Delhi District Court
State vs . Shankar on 31 August, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
SC No. 28/2018
State Vs. Shankar
FIR No. 181/2016
U/s: 307 IPC
PS: Connaught Place
1. Date of Institution : 05.09.2016
2. Date of Commencement
of Final Arguments : 29.08.2018
3. Date of Conclusion of
Final Arguments : 29.08.2018
4. Date of Reserving Order : 29.08.2018
5. Date of Pronouncement : 31.08.2018
6. Whether Acquitted or
Convicted? : Convicted under Section
308 IPC.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Sh. Vaibhav Mishra, Advocate.
JUDGMENT
Accused Shankar stands charged as under:
"That on 08.06.2016 at about 9:15 PM at Varanda near Nandoz restaurant FBlock, Connaught Place, New Delhi within the ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 1 of 21 jurisdiction of PS Connaught Place, you caused the grievous injuries i.e. laceration over the left side of the neck of complainant/injured Mr. Ganesh with a piece of broken glass bottle with such intention or knowledge and under such circumstances that if you by that act would have caused his death then you would be guilty of murder and thereby you had committed an offence punishable under section 307 IPC and within my cognizance......."
Brief Facts of the Case
2. The brief facts of the case are that on 08.06.2016, information was received in PS Connaught Place that a man had been attacked with a blade near Palika Bazaar, Janpath. This information was recorded vide DD No. 39A in PS Connaught Place and was handed over to SI Badri Prasad for investigation. He went to the spot and came to know that the injured had already been removed to Lady Harding Medical College. The Investigating Officer (IO) went to the hospital where he found injured Ganesh admitted in the hospital. Doctor declared him fit for statement and thereon his statement was recorded, in which he stated that he was attacked by accused Shankar with a broken beer bottle, which caused him injuries in his neck. The IO made an endorsement on the statement and got the instant case registered. During investigation, the accused was arrested, exhibits were lifted from the spot, opinion of the doctor was obtained regarding nature of ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 2 of 21 the injury, who opined the same to be grievous, statements of witnesses were recorded, investigation was completed and the instant charge sheet was filed.
3. On completion of the committal proceedings, the case was committed to the Sessions Court by learned Metropolitan Magistrate on 19.09.2016.
4. On 14.12.2016, my learned Predecessor was pleased to frame a charge under Section 307 IPC, as extracted above, which was read over and explained to the accused, to which he pleaded not guilty and claimed trial.
Evidence of the Prosecution
5. In support of its case, the prosecution has examined ten witnesses in all.
6. PW 1 is Dr. Nikunj Jain of Lady Harding Medical College. On 08.06.2016, he had examined injured Ganesh and found him suffering with laceration over left side of his neck. He prepared his MLC, Ex PW 1/A, and referred him to ENT and Surgery Department.
7. PW 2 is Dr. Abhay Singhal of Lady Harding Medical College. He had also examined injured Ganesh on 08.06.2016 and on examination, he found him suffering from a wound over the neck region with 'C' Shape skin flap over left side of the neck exposing the neck muscle. On this, he prepared a report, Ex PW ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 3 of 21 2/A. He also opined the injuries suffered by injured Ganesh to be grievous in nature.
8. PW 3 is SI Rahul of Mobile Crime Team. On getting the message about the incident on 08.06.2016, he reached the spot along with his team and inspected the scene and prepared a report, Ex PW 3/A.
9. PW 4 is HC Lakhan Singh. On 08.06.2016, he was posted as Duty Officer in Police Station Connaught Place from 04:00 AM to 12:00 midnight. On receipt of rukka sent by SI Badri Prasad to Ct. Vikas, he recorded the FIR, Ex PW 4/A. He also made his endorsement, Ex PW 4/B, on the rukka and handed over a computerized copy of the FIR to Ct. Vikas along with a certificate, Ex PW 4/C, under Section 65B of Indian Evidence Act.
