Delhi District Court
State vs . 1. Wasim @ Passa S/O Yamin @ on 23 July, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0043642010
Sessions Case No. 50/2010
Assigned to Sessions. 20.07.2010
Arguments heard on 04.07.2012
Date of judgment 19.07.2012
FIR No. 38/2009
State Vs. 1. Wasim @ Passa s/o Yamin @
Chhotey r/o H. No.10/21, Makki
Sarai, P.S. Shahdara, Delhi.
2. Harish Pathania, s/o Lal Dass
Pathania, r/o H. No.4/174, Old Tejab
Mill, Bholanath Nagar, Shahdara,
Delhi.
3. Sagar Sharma @ Vishwa Kirti
Sharma s/o Surender Sharma r/o H.
No.C70/2, Old Tejab Mill, Bhola
Nath Nagar, Shahdara, Delhi.
Police Station Shastri Park (Metro)
Under Section 307/34 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Shastri Park (Metro) had filed a challan vide FIR No. 38/2009 dated 30.11.2009 u/s 324/34 IPC for the prosecution of accused persons State Vs. Wasim @ Passa and others SC No.50/2010 1/25 namely Wasim @ Passa, Harish Pathania and Sagar Sharma @ Vishwa Kirti Sharma in the court of Ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial.
2. In brief, facts of the case are that on 29.11.2009 at about 7:50 p.m. a DD No.15B was registered at police station Shastri Park Metro Station regarding stabbing to one person in a quarrel in auto parking Shahdara Metro Station. and same DD was assigned to ASI Braham Singh through phone call. On receipt of said DD, ASI Braham Singh along with Ct. Ravinder reached at the spot i.e. auto parking of Shahdara metro station where it came into notice that injured had been removed to GTB Hospital by PCR Officials. Thereafter, SI Braham Singh had inspected the TSR which was parked inside the parking of Shahdara metro Station and he notice blood lying inside that TSR bearing registration No. DL1RK2447. Thereafter, SI Braham Singh along with Ct. Ravinder reached in GTB Hospital and collected MLC of injured Firoz Ex.PW8/A wherein injured Firoz was declared fit for making statement. ASI Braham Singh had recorded statement of injured Firoz Ex.PW1/A, upon which endorsement Ex.PW5/A was made to get the FIR registered at police station through Ct. Ravinder. Accordingly, FIR No. 38/2009 Ex.PW5/B u/s 324/34 IPC was registered and during the course of investigation, accused persons namely Wasim @ Passa, Harish Pathania and Sagar Sharma @ Vishwa Kirti Sharma were arrested on pointing out of injured and recovery had State Vs. Wasim @ Passa and others SC No.50/2010 2/25 also been effected at the instance of accused persons in the presence of injured. CHARGE:
3. On the basis of material available on record, Sh. Gurdeep Singh, ld. ASJ vide order dated 12.08.2010 framed a charge against accused persons namely Wasim @ Passa, Harish Pathania and Sagar Sharma @ Vishwa Kirti Sharma for the offence punishable u/s 307/34 IPC to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 11 witnesses namely PW1 Firoz (injured/complainant), PW2 Ct. Ravinder Singh, PW3 Ct. Sunil Kumar, PW4 Ct. Umender, PW5 SI Braham Singh, PW6 HC Vijay Pal, PW7 Retired Inspector Jagdish Prasad, PW8 Dr. Sita Ram, PW9 HC Dilbagh Singh, PW10 Dr. Rajendra Kumar and PW11 Dr. Animesh Basak.
5. PW1 Firoz is a material witness being complainant/injured. This witness has deposed that in the year 2009 he was residing at Makki Sarai, Near Shahdara Metro Station, Delhi and he used to sell fruits on his rehri (thela) near Shahdara Metro Station towards G.T. Road, Delhi. He was sitting in the parking of Shahdara Metro station, he noticed accused Wasim @ Passa present in the court was coming towards parking who was known to him being the resident of same locality, he called him and demanded Rs.150/ against selling of fruits to him for Rs.100/ and State Vs. Wasim @ Passa and others SC No.50/2010 3/25 he had borrowed Rs.50/ from him three months prior to the incident to which accused Wasim @ Passa refused and abused him and in the meantime accused harish Pathania and Sagar Sharma had also come there and he had caught hold by accused Harish Pathiana and Sagar Sharma and accused Wasim @ Passa took out one sharp edged object and caused him injuries upon his face, left hand and backside of left thigh with intention to kill him. He raised alarm. On receiving stab injuries some public persons came there and all the accused persons had ran away from the spot. Some public persons had made a call PCR at 100 number, and police officials came there and took him to GTB Hospital where his statement Ex.PW1/A was recorded which bears his thumb impression at point A.
