Delhi District Court
State vs . Amarnath Jha on 19 November, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 914/08
Unique Case ID No. 02404R0001472008
State Vs. Amarnath Jha
S/o Sh. Ram Gulam Jha
R/o WZ632 G, Gali No. 2,
Shri Nagar Colony, Shakurpur,
Delhi
(Convicted)
FIR No.: 1310/06
Police Station: Saraswati Vihar
Under Section: 307/324/452 Indian Penal Code
Date of committal to Session Court: 4.3.2008
Date on which orders were reserved: 31.10.2011
Judgment announced on: 15.11.2011
JUDGMENT:
As per allegations, on 24.11.2006 at about 5:10 PM at House No. WZ632 G, Shri Nagar Colony, Gali no. 2, Shakurpur, Delhi the accused Amarnath Jha committed trespass by entering into the house of Kamlesh Kumar (a human dwelling) with vegetable cutting knife having made preparations for causing hurt to Kamlesh Kumar Sharma or to put St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 1 him under fear of hurt or assault or of wrongful restrain. It is also alleged that the accused caused grievous injuries to Kamlesh Kumar Sharma with the said vegetable cutting knife with such intention and knowledge that under such circumstances, that if he caused the death of Kamlesh Kumar Sharma, the accused would have been guilty of murder. BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 24.11.2006 DD No. 47B was received in Police Station Saraswati Vihar pursuant to which SI Om Prakash along with Ct. Satpal reached the spot that is House No. 632 G, Shri Nagar Colony, Gali No.2 where he came to know that the injured was removed to BJRM Hospital by the PCR Van. SI Om Prakash thereafter reached BHRM Hospital from where he collected the MLC of the injured Kamlesh Kumar who was found fit for statement after which the statement of injured was recorded wherein he had informed the police that he was present in his bedroom and was watching TV when at about 4:30 PM his tenant Amarnath Jha came and threatened to teach him a lesson for demanding the rent in future. The injured further informed the police that thereafter Amarnath Jha who was having a kitchen knife, gave a number of injuries on his chest, chin, temporal region and behind the left ear on which he raised a hue and cry when his nephew Anuj Sharma came to his room and tried to apprehend Amarnath but he escaped and ran away. St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 2
On the basis of the said statement of Kamlesh Kumar Sharma the present FIR was got registered and the accused Amarnath Jha was arrested on 25.11.2006. After completion of the investigations the accused was charge sheeted.
CHARGE:
The Ld. Predecessor of this Court settled the charges under Sections 307/452 Indian Penal Code against the accused Amarnath Jha to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as ten witnesses as under:
Complainant/ eye witnesses:
PW1 Kamlesh Kumar Sharma is the complainant/ injured who has deposed that on 24.11.06 at about 4.30 PM he was in his bedroom and was watching T.V. when all of a sudden the accused Amarnath Jha who was armed with a kitchen knife, entered into his room and gave number of injuries on his chest, chin and temporal region & behind his left ear. According to the witness, the accused threatened to teach him a lesson for demanding the rent in future so that he would forget about demanding rent. He has deposed that he raised alarm to save himself and also attempted to save himself when his nephew namely Anuj Sharma on St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 3 hearing his cries entered into the room and tried to save him from the clutches of accused Amar Nath Jha but the accused pushed Anuj Sharma to one side and ran away causing injuries to Anuj as well. The witness has testified that they made a phone call to the police at 100 number pursuant to which PCR officials arrived and took him to the BJRM hospital. PW1 has deposed that he was bleeding profusely and all his clothes were stained with blood. According to him, he was medico legally examined at BJRM Hospital and was treated by giving stitches on his chin, chest and temporal region. He has testified that officials from Police Station Saraswati Vihar reached the hospital and recorded his statement which is Ex.PW1/A bearing his signature at point A. The witness has further deposed that he remained under treatment for about sixseven days though he was discharged on the same day.
The witness has correctly identified the accused Amarnath Jha in the Court as well as the case property that is the vest worn by him at the time of occurrence which is Ex.P1 and the broken piece of kitchen knife used by the accused which is Ex.P2.
