised wound over parietal region 3" x 1" bone deep which was certified as grievous in nature. The Hon'ble High Court refused to accept it as grievous because the doctor had also not stated that the incised injury sustained by the victim was dangerous to life or was such that the victim during SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 33 of 37 -: 34 :- the space of 20 days was in severe bodily pain or unable to follow his pursuits.
82.In terms of Section 320 IPC, it can be logically concluded that if the victim can follow his ordinary pursuits but unable to carry out his profession or avocation, for the reason of injury, it will not amount to grievous hurt.
83.The Supreme Court in the case of Mathai vs. State of Kerala (2005) 3 SCC 260 has observed that before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 IPC 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. 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.
84.For an individual might be held liable for an offence of causing grievous hurt, it must be demonstrated that he either expected to cause or realized that himself will generally be liable to cause grievous hurt and not otherwise. So as to decide, if the hurt is grievous, the degree of the hurt and the intention of the guilty party must be considered.
85.In the light of above discussion facts of present case need to be considered to ascertain the nature of injuries.
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86.PW-12 Dr. Deepak Vats has deposed in his testimony that the weapon of offence i.e. knife pierces the vital organs and if there is profuse bleeding, it could have caused death. Neither there is any mention in the MLC nor any other document that the weapon of offence had been pierced the vital organs or it led to profuse bleeding, which could have led to death.
87.In Jagdish Chand vs. State of HP 1992 Cr.LJ 3076 (HP) it was held that "Where injury was caused on the abdomen with a sharp edged weapon and the doctor had stated that the weapon had penetrated the abdominal cavity but had not involved any vital organs/ important structures, but had just touched the stomach, it was held that the accused had caused only simple hurt."
88.In the absence of any evidence about the injuries suffered by the complainant endangered her life or prevented her from pursuing her daily pursuits for 21 days the only conclusion that can be drawn is that the injuries had been inflicted on the complainant, but it cannot be exclusively held that the injuries were grievous or dangerous, as described in Section 320 IPC.
89.There is no evidence whatsoever or any medical record, from which it could be inferred that the injuries were grievous as defined under Section 320 IPC.
SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 35 of 37 -: 36 :- WHETHER OFFENCE PROVED UNDER SECTION 307 IPC
90.Having concluded that the accused had inflicted injuries on the complainant, it further needs to be determined if it was done with an intent to cause death and the ingredients of Section 307 IPC are satisfied.
91.It is clearly proved from the testimony of the complainant and other prosecution evidence that there were differences between the complainant and the accused since the complainant was not willing to reside with the accused despite having married him and eventually they agreed for divorce. The accused on the date of incident had decided to meet her to sign divorce papers but on meeting near Metro Station, he insisted that the complainant should accompany him to a hotel and when she refused he inflicted knife injuries to her. It is quite evident that accused had not come with any planning and had no intention to cause death. There is also no evidence that the injuries inflicted could have cause death in ordinary course of nature. Thus, the Prosecution has not been able to prove the reasonable intention or knowledge necessary for bringing home of offence under Section 307 IPC. However, it is proved beyond reasonable doubt that the accused had inflicted injuries on the person of the complainant with a sharp edged weapon.
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92.In view of above, the accused Rahul Naithani is convicted for committing the offence punishable under Section 324 IPC.
93.Put up for arguments on the point of sentence on 24.01.2022.
Announced in the open (NEENA BANSAL KRISHNA) Court on 14.01.2022 Principal District & Sessions Judge South East, Saket Courts, New Delhi SC No. 228/2019; FIR No. 458/2018 PS Badarpur; State vs. Rahul Naithani & Anr. Page No. 37 of 37