6. In his cross examination by ld. defence counsel, this witness denied that his employer Firoz @ Pehalwan and himself are habitual of making false complaints after concocting a false story. Statement of witness has been confronted on some points but on fact of identification of accused this witness had correctly identified all the accused persons in the court also.
7. PW2 Ct. Ravinder Singh. This witness had taken DD No.15B Ex.PW2/A assigned to ASI Braham Singh to Shahdara Metro Station and handed over the same to him. Thereafter, this witness had taken rukka to police station prepared by ASI Braham Singh to police station on which FIR was registered.
8. In his presence IO had inspected place of occurrence where blood was lying on the ground as well as inside of one TSR in the auto parking where incident had taken State Vs. Wasim @ Passa and others SC No.50/2010 4/25 place. I.O. had lifted blood from the spot as well as from TSR and seized the same vide seizure memo Ex.PW2/A.
9. In his presence IO had formally arrested accused Wasim @ Passa with the permission of L.d MM vide arrest memo Ex.PW2/B and his personal search was conducted vide Ex.PW2/C. During his interrogation accused Wasim @ Passa had made his disclosure statement Ex.PW2/D which bears signature of this witness at point A. In pursuance of his disclosure statements, accused Wasim @ Passa had got recovered one knife having wooden handle with the length of 10 cm from the bushes, nearby metro station. Accused Wasim had disclosed the name of accused Harish and Sagar Sharma in his presence on 08.02.2010 accused Sagar Sharma was formally taken into custody being Juvenile before JJB. IO had recorded disclosure statement of accused Sagar Sharma vide Ex.PW2/I.
10.In his cross examination by ld. defence counsel, this witness had admitted that he had read over his statement from police file to refresh his memory before deposition and he had reached at the spot at about 8:15 p.m. and from TSR No.DL1RK2447 I.O. had lifted blood. This witness had denied to the suggestion that he had not disclosed the number of aforesaid TSR in his statement recorded by I.O. as same was not available at that time. This witness had accompanied IO and reached at GTB Hospital where injured was found admitted in the emergency. This witness had further stated that I.O. had recorded his statement in his presence. This witness had denied to the suggestion that accused Wasim @ Passa had not made any disclosure statement before police on 07.12.2009. This witness along State Vs. Wasim @ Passa and others SC No.50/2010 5/25 with accused Wasim @ Passa reached at the place of recovery at 4:00 p.m.
11.PW3 Ct. Sunil Kumar. This witness had taken three sealed parcels along with sample seal, forwarding letter vide RC No.10/21/2009 on 22.12.2009 and deposited the same at FSL Rohini for analysis.
12.PW4 Ct. Umender. This is the witness of arrest of accused Harish Pathania. This witness has proved arrest memo of accused Harish Pathania vide Ex.PW4/A. This witness has also proved disclosure statement of accused Harish Pathania vide Ex.PW4/B. This witness has deposed that accused Harish Pathania had refused to sign on his disclosure statement.
13.PW5 SI Braham Singh. This witness is a material witness being I.O. This witness has deposed that on 29.11.2009, he was posted at P.S. Shastri Park (Metro), Delhi. On that day, at about 07:50pm, copy of DD No.15B was delivered to him by Ct. Ravinder when he was busy in the area of P.S. for some other DD. It came into his notice from DD No.15B that there is a quarrel in the auto parking at Shahdara Metro Station, Delhi and one man had sustained stab injury. This witness along with Ct. Ravinder reached at aforesaid parking, where, it came to know that injured had already been removed to GTB Hospital by PCR police officials. This witness had inspected one TSR parked inside the aforesaid parking. This witness had also noticed blood lying inside the TSR bearing registration number DL1RK 2447. This witness along with Ct. Ravinder reached at GTB Hospital and collected MLC of injured Mohd. Firoz, Mark X, who had been declared fit to make State Vs. Wasim @ Passa and others SC No.50/2010 6/25 statement by the doctor. This witness had recorded his statement Ex.PW1/A, which bears thumb impression of injured Firoz at point A and this witness had attested the same at point X. Injured had named three persons in his statement, namely, Wasim @ Passa, Harish Pathania and Sagar Sharma @ Vishwakirti Sharma. This witness had made endorsement for registration of FIR, Ex.PW5/A and got the FIR Ex.PW5/B registered through Ct. Ravinder.