In his crossexamination the witness has deposed that he had read his statement Ex PW1/A before signing the same. He has admitted that accused along with his family was a tenant in his house on the first floor for three years prior to occurrence but has denied the suggestion that he had very cordial relations with the family of accused and states that he St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 4 had good relations being a tenant but they were not allowed to enter his room without his permission. The witness has also admitted that wife of accused used to cook food for him but has voluntarily added that it was a master and servant relationship. He has denied the suggestion that there was no master and servant relationship or that she used to cook for him as a good gesture having good family relations or that cries from the rear room would not reach the front room or outside in the gali. According to him, some neighbours had also reached his house on hearing his cries but by that time the accused had run away from the house. The witness has deposed that he did not give the details of the neighbours to the Investigating Officer as he had been rushed to the hospital by PCR. PW1 has testified that he did not issue any rent receipt to the accused and that accused and his family had been staying in their street for the last ten years and he knew them since then. The witness has denied that the accused was regular in payment of rent and states that he used to demand money from him for no services rendered and also refused to vacate his house but he (witness) never made any complaint to the police previously or filed any eviction petition. PW1 has denied the suggestion that accused never demanded any money from him and has voluntarily added that son of the accused namely Abhishek aged about 18 years committed theft in his house several times but on the request of the accused and his wife he did not report the same to the police. According to him, he had stated to the St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 5 Investigating Officer that his nephew Anuj was pushed by the accused and he also sustained injuries but when confronted with his statement Ex.PW1/A the said fact was not found recorded. The witness has further deposed that MLC of Anuj was not prepared but his wound had been stitched at BJRM hospital. PW1 Kamlesh Kumar has deposed that the bed sheet and the pillow were also stained with blood but the Investigating Officer did not seize the same. He has denied the suggestion that he had filed the present false case to evict the accused from his house so that higher paying tenant could be inducted or that he sustained injuries accidentally because of breaking of glass tumbler which was lying on his bed. According to the witness, the knife broke when the accused was causing injuries to him and the accused stopped causing injuries to him when the knife broke. He has denied the suggestion that knife did not brake while causing injuries to him or in fact no injuries were caused to him by the accused.
PW3 Anuj Sharma is the nephew of the injured/ complainant who has deposed that in November 2006 he was staying with his uncle at house No. WZ 632/G, Gali No. 2 Shree Nagar colony, Shakur Basti, Delhi where the accused was a tenant living on the first floor of the house of his uncle. According to him, on 24.11.2006 at about 4.30 PM he was present in the front room of the house whereas his uncle was watching T.V. in his bed room on the rear side when he heard the cries of his uncle and rushed St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 6 to his room. The witness has deposed that he saw that accused was holding a knife and was stabbing his uncle Kamlesh Kumar Sharma on which he tried to separate the accused from his uncle in which process the accused accidentally hit him and his (witness's) spectacle broke causing injuries on his cheek. He has testified that the accused ran away from the spot and the knife fell somewhere nearby after which they called up the PCR at telephone number 100 and thereafter PCR vehicle arrived and shifted his uncle to BJRM hospital.
In his cross examination the witness has deposed that his statement was recorded only once by the Investigating Officer in this case wherein he had stated that when he went to the room of his uncle on hearing his cries, accused was holding knife and stabbing him and when he tried to separate the accused from his uncle in which process he (accused) accidentally hit him, breaking his spectacle and causing injuries on his cheeks and that he was present in the front room of the house of his uncle but when the witness was confronted with his statement Ex.PW3/DA the said facts were not found so recorded. He has admitted that the gali where house of his uncle is located is heavily inhabited and there was also moderate noise level but has denied the suggestion that because of noise in the gali, the cries raised in the rear room could not be heard in the first room or in the gali. According to PW3, accused had been a tenant in the house of his uncle for two to three years prior to occurrence and St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 7 occasionally, wife of accused used to assist his uncle in cooking food but he is unable to tell if there had been no dispute between the accused and the uncle previously since he (witness) had been staying with his uncle only three months prior to occurrence. He has testified that the knife was recovered by the police from the house itself i.e. passage on the ground floor. PW3 has denied the suggestion that his uncle filed the present false case to evict the accused from his house so that higher paying tenant could be inducted or that his uncle sustained injuries accidentally because of breaking of glass tumbler, which was lying on his bed. He has also denied that no occurrence as stated by him took place or that accused did not cause any injuries to his uncle or that he was not present in the house of Kamlesh Kumar Sharma on 24.11.2006.