10. PW 5 is Ct. Ashok. On 08.06.2016, he was in patrolling in the area of Police Station Cannaught Place along with HC Phool Karan. In the course of patrolling, they also reached the spot near Nandu's Restaurant, F Block and found public persons collected over there. SI Badri Prasad was also present over there. He along with SI Badri Prasad, first went to the hospital and from coming over there, searched for accused Shankar. On the pointing out of Smt. Sunita, they arrested accused Shankar vide arrest memo, PW 5/A, and also conducted his personal search vide memo, Ex PW 5/B. IO SI Badri Prasad also seized blood stained tile, Ex PW 5/1, from the spot vide seizure memo, Ex PW 5/C, and also collected ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 4 of 21 earth control, Ex PW 5/2, vide memo, Ex PW 5/D. IO also collected broken pieces of the glass bottle, Ex PW 5/3, from the spot vide memo, Ex PW 5/E and also collected blood samples from the spot vide memo, Ex PW 5/F.
11. PW 6 is HC Devender, Mobile Crime Team. He had also reached the spot and took six photographs of the spot. The photographs are Ex PW 6/P1 to P6 and the negatives thereof are Ex PW 6/P7 to 12.
12. PW 7 is HC Netrapal. On 09.08.2016, he collected six sealed pullindas from MHC(M) Connaught Place for deposing the same in RFSL, Chankyapuri. He deposited the same in the RFSL and as long as the pullindas remained in his custody, the same remained intact and untampered.
13. PW 8 is Ct. Vikas. On 08.06.2016, he was posted in Police Station Connaught Place and the Duty Officer handed over to him a copy of DD No. 39A for handing over the same to SI Badri Prasad and he accordingly handed over the same to him. Thereafter, he along with SI Badri Prasad went to the hospital, where SI Badri Prasad prepared a rukka for getting a case registered in the police station. He came to the police station and got the instant case registered and returned to the hospital. In the hospital, the doctor handed over to him two sealed pullindas containing blood stained cloths of the injured and blood sample sealed with the hospital seal. He handed over the same to the IO, ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 5 of 21 who seized the same vide memo, Ex PW 8/A.
14. PW 9 is Sh. Ganesh. He deposed that on 08.06.2016, accused Shankar quarreled with him saying that he would see him. In the evening, Shankar came to him at Janpath Road and started manhandling him. Thereafter, accused Shankar took a glass bottle and hit it on his own head on account of which the bottle broke down. Thereafter, with the broken bottle, accused Shankar hit Ganesh in his neck on account of which he sustained injuries and was taken to hospital, where he gave his statement, Ex PW 9/A, to the police. He has identified accused Shankar in the Court as well as his blood stained shirt, Ex P4, and Banian, Ex P5, and also broken glass bottle, Ex PW 5/P3.
15. PW 10 is SI Badri Prasad. He has corroborated the version of the aforesaid witnesses regarding his getting DD Entry 39A and reaching the spot and thereafter to the hospital, recording the statement, Ex PW 9/A, of injured Ganesh and preparing a rukka, Ex PW 10/A, for getting the case registered. He also deposed about arrest of accused Shankar vide arrest memo, Ex PW 5/A, and conducting his personal search memo vide, Ex PW 5/B. He also prepared site plan, Ex PW 10/B. He also deposed about lifting of various articles vide seizure memos, Ex PW 5/C to F. He recorded the statements of witnesses, prepared the challan and thereafter filed the same in the Court.
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 6 of 21 Statement of the Accused and Defence Evidence
16. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the allegations against him as incorrect and claimed innocence. He did not lead any evidence in his defence.