14.During the course of investigation, this witness had taken photographs of TSR, through his mobile, in which injured had been stabbed. Photographs of TSR are Mark Y1 to Y4, which are depicting the scene of blood in TSR. This witness had lifted blood from the TSR with the help of cotton and put the same, in glass bottle, which was converted into a cloth seal parcel and sealed with the seal of BS and seized vide seizure memo Ex.PW2/A.
15.During the course of investigation, this witness had received one sealed parcel containing clothes of injured having blood stains along with sample seal from the duty constable before leaving the hospital to spot which were seized vide seizure memo Ex.PW5/C.
16.During the course of investigation, this witness along with injured came at the spot, where, he inspected the place of occurrence at his instance and prepared site plan already Ex.PW1/B which bears thumb impression of injured Firoz at point A. This witness had recorded his supplementary statement Ex.PW5/D. State Vs. Wasim @ Passa and others SC No.50/2010 7/25
17.This witness has deposed that he had also presented the case file before SHO as well as ACP at P.S. and they had perused the same and directed him to add the Section 307/34 IPC in this case in place of earlier Section 324/34 IPC. They directed him to further investigate this case.
18.During the course of investigation, on 07.12.2009, at about 02:30pm, this witness had arrested accused Wasim @ Passa, present in court (correctly identified), with the permission of ld. MM, where accused Wasim @ Passa had moved application for surrender. This witness had prepared arrest memo Ex.PW2/B and personal search memo Ex.PW2/B of accused Wasim @ Passa. During the course of interrogation, whatsoever, accused Wasim @ Passa told him same was recorded in his disclosure statement Ex.PW2/D. This witness had prepared pointing out memo Ex.PW2/E of the place of occurrence at the instance of accused Wasim @ Passa. Thereafter, accused Wasim @ Passa led police party at a place between Indian Railway track and Delhi Metro track behind Shahdara metro station where accused Wasim @ Passa picked up one knife from the bushes at aforesaid place and produced the same before them saying that it has been used to cause injury to injured. This witness had taken into possession the same and converted the same into a cloth parcel which was sealed with the seal of BS after preparing its sketch and taking its measurements. This witness had seized sealed parcel of knife vide seizure memo Ex.PW2/G. The length of blade of knife was about 7.5cms and its width about 2cms. Length of wooden handle of knife was about 10cms. This witness had also prepared site plan of place of recovery of knife, Ex.PW5/E. State Vs. Wasim @ Passa and others SC No.50/2010 8/25
19.During the course of investigation, this witness had prepared separate chargesheet against delinquent Sagar Sharma, present in court (correctly identified), later on he was declared major. This witness got him shifted to Tihar Jail on 08.03.2010.
20.During the course of investigation, accused Harish Pathania had been arrested by Inspector Jagdish Prasad on 11.12.2009 when he was on leave. Personal search memo of accused Harish Pathania is Ex.PW5/F which bears signature of aforesaid inspector at point A. This witness had identified his signature in official capacity.
21.This witness had recorded statements of PWs, namely, HC Vijay Pal, Sujeet, Ct. Vijay Pal and Ct. Ravinder time to time. This witness had sought JC remand of all three accused persons time to time. This witness had correctly identified all three accused persons present in the court.
22.During investigation, this witness had deposited MLC of injured to get the nature of injury, which was opined by the doctor as grievous. This witness had also collected Xray report of injured Mark Z from GTB Hospital and placed the same on file.
23.During the course of investigation, on 22.12.2009, this witness had sent sealed parcels of this case containing exhibits along with sample seal, forwarding letter etc. to FSL for analysis through Ct. Sunil and later on expert opinions were collected, which are Ex.PW5/G and Ex.PW5/H. Forwarding letter of aforesaid reports is Ex.PW5/I. This witness had submitted aforesaid reports through State Vs. Wasim @ Passa and others SC No.50/2010 9/25 supplementary chargesheet Ex.PW5/J.
24.This witness had correctly identified the knife which was got recovered by accused Wasim @ Passa.
25.In his cross examination by ld. defence counsel, this witness has deposed that he had not seized TSR as it was not necessary. Neither owner of TSR Naresh Kumar was examined nor he was cited as a witness.