Medical witnesses/ evidence:
PW5 Dr. Shipra Rampal has deposed that on 27.11.2006 she examined the Xray plates of patient Kamlesh Kumar vide MLC No. 25707 and after examining the skiagrams of skull AP & Lateral views and skiagram of chest AP view, she opined that no bone injury was seen in both skiagrams. She has proved her report in this regard which is Ex.PW5/A. She has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and her testimony has gone uncontroverted.
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 8
PW6 Dr. Sardaman Singh has deposed on behalf of Dr. Om Prakash and Dr. Rahul who both have left the services of BJRM Hospital. According to him, on 24.11.2006 at about 5:45 PM the patient Kamlesh Kumar was examined by Dr. Om Prakash vide MLC Ex.PW6/A according to which on local examination following injuries were found:
1. Stab wound on left side of neck about 1.5 cm x .5 cm.
2. Stab injury about 1.5 cm x .5 cm on left temporal region with active bleeding.
3. Stab wound about 2 cm x .5 cm on lateral aspect of left arm.
4. Stab wound on left side of chest near axilla about 1 cm x 1 cm.
He has further proved that after stitching the wound the patient was referred to Dr. Rahul SR Surgery who examined the patient and gave history of assault sustained on stab injuries to left site of skull about half hour back, there was no history of loss of consciousness, ENT bleeding or vomiting. The witness has further deposed that as per MLC on local examination following injuries were noticed by Dr. Rahul:
1. Chest: stab wound on left side axilla 1 cm x 1cm x .5 cm, no active bleeding.
2. Stab injury 1/5 cm x 1.5 cm on left temporal region, actively bleeding
3. Abrasion over left cheek.
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 9
4. CLW 2.5 x 1 cm over left elbow The witness has proved that on 18.12.2006 Dr. Rahul gave an opinion that as per the Radiologist there was no bony injuries, hence the nature of injuries were Simple which opinion is at point C on the MLC Ex.PW6/A. He has also deposed that on 24.11.2006 (wrongly written as 24.1.2006) at 8:20 PM Dr. Om Prakash had noted that patient left the hospital against medical advice (LAMA). He has proved that the garments of the patient were sealed and handed over to the police by Dr. Om Prakash.
In his crossexamination the witness has admitted that he has no personal knowledge of the findings recorded by Dr. Om Prakash and Dr. Rahul as the patient was not examined in his presence.
PW10 Dr. Prem Arora has deposed that on 30.11.2006 he was working as Consultant Surgeon in MGS Hospital, Rohtak Road, West Punjabi Bagh and Dr. Rajan Madan was also working in the same unit with him. According to him, as per availability of OPD card record which is Ex.PW10/A, they examined patient Mr. Kamlesh Kumar Sharma, aged 61 years, Male. The witness has also proved the out patient bill pertaining to the said hospital which is Ex.PW10/B; the casualty card dated 24.11.2006 of the said patient which is Ex.PW10/C which is pertaining to MGS hospital. According to him, as per record there was CLW cutting injury on St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 10 left side of axillary interior line and the patient had also come on 27.11.2006 in casualty and examined by some doctor on duty which finding dated 27.11.2006 is Ex.PW10/D. In his crossexamination the witness has deposed that the injury which was treated by them was in fact treated at some other hospital and they had only removed the stitches. On a specific Court question the witness has deposed that On the basis of the record of the previous hospitals he is of the opinion that the injury was simple in nature.
However, he is unable to give any opinion with regard to the weapon used or with regard to the cause of the injury.
Police/ official witnesses:
PW2 HC Rajesh Kumar is the Duty Officer who has deposed that on 24.1106 he was posted at Police Station Saraswati Vihar and was working as a duty officer from 5 PM to 1 AM night and at about 10:10 PM he received a rukka through Const. Sat Pal sent by ASI Om Prakash on the basis of which he recorded formal FIR No.1310/06 carbon copy of which is Ex.PW2/A. He has proved having made his endorsement on the rukka which is Ex.PW2/B. According to him, after registration of the FIR, copy of FIR and rukka was sent to ASI Om Prakash through Ct. Sat Pal. This witness was not crossexamined by the accused and his testimony has gone uncontroverted.
