Delhi District Court
State vs : Amit Kumar on 2 May, 2022
IN THE COURT OF SH. VIMAL KUMAR YADAV
PRINCIPAL DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
CNR NO. DLNT01-007929-2019
Sessions Case No. 479/2019
State Versus : Amit Kumar
S/o Sh. Ram Kishore Saini
R/o District Shahjanpur,
Village Tilehar, UP
FIR No. : 228/17
Police Station : Bawana
Under Section : 307 IPC
Date of institution : 17.08.2019
Date of reserving judgment : 30.03.2022
Date of pronouncement : 02.05.2022
Appearance:
Sh. Sanjay Jindal, Ld. Addl. PP for State.
Sh. Ankur Sharma, Ld. Amicus Curiae for accused.
JUDGMENT
1. The SHO of Police Station Bawana had filed charge-sheet against accused Amit Kumar in the court of Ld. Metropolitan SC No. 479/19 State Vs.. Amit Kumar Page No. 1 of 24 Magistrate for his trial for committing offence punishable U/s 307 IPC arising out of FIR No. 228/17. After compliance of provisions of Section 207 Cr.P.C., Ld. Metropolitan Magistrate committed the case to the court of Sessions U/s 209 Cr.P.C. for his trial.
2. Brief facts of the case of prosecution are that on 29.05.2017 at about 8:40 PM at Factory No. A-68, Sector-1, DSIDC, Bawana, Delhi, an altercation took place on the issue of sleeping in the said factory between the accused Amit Kumar and the complainant namely Shivam @ Shiva, which led to a scuffle leading to an assault by the accused who used a tubelight/broken tubelight to hit in the stomach of the complainant Shivam @ Shiva, due to which Shivam @ Shiva sustained grevious injuries, whereas the accused ran away from the spot. The complainant also sustained injuries on his forehead. It is further alleged in the complaint Ex. PW6/A that the friend of the complainant namely Sh. Mukesh took the complainant/injured Shivam @ Shiva to M. B. Hospital at Poothh Khurd, Delhi, where he was given requisite medical assistance and treatment.
3. As prima facie case for the offence punishable U/s 307 IPC was made out against accused Amit Kumar on the basis of the material SC No. 479/19 State Vs.. Amit Kumar Page No. 2 of 24 on record and accordingly, charge was framed against the accused Amit Kumar on 09.09.2019 to which he pleaded not guilty and claimed trial when explained in vernacular.
4. The prosecution has arrayed 9 witnesses in order to drive home its case and managed to examine 8 witnesses in support of its case i.e. PW1 ASI/DO Rajpal Singh, who was looking after the work of Duty Officer and registered the FIR and had also issued certificate U/s 65B of the Evidence Act Ex. PW1/C.
5. PW2 Sh. Sanjay was working as a labourer in the factory where incident took place and so is the case with PW5 Mukesh Kumar.
6. PW3 HC Naveen, who was posted as DD writer at PS Bawana at the relevant time and recorded DD No. 86B. He has brought the original DD register containing the aforesaid DD entry, attested copy of which is Ex. PW3/A.
7. PW4 Dr. Raju V., Casualty Medical Officer, Maharishi Valmiki Hospital, Poothh Khurd, Delhi, who has prepared MLC No. 2038/17 Ex. PW4/A and on 23.07.2017, he opined that weapon which SC No. 479/19 State Vs.. Amit Kumar Page No. 3 of 24 was used in causing above said injuries to the patient, was sharp.
8. PW6 Sh. Shivam @ Shiva is the complainant/victim of this case, who has deposed most vital aspects of the incident and about the complicity of the accused.
9. PW-7 HC Jitender, who was posted as HC at PS Bawana and he alongwith IO/ASI Krishan Kumar had reached at Maharishi Valmiki Hospital, Delhi and was associated with IO throughout the investigation.
10. PW8 SI Krishan Kumar, who was posted at PS Bawana at the relevant time and is the IO of the case
11. In the statement U/s 313 Cr.P.C., accused has either denied the incriminating evidence emerging on record put to him or has expressed his ignorance about the same. He has stated in his statement that he has been falsely implicated in the instant case at the instance of IO and no such injury was caused by him to the complainant Shivam @ Shiva. However, opportunity was given to him to lead evidence in his defence, which he did not avail.
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12. I have heard the arguments addressed by Sh. Sanjay Jindal, Ld. Addl. PP for State and Sh. Ankur Sharma, Ld. Amicus Curiae for accused and have gone through the record of the case and relevant provisions of law.