26.PW6 HC Vijay Pal. This witness had deposed that on 29.11.2009, he was posted in PCR and was on duty at their base i.e. Shyam Lal College, G.T. Road, Shahdara, Delhi. On that day, at about 07:30pm, he was present along with other police officials at their PCR vehicle. He received information from control room that there is a quarrel at the parking of Shahdara Metro Station, Delhi. Thereafter, he received information that one boy had been stabbed there. This witness had reached at aforesaid parking by PCR van and he found injured in a TSR which was stationed inside the parking of aforesaid metro station. This witness had noticed blood oozing out from the injury of injured and some blood lying inside the TSR. This witness had lifted injured and got him admitted in GTB Hospital for medical treatment. Name of injured came into his notice as Mohd. Firoz in GTB Hospital.
27.PW7 Retired Inspector Jagdish Prasad. This witness on 11.12.2009 was posted as a SHO at P.S. Shastri Park (Metro), Delhi. On that day, ASI Braham Singh, I.O. of present case, was on leave, hence, this witness along with Ct. Omender Singh State Vs. Wasim @ Passa and others SC No.50/2010 10/25 reached in the court of ld. MM of aforesaid P.S. in Karkardooma Courts, Delhi, where accused Harish Pathania had moved a surrender application. This witness had formally arrested accused Harish Pathania, present in court (correctly identified), with the permission of ld. MM vide arrest memo Ex.PW4/A and Personal Search Memo Ex.PW5/F. This witness has recorded disclosure statement of accused Harish Pathania vide Ex.PW4/B. Accused Harish Pathania had refused to put his signature on his disclosure statement. This witness had moved an application for seeking his one day Police Custody but same was declined by the ld. MM.
28.In his cross examination by ld. defence counsel, this witness denied that no disclosure statement was ever made by accused Harish Pathania or that same had been fabricated by him.
29.PW8 Dr. Sita Ram, S.R. Neuro Surgery, GTB Hospital, Delhi. This witness has proved MLC of injured Firoz Ex.PW8/A on behalf of Dr. Rajan Kumar upon which nature of injury was opined as simple in nature.
30.PW9 HC Dilbagh Singh. This witness has deposed that on 29.11.2009 he was posted as MHC(M) at Police Station Shastri Park Metro Station, Delhi and on that day he was directed to look after additional duty as D.O. This witness has proved DD No.15B vide Ex.PW2/A.
31.This witness has deposed that at about 12:05 a.m. on 30.11.2009 rukka Ex.PW5/A State Vs. Wasim @ Passa and others SC No.50/2010 11/25 was presented before him through Ct. Ravinder for registration of FIR, upon which he had got recorded FIR of present case. This witness has proved the copy of FIR vide Ex.PW5/B.
32.This witness has further deposed that on 30.11.2009 ASI Braham Singh had deposited two sealed parcels, one sample seal along with two copies of seizure memo in malkhana and he had taken into possession the same being MHC(M) and made entry at Serial No.136 and 137 in register No.19 and proved copy of the aforesaid entry vide Ex.PW9/A. This witness has further deposed that on 21.12.2009 aforesaid sealed parcels, sample seal and forwarding letter etc. were sent to FSL, Rohini for analysis through Ct. Sunil Kumar vide RC No.10/21/2009 and later on expert opinions in sealed envelope along with concerned sealed parcels were received at their police station.
33.In his cross examination by ld. defence counsel, this witness has deposed that he had filled up all the columns of FIR as per rukka and admits that name of accused persons are not mentioned against column No.7 of FIR.
34.PW10 Dr. Rajendra Kumar, Assistant Director (Biology), FSL, Rohini, Delhi. This witness has proved his reports dated 26.04.2010 vide Ex.PW5/G and PW5/H.
35.PW11 Dr. Animesh Basak, Senior Resident, Surgery, GTB Hospital, Delhi. This witness has proved his endorsement Ex.PW11/A regarding nature of injury on the MLC Ex.PW8/A of patient Mohd. Firoz and after going through the contents of State Vs. Wasim @ Passa and others SC No.50/2010 12/25 MLC and and patient treatment sheet/surgical record, he opined nature of injury as grievous.
36.In his cross examination by ld. defence counsel, this witness had denied that he had opined nature of injury as grievous at the request of police officials who had brought the patient.
STATEMENT OF ACCUSED U/S 313 CR. P.C.:
37.After prosecution witness. statement of all the accused persons u/s 313 Cr. P.C. were recorded wherein accused persons denied all circumstances, allegations and evidence put to them and they claimed to be innocent and have been implicated falsely.