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 11
PW4 HC Chittar Mal has deposed that on 4.12.2006 the investigations of the present case was entrusted to him as the main Investigating Officer ASI Om Prakash was on leave. According to him, he produced the accused Amarnath Jha before the court of Ld. MM on 5.12.2006 and his remand was extended upto 19.12.2006. He has also deposed that he again produced the accused before the Ld. MM on 19.12.2006 and the remand was extended upto 2.1.2007. He has further proved having collected the MLC of the accused on 22.12.2006 and on 2/3.1.2007 he returned the case file to ASI Om Prakash. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted.
PW7 Ct. Om Prakash is a formal witness who has proved having recorded the DD No. 47B on 24.11.2006 copy of which is Ex.PW7/A. He has deposed that the copy of the DD was sent to ASI Om Prakash through Ct. Rajender Singh. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted.
PW8 SI Om Parkash is the Investigating Officer who has deposed that on 24.11.2006 he was posted as ASI in Police Station Saraswati Vihar and on that day on receipt of DD No. 47B he along with Ct. Satpal reached at spot that is H.No. 632, Shrinagar, Gali No. 2 where he came to know that the injured had already been removed to BJRM St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 12 hospital by the PCR van but no eye witness met him at the spot. He has further deposed that thereafter he went to BJRM hospital and collected MLC of injured Kamlesh Kumar which is Ex.PW6/A. According to him, the doctor declared him to be fit for statement and hence he recorded his statement which is Ex.PW1/A and made his endorsement on the same which is Ex.PW8/A after which he sent the rukka to Police Station Saraswati Vihar through Ct. Satpal for registration of the case. He has also testified that the doctor handed over to him one sealed pullanda containing the garments of injured sealed with the seal of hospital alongwith the sample seal which he seized vide memo Ex.PW8/B and thereafter returned back to the spot where one Anuj Sharma who claimed himself to be the eye witness of the incident met him and on whose pointing out he prepared site plan which is Ex.PW8/C and thereafter recorded his statement under Section 161 Cr.P.C. and in the meantime Ct. Satpal came back to the spot along with copy of FIR and rukka. The witness has also deposed that efforts were made to trace out the accused but he could not be found and thereafter on the next day at around 4:00 PM on the basis of a secret information he went to Harsh Vihar Jheel Wala Park where accused Amarnath Jha was present in the park and on the pointing out of the secret informer the accused was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E after which the disclosure statement of the accused was recorded which is Ex.PW8/F. The witness St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 13 has proved that thereafter the accused led him to his house which was above the place of incident in the same house as he was a tenant of complainant, from where he produced one knife used for cutting vegetable, whose handle was broken, which knife was taken out by the accused from below the bedding lying on the cot. According to the witness, there were blood stains on the said knife and he placed the knife on a paper and sealed it in a pullanda with the seal of OP and seized the same vide memo Ex.PW8/G. He has testified that thereafter the accused was got medically examined and produced in the court and sent to judicial custody.
He has correctly identified the accused Amarnath Jha in the Court as well as the case property that is one broken blade of knife as the same which was got recovered by the accused which is Ex.P2. According to him, he also obtained result as to the nature of injuries on the MLC of injured Kamlesh and the doctor opined it to be simple in nature. He has deposed that thereafter he was transferred and he deposited the file with the MHC(R).
In his crossexamination the witness has deposed that he reached the spot at about 5:25 PM but he did not find either any blood stains or any signs of struggle. According to him, there were a number of public persons but none of them claimed themselves to be eye witnesses of the incident. He has testified that when he recorded the statement of the complainant at that time doctor was present at his seat but he did not get St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 14 the statement of the complainant attested from any of the hospital staff. PW8 has also deposed that doctor had written discharged on the documents of the complainant when he was still present in the hospital. He has further deposed that no public person gathered in the park from where accused was arrested but has denied that the disclosure statement of the accused was recorded in the Police Station. According to the witness, he prepared the site plan at the instance of nephew of complainant but he had not picked up blood stained spots from the ground floor nor he seized any pillow, bed sheet or quilt etc. from the house of the complainant from the ground floor and states that the rooms were locked at that time. He has also deposed that he visited the spot again but could not find any blood stains or blood stained pillows etc. PW8 has further deposed that he had not joined any public persons living in neighbourhood in investigation when he first visited the house of complainant. He has testified that the seal after use was handed over to Ct. Satpal and he returned the same to him on the next day but no entry regarding return of the same was made in rozanamacha. He has denied the suggestion that he had not conducted the investigations fairly and properly or that he had not visited the spot to conduct investigations or that no weapon of offence as alleged was recovered or that the same has been planted upon the accused.