13. Before proceeding to examine the culpability of the accused, in the conspectus of the facts and findings recorded, it would be worthwhile to reproduce Sections 307 of the IPC:
"307- Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is cause, be punished with death.]
14. In order to drive home the case U/s 307 IPC, the SC No. 479/19 State Vs.. Amit Kumar Page No. 5 of 24 prosecution is under obligation to establish certain indispensable facts, i.e. an act done by a person either with such an intention or knowledge or under such circumstances that the act would have resulted into death of the recipient of the actions of the former and it would have amounted and fallen into the definition of murder.
15. What is important is that there shall either be an intention or a knowledge or the offensive act was done under such a situation or circumstances that the act if successful would result into murder. Thus, anything falling short of murder containing the other ingredients would amount to an offence of attempt to murder.
16. Thus, if by any act done by anyone results into that would be murder, but for the fact that the death does not take place is an act of attempting to murder. In other words, minus culpable homicide/death, all the requisite of the offence of murder should be present in order to constitute offence U/s 307 IPC.
17. The prosecution, in order to establish its case, has heavily relied upon the testimony of the victim Shivam @ Shiva together with that of the statement of Sanjay and Mukesh Kumar, who according to SC No. 479/19 State Vs.. Amit Kumar Page No. 6 of 24 the prosecution's case, were present at the spot when the incident took place. The narrative coming through the mouth of the so-called independent witnesses Sanjay and Mukesh Kumar have been dented with by the counsel for the accused inasmuch as he has been able to show that these two persons do not strictly fall into the definition of eye witnesses. Though almost immediately after the incident, either they reached there or were able to witness the post incident scenario, which can one way or the other supports the case of the prosecution coming through the mouth of the victim Shivam @ Shiva.
18. The victim or the star witness of the prosecution has deposed that on the fateful day of 29.05.2017 in the evening at about 8:45 PM in the factory where he was not only working, but residing as well, i.e. at property No. A-68, Sector-I, Bawana, Delhi, 5-6 colleagues and co-workers were present in the factory, which included the accused Amit and Nandu etc. where an altercation took place between him, i.e. the complainant Shivam @ Shiva and accused Amit. And while it was going on, another person from the vicinity namely Kripal had surfaced on the scene and according to the victim, the accused Amit at his instance beaten him and attacked him with a fused tube light and caused cut injuries in his stomach. The tube light in the SC No. 479/19 State Vs.. Amit Kumar Page No. 7 of 24 process got broken and sharp edges of the broken tube light became instrumental in causing cut injuries to the victim Shivam @ Shiva. Thereafter, the victim fell down and both Amit and Kripal fled away from the scene. The usual deposition of the victim being taken to the hospital and getting treatment has come on record. In addition to Amit, Kripal has also been named, who had beaten him. The accused Amit has been identified by the victim and in any case, there is no dispute qua the identity.
19. Although, injury is not the deciding factor in a case U/s 307 IPC, nevertheless, it has a role in it. It is the intention or the knowledge coupled with or otherwise, the circumstances under which an act is conducted is of utmost importance if the intention to kill resulting into death can be inferred from the intention, knowledge or the circumstances in which the offence took place, then notwithstanding the fact that the injury was or was not there, still Section 307 IPC is attracted. Reference in this context can be made to the judgments in cases Vasant Virthu Jadhav Vs. State of Maharashtra (1997) 2 Crimes 539 (Bom) and Ansarudin Vs. State of Madhya Pradesh (1997) 2 Crimes 157 (MP).
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20. Thus, from overall circumstances, it is to be seen as to whether the conduct of the accused fell short of murder or not and whether he had such an intention or was having knowledge or that such circumstances were there which can bring the act of the accused within the realm and domain of Section 307 IPC. Incidentally, in the instant case, the victim had suffered injuries as per the MLC Ex. PW4/A. The injuries according to the medical opinion were grievous in nature and were the result of weapon or object which was sharp. Existence of injury, irrespective of its nature being simple or grievous, such a person who, under these circumstances entertaining the aforesaid intention or knowledge of causing death, shall be liable for enhanced punishment upto life, which in the absence of any injury was only confined to a term of only 10 years as per Section 307 IPC.
21. Thus, the testimony of the victim, Sanjay and Mukesh Kumar are of utmost importance together with the testimony of the doctor, who has described the injuries received by the victim to be grievous in nature.
22. So far as the remaining witnesses are concerned, they all are concerned with the procedural aspect of the case as they all are SC No. 479/19 State Vs.. Amit Kumar Page No. 9 of 24 official/police witnesses, who have discharged their responsibility qua registration of FIR, the investigation and filing of the chargesheet qua FIR No. 228/17, U/s 307 IPC etc. They have deposed on the expected lines and their narrative has more or less gone unshaken, thereby establishing the procedural aspect and in this context, there is no serious challenge to their testimony.