38.Accused Wasim @ Passa admits that he is a fruit seller by profession and he used to stall his rehri near the rehris of employer of injured PW Firoz and they also used to sell fruits on rehri near Shahdara Metro Station. Firoz and his employer used to put undue pressure upon him to remove his rehri for which he was unable to do as it was his only source of earning and when he refused them employer of Firoz insisted him to pay Rs.500/ per day to him which was also not in his capacity. As employer of Firoz was having more rehris, hence, he was having good relationship with police officials as he used to pay handsome monthly amount to them against the installation of his rehris and when police officials could not succeed in getting amount from him they implicated in this present false case after concocting the false story and he had not stabbed Firoz as alleged. State Vs. Wasim @ Passa and others SC No.50/2010 13/25
39.Accused Sagar Sharma has deposed that he is brotherinlaw of Harish Pathania and he is a close friend of Rashid s/o Mohd. Haneef, r/o Makki Sarai, Shahdara, Delhi. Injured Firoz and his employer used to put undue pressure upon Rashid, who also stalls fruitrehri near Shahdara Metro Station. Employer of Firoz, whose name is also Firoz @ Pehlwan and his son Gufran, who are the residents of same locality, have been involved in many cases and have their criminal back ground and due to their record they have nexus with the police and in connivance with police officials Harish Pathania, his brotherinlaw along with Rashid and his family members have been implicated in case FIR No.138/2009, police station Shahdara, u/s 307 IPC, titled as "State Vs. Rashid and others". He further deposed that Firoz @ Pehlwan and his son are professional litigants and extort money against their compromise. All the accused persons had preferred to lead D.E. But they could not produce DW, hence, D.E. was closed on 24.05.2012.
40.Thereafter, case was fixed for arguments.
ARGUMENTS:
41.Ld. APP for the State has argued that there are charges against the accused persons namely Wasim @ Passa, Harish Pathania and Sagar Sharma for the offence u/s 307/34 IPC.
42.As per prosecution story accused Harish Pathania and Sagar Sharma had caught hold the injured Firoz and their associate accused Wasim @ Passa had caused stab State Vs. Wasim @ Passa and others SC No.50/2010 14/25 injury on the person of injured Firoz with intention to kill. Section 307 IPC is attracted as injury has been caused by some sharp object on the demanding Rs.150/ from accused and injured is known to accused persons and had got recovered the weapon from the accused on their instance.
43.Ld. APP for the State further argued that PW1 Firoz - injured had correctly identified the accused persons.
44.PW1 Firoz had received sharp stab injuries on his left side of face, left hand and backside of left thigh and doctor has also opined nature of injury as grievous on the MLC of injured Firoz.
45.PW8 Dr. Sita Ram and PW11 Dr. Animesh Basak are medical witnesses. They had proved the MLC of injured. Hence, offences u/s 307/34 IPC are proved. All accused are connected with 34 IPC. Hence, Ld. APP for the State has prayed to convict the accused persons under the section for which they have been charged.
46.On the other hand Ld. counsel for accused persons has argued that no public witnesses to the incident and accused persons except Wasim @ Passa had been implicated in the present case being his friend.
47.Ld. counsel for accused persons has argued that PW1 Injured Firoz has deposed that in the year 2009 he was residing at Makki Sarai, Near Shahdara Metro Station, State Vs. Wasim @ Passa and others SC No.50/2010 15/25 Delhi and he used to sell fruits on his rehri (thela) near Shahdara Metro Station towards G.T. Road, Delhi. He was sitting in the parking of Shahdara Metro station, he noticed accused Wasim @ Passa present in the court was coming towards parking who was known to him being the resident of same locality, he called him and demanded Rs.150/ against selling of fruits to him for Rs.100/ and he had borrowed Rs.50/ from him three months prior to the incident to which accused Wasim @ Passa refused and abused him and in the meantime accused Harish Pathania and Sagar Sharma had also come there and he had caught hold by accused Harish Pathania and Sagar Sharma and accused Wasim @ Passa took out one sharp edged object and caused him injuries upon his face, left hand and backside of left thigh with intention to kill him. He raised alarm. On receiving stab injuries some public persons came there and all the accused persons had ran away from the spot.
48.Ld. counsel for accused persons has further argued that injured in his examination in chief had stated that he was sitting in parking whereas in statement to police he states that he was sitting in a TSR in the parking.
49.Ld. counsel for accused persons further argued that I.O. had come to know that the injured has been discharged from the hospital and left to his house but house of injured is footpath. Nothing could come on record that condition of injured was serious.
50.Ld. counsel for accused persons further argued that no public witnesses had been State Vs. Wasim @ Passa and others SC No.50/2010 16/25 made witness of the railway track Shahdara at the time of recovery of knife at the instance of accused Wasim @ Passa.