17. I have heard the arguments at the bar in detail and have carefully gone through the record.
Submissions of the Parties
18. It is submitted by learned Addl. PP that accused Shankar hit injured Ganesh in his neck with a broken glass bottle, which caused him grievous injury. It is further submitted that the injury has been opined by the doctor to be grievous one. It is further submitted that the act of hitting a person with a broken glass bottle in neck is clearly indicative of intention to kill, as neck is a very sensitive part of human body. It is repeatedly submitted that the broken glass bottle is a dangerous weapon, if used for causing injuries at sensitive parts of the body. It is further submitted that the pieces of broken bottle were recovered from the spot. It is repeatedly submitted that from the deposition of injured Ganesh and other witnesses, opinion of the doctor and the recoveries effected from the spot, the prosecution has been successful in proving its case of attempt to murder against the accused beyond reasonable doubt. He has invited my attention to ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 7 of 21 relevant parts of evidence.
19. On the other hand, it is submitted by learned defence counsel that the injured is a vagabond and is also a drug addict. It is submitted that the accused is also a vagabond. It is further submitted that it was a sudden fight between the injured and the accused and there was no premeditation on the part of the accused to cause injuries to Ganesh. It is further submitted that the quarrel took place, when the accused demanded jewellery items from injured Ganesh, which his wife had stolen from his possession and in the quarrel both sustained injuries. It is further submitted that even the weapon of offence used in the incident was a piece of broken glass bottle and of a very small size and it cannot be used as a weapon to cause death. It is repeatedly submitted that the accused is innocent and he did not cause any intentional injury to Ganesh to cause his death nor did he had the knowledge that the injury by a small piece of glass may cause death. It is submitted that in the quarrel, the accused also sustained injuries. It is also submitted that it was accused, who had also sustained injuries in his head as well as on his private parts but the police did not register any case on his complaint against Ganesh. It is further submitted that the accused has been falsely implicated in this case. It is further submitted that the prosecution has failed to prove any case against the accused and he may be acquitted. He has also invited my attention to relevant parts of testimony.
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 8 of 21
20. I have carefully considered the submissions made at the bar in the light of material on record.
Section 307 IPC and its Ingredients
21. Section 307 IPC reads as under:
"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 (imprisonment for life), or to such punishment as is hereinbefore mentioned."
22. In an authority reported as Hari Singh Vs. Sukhbir Singh and Others, (1988) SCC 551 , Hon'ble Supreme Court while dealing with ingredients of Section 307 IPC observed in paragraph 7 as under:
"........Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 9 of 21 gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention........"
23. In the instant case, PW 9 Ganesh is the material witness, as it was he who had sustained injuries, when attacked by the accused with a broken glass bottle. Entire case hinges on his evidence. The relevant part of his testimony reads as under:
".......On 08.06.2016, in the noon time, some quarrel as well as manhandling happened between me and accused Shankar, who is present in court today (correctly identified). He told me that he would see me. In the evening, I was selling toys in Connaught Place, Janpath Road. Accused Shankar came to me. At that time, he was drunk. He started manhandling with me. Meanwhile, Shankar took a green colour glass bottle of Sprite and hit the same on his head due to which the bottle was broken. With the broken bottle, he hit me on my neck on the front side on account of which I sustained injuries and fell down. Public persons gathered over there. Public persons covered my neck with a cloth and took me to Lady Harding Hospital, where I was medically treated. Police reached there and I told the facts to the police. Police recorded my statement, which is Ex.PW9/A ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 10 of 21 and bears my thumb impression at point A. The clothes which were worn by me at that time, soaked with blood. I can identify my said clothes, if shown to me. My wife Sunita used to live with me. However, later on, she left me and started living with Shankar. However, Shankar started getting drunk and started harassing her. On this, she returned to me. At the time of the incident, she was present with me. She saved me from the accused and also took me to the hospital......."
24. In this deposition, Ganesh has categorically deposed that the accused started manhandling him, took a sprite bottle, hit it on his head on account of which the bottle broke down and with a broken piece of bottle, hit him on his neck. There is no evidence that the accused had come armed with any weapon or a bottle. As per statement of Ganesh, Ex PW 9/A, on which FIR was registered, the accused had picked up a bottle lying on the place of incident, broke it and with a piece of glass hit the injured. These factors indicate that he had no intention to cause any fatal injury to the injured. The nature of the weapon used and manner of its use does not suggest that the accused had intention or knowledge of the crime required for an offence punishable under Section 307 IPC.