23. The issue boils down to the aspect as to whether the accused can be held responsible for the offence with which he has been charged. So far as the incident of quarrel is concerned, the testimony of the victim has found support in the testimony of two other witnesses, i.e. Sanjay and Mukesh Kumar as they had heard the altercation between the accused and the victim and they almost immediately after the incident were there at the spot and had found the victim in injured and unconscious position. If the testimony of these two witnesses is read together with the statement of the victim, then it can be clearly inferred that on 29.05.2017 at about 8:40 PM at premises No. A-68, Sector-I, DSIDC, Bawana, Delhi, a quarrel took place involving the accused and the victim and possibly one more person namely Kripal, however, about Kripal only the victim has stated and the others are totally silent on this aspect.
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24. The case of the prosecution further gets strength from the testimony of police officials, who took the victim to the hospital according to the statement of the doctor who examined the victim on being brought to the hospital, i.e. MV Hospital at Bawana by one Mukesh Kumar, who happens to be the friend of the victim, from where the victim was referred and was taken to BJRM Hospital. The victim reached to the MV Hospital at about 8:30 PM whereas on that very day, he was examined by the Senior Resident Doctor, who was on duty, where he has described the situation and injury and other vitals of the victim alongwith that, it has also been described that the victim was seemingly under the influence of alcohol.
25. Thus, what emerges on record is that on 29.05.2017 in the evening post working hours at the factory No. A-68, Sector-1, DSIDC, Bawana, Delhi, an altercation took place between accused Amit Kumar and victim Shivam, seemingly on a trivial issue of sleeping, which went out of hand and the oral exchange of words became a physical duel in which the accused hit the victim with a tube light. The victim fell down and the accused fled from the scene as the ruckus brought other co-workers also on the scene.
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26. There is no dispute qua the incident, place and time of incident and complicity of the accused as his identity is undisputed, as the parties were known to each other prior to the incident. Albeit the accused has taken a plea that he has been falsely implicated by victim and police, but he could not bring anything to support it.
27. The medical record Ex. PW4/A and the oral narrative of the victim, to some extent supported by two co-workers/independent witnesses, qua atleast some incident or say the incident in question leaves no doubt about the most of the important ingredients including incident, involvement of person, injury sustained by the victim, weapon of offence being a broken/tube light.
28. The contention of the counsel for the accused that the two independent witnesses did not support the case of the prosecution, nowhere supports the cause of the accused in view of the statement of the victim, which cannot be ignored, especially when MLC supports the narrative qua injury, giving credence to the testimony of the victim. It is not the case of the accused that he was not present at the spot on the fateful day, nor it is the case that some enemity is or was there between him and the victim. This rules out the possibility of false SC No. 479/19 State Vs.. Amit Kumar Page No. 12 of 24 implication by victim.
29. In these circumstances, the plea of the accused of false implication by police also falls flat notwithstanding his claim. No evidence has been led by the accused to support and substantiate this assertion of false implication either by victim or by investigating officer/police. He could not show nor it seems any effort has been made in this direction, therefore, any bald assertion without any further reference or material is liable to be brushed aside.
30. It has been vehemently argued by the learned Counsel for the accused that the investigation carried out by the police is full of defects, such as the photographs of the site, where the incident took place, have not been taken, no blood samples, as must have been there at the spot, have been lifted, the alleged weapon of offence i.e. the broken tube light or its part/remnents have also not been seized by the investigating officer and for that matter, the investigating officer does not even remember about the place of incidence as to how many storeys or floors were there. He did not obtain any document qua the employment of the victim where the incident took place whereas the victim has categorically stated that he was working in the said factory SC No. 479/19 State Vs.. Amit Kumar Page No. 13 of 24 located at A-68, Sector-1, DSIDC, Bawana, Delhi. There were about 5-6 persons stated to be present in the factory at that time but they have not been made witness(s) as apart from the victim, only two persons have been named as witnesses. This shows that the investigation has not been carried out diligently and the only reason seems to be the fact that the false implication of the accused at the behest of the victim as the victim wanted to falsely implicate the accused.
31. Aparently, there are certain flaws in the investigation as the investigating officer should have photographed the scene which would have given further clarity to the case of the prosecution as the broken pieces of tube light seen in the photos, even if not seized, could have filled the lapse of not being seized, but in view of deposition of IO that he did not find any broken tubelight at the spot, nor did he notice any blood stains at the spot.