PW9 ASI Ashok Kumar is the MHCM who has deposed that on 24.11.2006 ASI Om Prakash had deposited one sealed parcel containing St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 15 exhibits of this case duly sealed with the seal of BJRM Hospital and one sample seal which he took into possession vide serial no. 3765 of register no. 19. According to him, on the next day that is on 25.11.2006 ASI Om Prakash had deposited one sealed pullanda duly sealed with the seal of OP which he took into possession vide same serial number of register no. 19 copy of which entry is Ex.PW9/A. He has deposed that on 30.4.2007 he sent the said two parcels and sample seal to FSL Rohini vide RC No. 163/21/07 through ASI Om Prakash copy of which RC is Ex.PW9/B and the FSL result was received through Ct. Dharmender later on. He has proved that no tampering was done while the exhibits/ pullandas remained in his possession.
In his crossexamination the witness has denied the suggestion that he did not made entries on relevant date and time or that he did not receive any exhibits on that day. He has admitted that he had copied the contents of the seizure memo in the relevant entry.
Statement of accused/ defence evidence:
After completion of prosecution evidence the statement of the accused under Section 313 Cr.P.C. has been recorded wherein all incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated in the present case. According to him, he has no role to play in the alleged incident as alleged and no recovery was effected from his possession or at his instance. St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 16 However, he has not lead any evidence in his defence. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the testimonies of the various witnesses and the evidence on record. My findings are as under:
Firstly in so far as the identity of the accused is concerned, the same is not disputed since both the complainant and the accused were known to each other. The accused Amarnath Jha has been specifically named in the FIR. The complainant was the landlord of the accused and has also specifically identified him in the Court.
Secondly it also stands established that the accused had been residing in the area for the last more than 10 years and it was on the recommendation of the neighbours that he was inducted by the complainant as a tenant.
Thirdly it stands established that the accused used to reside with his family in the premises of the complainant as a tenant and the parties had been maintaining cordial relations so much so that as a goodwill gesture the wife of the accused used to cook food for the landlord/ complainant.
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 17
Fourthly Kamlesh Kumar Sharma (PW1) the complainant in the present case has duly proved that on 24.11.2006 at about 4:30 PM he was watching TV in his bed room when the accused entered his room and inflicted injuries on his chest, chin, temporal region and behind his left year and threatened him that he would teach a lesson for demanding the rent on which his nephew Anuj Sharma hearing his cries entered the room and saved him from the clutches of the accused on which the accused pushed him and ran away.
Fifthly Kamlesh Kumar Sharma has proved that he had dialed 100 numbers on which the PCR officials came to the spot and took him the BJRM Hospital where he was given medical treatment and the clothes worn by him were also seized.
Sixthly the testimony of Kamlesh Sharma also finds due corroboration from the testimony of Anuj Sharma (PW3) who has deposed that on the date of incident at about 4:30 PM his uncle was watching TV in his bed room while he was present in the front room of the house, when he heard the cries of his uncle on which he rushed to the room and saw that accused was holding a knife and was stabbing his uncle on which he separated both of them in which process the accused also hit him (Anuj Sharma) thereby breaking his spectacles and causing injury on his cheek.
Seventhly Dr. Shipra Rampal (PW5) and Dr. Sardaman Singh (PW6) from BJRM Hospital have duly proved that the complainant did not St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 18 receive any bony injury and that when the injured was brought to the hospital and has proved to have sustained the following injuries:
1. Stab wound on left side of neck about 1.5 cm x .5 cm.
2. Stab injury about 1.5 cm x .5 cm on left temporal region with active bleeding.
3. Stab wound about 2 cm x .5 cm on lateral aspect of left arm.
4. Stab wound on left side of chest near axilla about 1 cm x 1 cm.
Further, PW6 Dr. Sardaman Singh has duly proved that since the injured was not having any bony injury hence the nature of injuries was opined as Simple. Further, PW10 Dr. Prem Arora has proved that the injured had been treated by him in MGS Hospital.