51.Ld. counsel for accused persons further argued that investigation is not proper.
52.Ld. counsel for accused persons further argued that supervisor or attendant of Metro parking Shahdara has not been examined where incident had taken place.
53.Ld. counsel for accused persons has filed copy of citations today itself, relying upon them, which are as follows:
a. Abdul Wahid Vs. State of U.P., 1980 Cri. L.J. NOC 77 (ALL.), b. Nanak Chand Vs. State of Delhi, 1991 JCC 1, c. Munni Lal Vs. The State, 1995 JCC 110, d. Siri Ram Sharma Vs. The State, 1995 JCC 120, e. Shyam Sunder @ Raj Kumar Vs. State (Delhi Admn.), 1996 JCC 35, f. Surinder Kumar Vs. State, 1997 JCC 45, g. Sita Ram Vs. State (Delhi Admn.), 1997 JCC 637.
54.On these grounds, ld. counsel for accused persons prayed for acquittal of all the accused persons from the charges.
PERUSAL OF RECORD:
55.Argument heard. Record perused. On perusal of record it is revealed that on State Vs. Wasim @ Passa and others SC No.50/2010 17/25 29.11.2009 at about 07:50 p.m. a DD No.15B was registered at police station Shastri Park Metro Station regarding stabbing to one person in a quarrel in auto parking Shahdara Metro Station. and same DD was assigned to ASI Braham Singh through phone call. On receipt of said DD, ASI Braham Singh along with Ct. Ravinder reached at the spot i.e. auto parking of Shahdara metro station where it came into notice that injured had been removed to GTB Hospital by PCR Officials. Thereafter, SI Braham Singh had inspected the TSR which was parked inside the parking of Shahdara metro Station and he notice blood lying inside that TSR bearing registration No. DL1RK2447. Thereafter, SI Braham Singh along with Ct. Ravinder reached in GTB Hospital and collected MLC of injured Firoz Ex.PW8/A wherein injured Firoz was declared fit for making statement. ASI Braham Singh had recorded statement of injured Firoz Ex.PW1/A, upon which endorsement Ex.PW5/A was made to get the FIR registered at police station through Ct. Ravinder. Accordingly, FIR No. 38/2009 Ex.PW5/B u/s 324/34 IPC was registered and during the course of investigation, accused persons namely Wasim @ Passa, Harish Pathania and Sagar Sharma @ Vishwa Kirti Sharma were arrested on pointing out of injured and recovery had also been effected at the instance of accused persons in the presence of injured.
56.On further perusal of record it is revealed that PW11 Dr. Animesh Basak, SR Surgery, GTB Hospital, Delhi, has proved endorsement regarding nature of injury at encircled portion Ex.PW11/A on MLC of injured Firoz and opined nature of injury as grievous on the MLC of patient/injured Firoz. State Vs. Wasim @ Passa and others SC No.50/2010 18/25
57.On perusal of record, it is further revealed that PW1 injured Firoz who had sustained injuries had identified all the accused persons as culprits.
58.On perusal of record, it is revealed that weapon of offence i.e. knife has been got recovered by the accused Wasim @ Passa.
59.Before reaching at any conclusion, relevant sections i.e. 307/323/34 IPC are being reproduced which is as under : Section 307 IPC.
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 imprisonment for life, or to such punishment as is hereinbefore mentioned.
Ingredients of offence. The essential ingredients of the offence under sec. 307 are as follows :
(1) The accused did some act.
(2) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Section 323 IPC : "Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
60.It is the fundamental principle of criminal law that in case of conviction of accused persons the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case State Vs. Wasim @ Passa and others SC No.50/2010 19/25 titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
"'Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
61.Now the sole question arises as to whether the injuries inflicted by the accused persons were caused with the intention or knowledge to attempt to commit culpable homicide.
62.Theme of section 307 IPC is that injury must have been caused with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder.
63.Since the present case was registered on the complaint of PW1 Firoz on complaint of quarrel. PW1 Firoz has supported the case of prosecution as he had correctly State Vs. Wasim @ Passa and others SC No.50/2010 20/25 identified the accused persons.
64.From the MLC, it is revealed that injury on thigh near the private part of injured/complainant which is a very much sensitive part and by excess bleeding death could have been caused. The injury caused by accused persons is corroborated by MLC of injured/complainant wherein nature of injury has been opined as grievous and further complainant is the witness of arrest and recovery of weapon at the instance of accused Wasim @ Passa.