32. Since the presence of the victim at the spot is not disputed inasmuch as apart from the victim, other two public witnesses have also stated about the presence of the victim at the spot. Incidentally, the accused himself has stated in his statement u/s 313 Cr.PC that he SC No. 479/19 State Vs.. Amit Kumar Page No. 14 of 24 was not present when the injury was caused to the victim meaning thereby that he is aware of the incident, injury and place of incident and at some point of time he was present there too, may be not at the time when injury was caused/sustained by the victim. Thus, it seems that absence of any document of employment of the victim at the factory where the incidence took place no-where affects the case of the prosecution.
33. As regards the number of persons being present and only two have been made witnesses, it is the quality not the quantity of the evidence which matters. The witnesses would have been repetitive. Therefore, in these circumstances, instead of roping in all five or six, two individual persons were enough and as such investigating officer cannot be faulted on this count.
34. So far as the defective investigation is concerned, it has been held in various pronouncements that the defect in the investigation either deliberate or unintentional, should not be construed against the victim as long as there are evidences to support the case of the prosecution.
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35. In the context of defective investigation, reference can be made to the judgments in In regard to defective investigation, Court in Dayal Singh Vs. State of Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 280-83, paras 27-36) "Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5) 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
36. Reference can also be made to Paras Yadav Vs. State of Bihar, (1999) 2 SCC 126, State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali Vs. State of U.P. 2004 VI AD (S.C.) 49 SC No. 479/19 State Vs.. Amit Kumar Page No. 16 of 24 = (2004) 10 SCC 598 and Karnel Singh v. State of M.P., (1995) 5 SCC 518.
37. Certain descripencies have been pointed out by the learned Counsel for the accused in the evidence and the related aspects, for instance presence of witness Sanjay at the time of arrest of the accused is not clear. He does not even remember that the papers he had signed were filled up or blank and so is the case with regard to the PW Mukesh. There are variations in their depositions also. However, the discrepancies and inconsistencies are to be tested on the parameters of relevency and are required to be appreciated against the background of overall facts and circumstances of the case. Discrepancies here and there are bound to be there in as much as human memory has its own limitations. The same incident when narrated by different individuals, their narrations would be varying as per their own perspective and point of view but as long as the substance and soul of the deposition is unaltered and the substance in the testimony remain intact, the evidence is credible. As long as this position is there, discrepancies are immaterial. Reference in this context can be made to the Judgment of Ram Narain Singh Vs. State of Punjab AIR 1975 SC 1727, State of Haryana Vs. Bhagirath AIR 1999 SC 2005, Abdul Sayeed Vs. SC No. 479/19 State Vs.. Amit Kumar Page No. 17 of 24 State of M.P. (2010) 10 SCC 259 and Rakesh Vs. State of M.P. (2011) 9 SCC 698), Tehsildar Singh & Anr. Vs. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. Vs. State, Rep. by Inspector of Police, JT 2012 (9) SC 252 and Lal Bahadur Vs. State (NCT of Delhi), (2013) 4 SCC 557).
38. Various discrepancies/ contradictions/ improvements highlighted by the learned counsel are not material to discredit the testimony of an injured witness. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh Vs. Naresh and Ors. 2011 AD (S.C.) 20 = (2011) 4 SCC 324 as under :
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies SC No. 479/19 State Vs.. Amit Kumar Page No. 18 of 24 therein".
39. There is no answer with the prosecution although the learned Counsel for the accused has not probed this aspect from the Doctor as to why there is no reference of any weapon used which normally rather invariably medical professionals write in medico-legal cases while giving the history as in the instant case, it is confined to only physical assault without there being any reference of any weapon used. Nevertheless injuries were there and self-explanatory.
40. In view of the aforesaid discussions, what emerges on record are that the incidence took place on 29.05.2017 at about 8:40 PM at Factory No. A-68, Sector-1, DSIDC, Bawana, Delhi, involving accused Amit Kumar and victim Shivam @ Shiva who has been examined as PW6 wherein the victim sustained injuries by some sharp edged object which turned out grievous in nature as per the medical opinion. The injuries are grievous or not as per the legal terminology has to be seen. Grievous injuries have been defined u/s 320 Cr.PC and on the face of it, the injuries sustained by the victim Shivam @ Shiva do not fall into the scope and ambit of injuries mentioned in Section 320 Cr.PC. Thus, it can be concluded that the victim has sustain SC No. 479/19 State Vs.. Amit Kumar Page No. 19 of 24 simple injuries.