Eighthly it further stands established from the evidence on record that the weapon of offence that is the kitchen knife whose handle was broken, had been got recovered by the accused below the bedding lying on the cot which knife was having blood stains but no opinion has been taken whether the injures in question have been inflicted by the said weapon or not.
Ninethly it is evident from the record that during the course of trial the Ld. Predecessor of this Court observing the mental condition of the accused to be improper he was referred to the Medical Board and the Board has opined that he was suffering from Paranoid Schizophrenia for which the accused was under treatment and it was only after the St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 19 completion of his treatment that trial of the accused has now again commenced.
Tenthly I may observe that M' Nagthan Rule provides that there is a presumption of sanity and the burden of proof is on the person who claims insanity. Sanity is a rebuttable presumption and the burden of proof is on the party relying upon it. Whether a particular condition amounts to a decease of the mind within the rules, is not a medical but legal question to be decided in accordance with the ordinary rules of interpretation. There is a clear distinct between the internal and external factors affecting the mind of the accused which would depend largely upon the elements of voluntariness and awareness of the circumstances surrounding the action of the accused. In order to satisfy this requirement, the wrong committed must be a legal wrong and the accused be functionally unaware that his actions are legally wrong at the time of offence. A practical issue is whether the fact that an accused is labouring under a "mental disability" should be a necessary but not sufficient condition for negating responsibility i.e. whether the test should also require an incapacity to understand what is being done, to know that what one is doing is wrong, or to control an impulse to do something and so demonstrate a causal link between the disability and the potentially criminal acts and omissions. Therefore, applying the above Rules to the facts of the present case, it is evident that the accused was a patient of St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 20 Paranoid Schizophrenia so much so that the trial had to be stopped till the time he was under treatment at IBHAS which was resumed after completion of his treatment. I may observe that medical insanity is different from legal insanity and the accused has failed to bring on record evidence to show that at the time of commission of the offence the accused was suffering from any legal insanity though the probability of his committing the offence while undergoing a phase of medical insanity cannot be ruled out.
Lastly the various proceedings conducted by the Investigating Officer with regard to recording the statement of the complainant and other witnesses and the arrest of the accused and also the recovery of the weapon of offence have been duly proved.
FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 21
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case, it is evident that the identity of the accused stands established. The aspect that the relationship between the complainant and the accused was of landlord and tenant and also stands established. It further stands established that the accused Amarnath Jha had been residing in the premises of the complainant and there were cordial relations between the parties and on the date of incident without any provocation or instigation the accused had assaulted the complainant and caused Simple injuries to him by using a St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 22 sharp edged weapon.
To constitute an offence under Section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.:
Vipin Bihari Vs. State of MP reported in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. reported in 2003 (10) SCC 434; Hari Mohan Mandal Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances. St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 23
It stands established from the medical record of the accused that he had been suffering from Paranoid Schizophrenia and was under
treatment at IBHAS during the period of trial and as per the MLC of the the injured the injuries so inflicted that is on left side of neck, left temporal region, lateral aspect of left arm and on left side of chest near axilla are all injuries on the vital organs caused with a sharp edged weapon but there is nothing on record to prove the intention and knowledge so attributed to the accused and hence, the case of the accused does not fall within the ambit of provisions of Section 307 Indian Penal Code. However, he is held guilty of the lesser offence under Section 324 Indian Penal Code read with Section 452 Indian Penal Code for which the accused is accordingly convicted.
Case be listed for arguments on sentence on 19.11.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.11.2011 ASJII(NW)/ ROHINI
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 24
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 914/08 Unique Case ID No. 02404R0001472008 State Vs. Amarnath Jha S/o Sh. Ram Gulam Jha R/o WZ632 G, Gali No. 2, Shri Nagar Colony, Shakurpur, Delhi (Convicted) FIR No.: 1310/06 Police Station: Saraswati Vihar Under Section: 307/324/452 Indian Penal Code Date of Judgment: 15.11.2011 Arguments heard on: 19.11.2011 Date of sentence: 19.11.2011 APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Convict in person with Amicus Curiae Sh. Aseem Bhardwaj Advocate.