25. PW 2 Dr. Abhay Singhal has characterized the injuries suffered by injured Ganesh to be grievous one. He found a avulsed wound over the neck region on the left side, exposing the neck muscle. This deposition apparently shows that the injury was at ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 11 of 21 the sensitive part of the body and was grievous in nature but it was a single injury.
26. Furthermore, as per the deposition of PW 9, it appears that the incident took place due to the reason that wife of Ganesh had left Shankar with whom she was residing. The accused has also stated in his statement under Section 313 CrPC that he was called to the spot by Sunita wife of Ganesh to pacify grievance of Ganesh as to why she was residing with him. Thus, the motive of the quarrel appears to be fight over the stay of Sunita, wife of Ganesh, with accused Shankar.
27. As per IO/PW 10, the incident took place at about 09:30 PM. PW 9 Ganesh also stated that before the incident, there was manhandling between them and during this manhandling, accused took a bottle, broke it by hitting on his own head and thereafter with a piece of bottle, hit him on the neck, on account o which he sustained injuries. From this deposition, it is clear that the incident took place in the night all of a sudden without any pre meditation and the motive of the fight was stay of Sunita with the accused. From the evidence, it is clear that accused had no intention to cause death of Ganesh but he can be attributed only the knowledge that hitting a person in neck with a piece of glass bottle may cause his death. There would have been further attack by the accused on the injured, if his intention was to cause murder. The incident took place all of a sudden in the course of ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 12 of 21 manhandling of the injured by the accused. Thus, the ingredients of the offence under Section 307 IPC, as mentioned above, are not made out.
28. However, the incident took place in a sudden fight without any premeditation and the accused hit the injured with a piece of broken glass bottle in neck, he must be attributed the knowledge that his act was likely to cause death. The probability of death or knowledge of death is to be assessed by the nature of the weapon used, amount of injury, manner of attack etc. In the instant case, the accused caused only single injury. Thus, he can safely be attributed the knowledge that his single act of hitting the injured in the neck with a piece of broken glass bottle may cause death. This means that there was least probability of death. The evidence on record shows commission of an offence under Section 308 IPC, which reads as under:
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 13 of 21
29. In an authority reported as Tukaram Gundu Naik Vs. State of Maharashtra, (1994) 1 SCC 465, where the injured was attacked with knife when it was dark and in a sudden scuffle and the injured suffered four incised injuries, Hon'ble Supreme Court converted the case from 307 IPC to 308 IPC and the relevant parts of the judgment read as under:
"5. Shri Ram Jethmalani, learned counsel appearing for the appellant contended that the conviction under Section 307 IPC is not warranted. According to him, the intention to commit murder is not made out and the surrounding circumstances namely that it was dark and there was a scuffle and prior to that appellant was also abused by PW 8, the victim and under those circumstances, even if the appellant is said to have inflicted some blows, the offence committed by him would be one punishable under Section 324 IPC.
7.......In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under Section 308 IPC. Section 308 lays down that such an offence is punishable with imprisonment which may extend to three years or with fine or with both and if hurt is caused, the assailant can be punished with imprisonment of either description which may extend to seven years or with fine or with both.
8. Having given our earnest consideration and having regard to the age of the appellant ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 14 of 21 and the suddenness in which the whole occurrence took place during the scuffle, we are of the view that the offence is one punishable under Section 308 IPC........"
(All underlinings by me for supplying emphasis).
30. Nature of weapon of offence, number and nature of injury, part of the body where injury was caused, that is, front part of neck, motive, darkness at the time of incident, sudden quarrel etc. show that the accused can only be attributed the knowledge of inflicting such injury as was likely to cause death. Consequently, the prosecution has failed to prove its case under Section 307 IPC but an offence under Section 308 stands proved.