41. The most vital aspect to the case is as to whether the accused had the intention to kill the victim or not. Intention can be inferred either from the acts or utterances or combination of both acts and utterances or from the overall circumstances taking into account the acts and omissions and occurences at the time of incident and/or before and after the occurence.
42. If it was the intention of the accused to cause death then the act should have been so leaving no scope for any other inference. Had it been so then the deposition should have reflected such circumstances. There should have been repeated attacks especially when the victim had fallen unconscious. The accused would not have fled from the scene rather the accused could have ensured the death as none was there to stop the accused.
43. It has been deposed by the victim that the assault on him was at the instance of one Kirpal, however, there is no reference of Kirpal anywhere in the chargsheet except that it has come in the deposition of the victim for the first time in the Court. It is pertinent to SC No. 479/19 State Vs.. Amit Kumar Page No. 20 of 24 mention that he has admitted in the cross examination that the statement on the basis of which FIR was recorded, was readover to him before the investigating officer obtained his signatures. The MLC reflects that the patient was fit for statement at 11:28 pm. The statement was recorded only thereafter as tehrir was dispatched to the police station at about 12:15 am. In these circumstances, the victim was duty bound to name Kirpal if he, at all, was there involved in the offence one way or the other. The victim was further supposed to tell about the use of weapon in the alleged history given by him to the Doctor. No clear cut answers are there on this aspect, therefore, the complicity of Kirpal stands ruled out and even Section 319 Cr.PC cannot be invoked, and seemingly for this reason it has not been done after deposition of victim as PW6.
44. What emerges on record is that there was a trivial issue which was blown out of proportion and the accused Amit Kumar and the victim Shivam @ Shiva who initially engaged into a verbal altercation and subsequently the heated arguments drew them to a physical duel whereby accused Amit Kumar picked up a fused tubelight which seemingly was lying there at the spot and hit the victim Shiva. The injuries sustained by the victim on his person are SC No. 479/19 State Vs.. Amit Kumar Page No. 21 of 24 sharp in nature which indicates that the tubelight was broken and the broken tubelight was used to cause the injury to the victim. The victim fell down and became unconscious. The assault was not as serious which would have rendered him unconscious but this riddle has its answer in the MLC where the doctor examining him found him under the influence of liquor. The liquor seems to be one of the most prominent reasons as to why this fight has occurred and why the victim sustained injuries on his head. It is not the case of the prosecution and for that matter anyone else, the head of the victim was aimed to cause any injury by accused Amit Kumar. Evidently, Shivam sustained injuries on his head by falling down. It has also come in evidence that the accused then fled the scene when the victim fell unconscious. In such circumstances, it cannot be inferred that the accused had any intention to kill the victim or that he had knowledge or that the circumstances were such which could have resulted into the death of the victim due to assault or the injuries caused by the accused. The victim was conscious when he was taken to the hospital or say when he reached there. His vitals were stable. He was oriented and his blood pressure was also normal. Although the nature of injury has been opined as grievous by the doctor but the injury as described in the MLC Ex. PW4/A nowhere fits into the parameters of grievous injury SC No. 479/19 State Vs.. Amit Kumar Page No. 22 of 24 as provided U/s 320 IPC. In any case, the nature of injury does not matter so far as Section 307 IPC is concerned. The provision for enhanced punishment is there simply on the existence of an injury irrespective of the nature of injury.
45. The case can be described in one line as Musak Punah musko bhava. The case took off as an offence U/s 324 IPC and via 326 IPC, it got converted into Section 307 IPC. However, the foregoing discussion reveals that the most important ingredient U/s 307 IPC is amiss. The circumstances nowhere reflect that the accused had any such intention or knowledge that his act is directed to cause death of the victim or the circumstances were such where death would have occurred. In such circumstances, the case goes out of the realm and ambit of Section 307 IPC. However, the injuries are there caused to the victim and it has also come on record that it was accused Amit Kumar who had caused the injuries. The occurrence, the place and time of occurrence and the complicity of the accused are all brought on record by the prosecution through the testimony of victim and two independent witnesses coupled with the other witnesses examined by the prosecution. Now, the question which has been thrown up is where the act of the accused could be placed.
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46. In the circumstances, where injury through a sharp object is there and the injury being not grievous, therefore, the act of the accused is covered U/s 324 IPC and accordingly, accused Amit Kumar is held guilty and convicted U/s 324 IPC.
Announced in the open Court today i.e. 2nd May 2022 (Vimal Kumar Yadav) Principal District & Sessions Judge (North) Rohini Courts, Delhi SC No. 479/19 State Vs.. Amit Kumar Page No. 24 of 24