65.Since from the testimony of complainant and other evidence available on record, it is established that identity of accused persons is not disputed as accused persons and complainant are known to each other previously and present incident had taken place on demand of Rs.150/ by complainant from accused persons. It is further not disputed that weapon of offence has also been recovered at the instance of accused Wasim @ Passa in the presence of complainant. From the testimony of complainant, it is also also revealed that accused Sagar Sharma and Harish Pathania had caught hold him and given him beatings. From the analysis of evidence on record, it is proved that accused Wasim @ Passa had caused injury to the complainant with sharp edged weapon and accused Harish Pathania and Sagar Sharma had caught hold him and given him beatings.
66.From the perusal of testimonies of PWs, MLC of injured and taking into considerations arguments of counsel for accused and ld. APP for the State, and theme of section 307 IPC, this court comes to the conclusion that to justify a State Vs. Wasim @ Passa and others SC No.50/2010 21/25 conviction under Section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deducted 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 an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault to be sufficient under ordinary circumstances to cause the death of the person assaulted. Court has to take into consideration the act, irrespective of its result, was done with knowledge or intention and under circumstances mentioned in this section. For purpose of section 307 IPC it is sufficient, if there is present an intent coupled with some overt act in execution thereof.
67.Hon'ble Supreme Court in case titled as "State of Madhya Pradesh Vs. Saleem @ Chamaru and another, Criminal Appeal No.822 of 2005, date of decision 13.07.2005", wherein it has observed that :
"Indian Penal Code, Section 307 - An accused charged under section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in nature of a simple hurt - Bodily injury may not be sufficient to cause death - Accused may be convicted under section 307 IPC if he had intention to cause death - The determinative question is intention or knowledge, as the case may be, and not nature of the injury - Intention or knowledge is a question of fact and would depend on facts of a State Vs. Wasim @ Passa and others SC No.50/2010 22/25 given case."
"It is sufficient to justify a conviction under section 307 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. The section makes a distinction between the act of 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. Therefore, an accused charged under section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt."
68.Hon'ble Supreme Court in case titled as "Om Prakash v. State of Punjab, AIR 1961 Supreme court 1782, wherein it has held that :
"A person commits an offence under S. 307 when he has an intention to commit murder, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. The intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in S. 300. The intention to commit an offence is different from the intention or knowledge requisite from constituting the act as that offence. The expression whoever attempts of commit an offence in S. 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence'. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstance that if he, by that act, caused death, he would be guilty of murder in S. 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression 'by that act' does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word 'act' again, does not mean only any particular, specific instaneous act of a person, but denotes, according to S. 33 of the Code, as well, a series of acts. The course of conduct adopted by the appellant in regularly starying Bimla Devi comprised a series of acts and therefore, acts failing State Vs. Wasim @ Passa and others SC No.50/2010 23/25 short of completing the series, and would therefore come within the purview of S. 307 of the Code."
69.Citations filed by the ld. counsel for accused persons are partly applicable and not applicable to the facts of case against accused Wasim @ Passa.
70.It is also not disputed that accused Sagar Sharma and Harish Pathania had also participated in the present incident while beating the injured/complainant.
71.Since separate role of accused has been proved that accused Wasim @ Passa was prepared with intention and knowledge to cause death of complainant by his act. In order of execution of his act he was having sharp edged weapon and having company of his two associates who also given beatings to the complainant while causing injury by accused Wasim @ Passa. From the act of accused persons it cannot be ruled out that accused Wasim @ Passa was having intention to kill the complainant with knowledge otherwise he would not have knife with him. While causing injury to the complainant there was motive to kill the complainant when he demanded Rs.150/ from accused Wasim @ Passa and in that order his two associates namely Harish Pathania and Sagar Sharma played active role while beating him.
72.Therefore, after considering evidence available on record and arguments of the parties and taking into considerations the circumstances, this court comes to the conclusion that prosecution has proved its case against accused Wasim @ Passa u/s 307/34 IPC beyond reasonable doubt. Since,no evidence could come on record State Vs. Wasim @ Passa and others SC No.50/2010 24/25 against accused persons namely Harish Pathania and Sagar Sharma for the offence u/s 307/34 IPC, However fact of quarrel on the part of these accused persons are not disputed, Hence, At this stage this court alter the charges from section 307/34 IPC to 323/34 IPC against accused persons Harish Pathania and Sagar Sharma. Accordingly, accused Wasim @ Passa is convicted under section 307/34 IPC and accused persons namely Harish Pathania and Sagar Sharma convicted under section 323/34 IPC while acquitting accused persons namely Harish Pathania and Sagar Sharma from charges u/s 307/34 IPC.