31. Accordingly, accused is convicted under Section 308 IPC. Let he be heard on the point of sentence.
Announced in open Court (O. P. Saini)
today on 31.08.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 15 of 21 IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL. JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI SC No. 28/2018 State Vs. Shankar FIR No. 181/2016 U/s: 307 IPC PS: Connaught Place 31.08.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Sh. Vaibhav Mishra, Advocate.
ORDER ON SENTENCE Vide my separate judgment dated today, Shankar has been convicted under Section 308 IPC on the allegation that on 08.06.2016, he caused grievous injuries to Ganesh in his neck with a broken glass bottle and thus attempted to commit culpable homicide not amounting to murder.
2. I have heard the arguments at the bar and have carefully gone through the file.
3. It is submitted by learned Addl. PP that the convict had caused grievous injuries to injured Ganesh with a broken glass bottle in his neck and this shows that he intended to cause such injury to Ganesh as was likely to cause his death. It is further submitted that considering the act of the accused, severe ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 16 of 21 punishment may be awarded to him.
4. On the other hand, it is submitted by learned defence counsel for the convict that the convict belongs to a poor family and that he has no permanent residence and is a vagabond. It is further submitted that the convict has no family support and that is why he got involved in such a case. It is further submitted that the incident took place in a sudden fight without any premeditation. It is further submitted that the convict has already been in custody for more than two years in the instant case. It is further submitted that in the incident he had also sustained injuries. It is submitted that considering the poor background of the convict and the fact that he remained in custody for more than two years, a lenient view may kindly be taken and he may be sentenced to the imprisonment already undergone by him.
5. In an authority reported as B. G. Goswami Vs. Delhi Administration, (1974) 3 SCC 85, while dealing with the question of sentence, Hon'ble Supreme Court observed in paragraph 10 as under:
"........Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 17 of 21 which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal........"
Similarly, in an another authority reported as State of U. P. Vs Sattan @ Satyendra & Ors, 2009 III AD (SC) 492, Hon'ble Supreme Court, while dealing with the question of punishment, observed in para 14 as under:
"Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 18 of 21 proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But, in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences".
(All underlinings by me for supplying emphasis).
6. In the instant case, the convict is a vagabond and has no permanent place to stay. He stays on the pavement near Hanuman Mandir, Connaught Place, New Delhi. He has already been in custody for more than two years, that is, from 08.06.2016. In the incident, he had also sustained injury including injury on his private part, as is clear from his MLC on record. The motive was obviously his desertion by Smt. Sunita, wife of Ganesh. Considering these facts and the law quoted above, I am inclined to take extremely lenient view and sentence him to the imprisonment for the period already undergone by him.
7. If the convict is not required in any other case, he be set at liberty at once.
8. A copy of the judgment and order on sentence be given to the convict free of cost immediately.
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 19 of 21
9. Case property is forfeited to the State to be destroyed after the time of appeal is over.
10. Since the convict is a vagabond and may not find a surety for him, he is directed to furnish a personal bond in the sum of Rs.10,000/ to appear before the Hon'ble Appellate Court, as and when he receives a notice of appeal, as per the provisions of Section 437A CrPC.
11. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 31.08.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 20 of 21 State Vs. Shankar FIR No. 181/2016 U/s: 307 IPC PS: Connaught Place 31.08.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Accused in JC with Sh. Vaibhav Mishra, Advocate. Heard. Vide my separate judgment dated today, Shankar stands convicted under Section 308 IPC.
Vide my separate order on sentence dated today, he is sentenced to the imprisonment under Section 308 IPC for the period already undergone by him.
Personal bond under Section 437A CrPC furnished and accepted. File be consigned to Record Room.
(O. P. Saini) Addl. Sessions Judge/ Spl. Judge (CBI04) New Delhi/31.08.2018 ___________________________________________________________________________ State Vs. Shankar FIR No. 181/2016, PS: Connaught Place Page 21 of 21