ORDER ON SENTENCE:
Vide my judgment dated 15.11.2011, the accused Amarnath Jha has been held guilty of the offence under Section 324 read with 452 St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 25 Indian Penal Code.
The accused Amarnath Jha was the tenant of the complainant Kamlesh Kumar Sharma. As per allegations on 24.11.2006 at about 5:10 PM at House No. WZ632 G, Shri Nagar Colony, Gali no. 2, Shakurpur, Delhi the accused Amarnath Jha committed trespass by entering into the house of Kamlesh Kumar (a human dwelling) with vegetable cutting knife having made preparations for causing hurt to Kamlesh Kumar Sharma or to put him under fear of hurt or assault or of wrongful restrain. It is also alleged that the accused caused grievous injuries to Kamlesh Kumar Sharma with the said vegetable cutting knife with such intention and knowledge and under such circumstances, that if he caused the death of Kamlesh Kumar Sharma, the accused would have been guilty of murder. However, on the basis of the testimonies of the various witnesses of the prosecution the accused has been acquitted of the charge under Section 307 Indian Penal Code but he has been held guilty of the offence under Section 324 read with 452 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Amarnath Jha is aged about 50 years having a family comprising of aged widow mother, wife, two daughters and one son. He is a Post Graduate in Hindi and Sankrit and was previously working as Priest in a temple. Ld. Amicus Curiae appearing on behalf of the convict has vehemently argued that the convict is a first time offender and has no criminal background. St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 26 He submits that the convict is suffering from mental problems and requests that a lenient view be taken against him. On the other hand Ld. Addl. PP for the State has prayed for a strict view against the convict.
I have considered the rival contentions. I may observe that M' Nagthan Rule provides that there is a presumption of sanity and the burden of proof is on the person who claims insanity. Sanity is a rebuttable presumption and the burden of proof is on the party relying upon it. Whether a particular condition amounts to a decease of the mind within the rules, is not a medical but legal question to be decided in accordance with the ordinary rules of interpretation. There is a clear distinct between the internal and external factors affecting the mind of the accused which would depend largely upon the elements of voluntariness and awareness of the circumstances surrounding the action of the accused. In order to satisfy this requirement, the wrong committed must be a legal wrong and the accused be functionally unaware that his actions are legally wrong at the time of offence. A practical issue is whether the fact that an accused is labouring under a "mental disability" should be a necessary but not sufficient condition for negating responsibility i.e. whether the test should also require an incapacity to understand what is being done, to know that what one is doing is wrong, or to control an impulse to do something and so demonstrate a causal link between the disability and the potentially criminal acts and omissions.
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 27
Applying the above Rules to the facts of the present case, it is evident that the convict was a patient of Paranoid Schizophrenia so much so that the trial had to be stopped till the time he was under treatment at IBHAS which was resumed after completion of his treatment. I may observe that medical insanity is different from legal insanity and the convict has failed to bring on record evidence to show that at the time of commission of the offence the convict was suffering from any legal insanity though the probability of his committing the offence while undergoing a phase of medical insanity cannot be ruled out. Therefore, under these circumstances any harsh view to the convict would be prejudicial not only to him but also to his family members.
On request of the Ld. Counsel appearing on behalf of the convict the report of the Probation Officer has been called which report has been received according to which the family of the convict has no permanent/ regular source of income and the family finds it tough to meet daily basic requirements easily. It is reported that the convict is still suffering from mental problems for which he is under treatment and there are chances of reformation.
In view of the above, I hold that the interest of justice require that the convict Amarnath Jha should be given an opportunity to reform himself. I, therefore, direct that the convict Amarnath Jha be released on St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 28 probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of Two years with supervision, on his furnishing a personal bond in the sum of Rs.20,000/ with one local surety of the like amount and to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. In case of any default or repetition of offence, the convict shall undergo Simple Imprisonment for a period of Two years.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 19.11.2011 ASJII(NW)/ ROHINI
St. Vs. Amarnath Jha, FIR No. 1310/06, PS Saraswati Vihar Page No. 29