PRONOUNED IN THE OPEN COURT ON THIS 19.07.2012 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI.
State Vs. Wasim @ Passa and others SC No.50/2010 25/25 State Vs. Wasim @ Passa and others SC No.50/2010 26/25 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 38/2009State Vs. 4. Wasim @ Passa s/o Yamin @ Chhotey r/o H. No.10/21, Makki Sarai, P.S. Shahdara, Delhi.
5. Harish Pathania, s/o Lal Dass Pathania, r/o H. No.4/174, Old Tejab Mill, Bholanath Nagar, Shahdara, Delhi.
6. Sagar Sharma @ Vishwa Kirti Sharma s/o Surender Sharma r/o H. No.C70/2, Old Tejab Mill, Bhola Nath Nagar, Shahdara, Delhi.
Police Station Shastri Park (Metro) Convicted Under 307/323/34 IPC Section ORDER ON THE POINT OF SENTENCE 23.07.2012 Pre: Ld. APP for the State. Convict Wasim @ Passa produced from JC.
Convicts namely Harsih Pathania and Sagar Sharma are on bail. Sh. Pradeep Tyagi, ld. counsel for convicts.
Ld. APP for State submits that since the offence has been proved against the convict Wasim @ Passa under section 307/34 IPC and against convicts namely Harish Pathania and Sagar Sharma under section 323/34 IPC. Ld. APP for the State further submits that they must be sentenced according to provisions of law to teach a lesson to such uncivilized persons. On this ground, ld. APP for the State has prayed State Vs. Wasim @ Passa and others SC No.50/2010 27/25 for maximum sentence to the convict persons.
On other hand, Ld. counsel for convict persons submits that convicts are very poor persons. Ld. counsel further submits that they are facing trial since 2006 and they have learnt a lesson that how to live in a civilized society. Ld. counsel for convicts further submits that convicts would not repeat such type of offence in future and they will live peacefully in the society. Ld. counsel for convicts further submits that convict Harish Pathania has been remained in JC for 28 days and having responsibility of his family and there is no previous criminal antecedents against him. Ld. counsel for convicts further submits that convict Sagar Sharma has been remained in JC for one month and two days and there is no previous criminal antecedents against him.
Ld. counsel for convict further submits that convict Wasim @ Passa has been remained in JC for four months and having two sisters and four brothers. Ld. counsel for convicts further submits that there are two cases pending against him.
Ld. Counsel for convicts further submits that convicts belongs to a poor family and they are having responsibility of their families. On these grounds, ld. counsel for convicts has requested for lenient view and requested to release the convicts for the sentence already undergone.
Arguments heard. Record perused. On perusal of record, it is revealed that since it has been established that convict Wasim @ Passa had committed the offence u/s 307/34 IPC with his well knowledge and with intention while attempting to cause the death of injured. In his attempt, this convict had caused four injuries upon the State Vs. Wasim @ Passa and others SC No.50/2010 28/25 injured, out of them one was on thighs near his private part which is sensitive part of the body. Act of convict Wasim @ Passa appears to be so dangerous. At this stage, after taking into consideration the fact that the convict Wasim @ Passa has been remained in JC for four months and having responsibility of his family, in the opinion of this court ends of justice will be met if convict Wasim @ Passa is sentenced to undergo R.I. for 7 years for offence u/s 307/34 IPC and fine Rs.5,000/. in default S.I. for six months. Accordingly sentence is awarded. Fine not paid. Benefit of section 428 Cr. P.C. be given to him.
Copies of the judgment along with sentence order be given to the convict Wasim @ Passa forthwith free of cost.
Since, convicts namely Harsih Pathania and Sagar Sharma have been convicted u/s 323/34 IPC. Ends of justice will meet if convicts namely Harsih Pathania and Sagar Sharma are sentenced to a period of already undergone. Accordingly, convicts namely Harish Pathania and Sagar Sharma are released on period already undergone by giving them benefit of section 428 Cr.P.C.
In terms of section 437 A Cr. P.C. convicts Harish Pathania and Sagar Sharma are hereby directed to execute bail bond in sum of Rs.30,000/ each with one surety in the like amount for the period of six months. Orders accordingly.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 23.07.2012 (RAMESH KUMAR - II) ASJ01/N.E./KARKARDOOMA COURTS, DELHI.
State Vs. Wasim @ Passa and others SC No.50/2010 29/25 State Vs. Wasim @ Passa and others SC No.50/2010 30/25