Delhi District Court
State vs . on 30 March, 2013
IN THE COURT OF SH. ASHUTOSH KUMAR : ASJ3 :
DWARKA COURTS : DELHI
In the matter of:
Sessions Case No. 9/2013.
FIR No. 305/2010.
PS Bindapur.
U/s 392/394/397/34 IPC.
State
Vs.
1. Rakesh Kr. Sharma @ Sanp
S/o Sh. Vinod Kr. Sharma
R/o Vegabond, Raja Puri Chowk,
Delhi.
Also at:
Village & Post Narain Pur,
District Alwar, Rajasthan.
2. Anil Kumar @ Monu
S/o Sh. Duli Chand
R/o F60, Om Vihar Extn.,
Gali No. 12, Uttam Nagar,
New Delhi.
3. Sunil @ Bhasav
S/o Not known
R/o Not known.
(Untraced) ... Accused.
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 1 of 25.
Date of Filing of Case. : 20.5.2011.
Date of Advancing Arguments. : 22.3.2013.
Date of Judgment. : 30.3.2013.
:: JUDGMENT ::
1. Briefly stated the case of the prosecution, as per material on record
is that on 14.8.2010, the complainant (PW1) gave a written
complaint (Ex PW1/A) to IO HC Hari Singh (PW16) of PS Bindapur,
wherein it is mentioned that on 13.8.2010 at about 11.00 pm in
the night, the complainant was standing near Mother Dairy,
Bhagwati Vihar, when one Rakesh @ Sahab @ Sanp S/o unknown
R/o unknown, whom the complainant knew very well, asked
money from the complainant. The complainant told him (Rakesh)
that he (Rakesh) had taken money from many people and had not
returned the same and, hence, he (complainant) will not give
money to him (Rakesh). On this, Rakesh started beating the
complainant and during the scuffle, Rs. 700/ and two mobile
phones of the complainant fell down and Rakesh stabbed him
(complainant) on his left cheek with some sharp object. The said
complaint was signed by the complainant in English language. The
complainant (PW1) was got medically examined at DDU Hospital on
13.8.2010, vide MLC No. 15485/10 (Ex PW2/A) and the doctor
declared him (complainant) fit for statement and the result of the
said MLC was kept awaited. The result of the said MLC as
'grievous in view of facial disfigurement' by the concerned doctor, is
dated 6.9.2010. On 13.9.2010 (one month after the alleged
incident), FIR u/s 325 IPC was registered against the accused
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 2 of 25.
Rakesh @ Sahab @ Sanp and investigation was handed over to HC
Hari Singh, who inspected the spot and prepared the site plan and
recorded the statements of the witnesses and converted Section
325 IPC into Section 326/34 IPC on the next day and on
20.12.2010, on the direction of DCP1, South West, Delhi, the
investigation of the case was transferred to Inspector Pyare Lal,
ATO of PS Bindapur. On 5.3.2011, the accused Rakesh @ Sanp
was arrested on the pointing out by the complainant to the IO and
his disclosure statement was recorded, wherein he stated that he
had given the two looted mobile phones to his two associates
namely Monu and Bhasav @ Sunil and stated that he threw the
knife used for inflicting the injury to the complainant, in ganda
nala, Madhu Vihar, but the said knife was not recovered. During
the investigation, the supplementary statement of the complainant
was recorded and on the basis of the same, the case u/s 326/34
IPC was converted into u/s 394/34 IPC. On 5.4.2011, on the
identification of the complainant, coaccused Anil Kumar @ Monu
was arrested and his disclosure statement was also recorded. As
per charge sheet, the two robbed mobile phones bearing no.
9718506089 (make Micromax) and 9211494179 (make Samsung),
were recovered and prints out of call details were obtained from
Airtel company (service provider). Further, supplementary
statement of complainant was recorded and it was found that the
complainant had got activated the mobile tracker on his aforesaid
Micromax mobile.
2. During investigation, accused Sunil @ Bhasav remained untraced
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 3 of 25.
and was not declared a proclaimed offender, as his father's name
and residential address were not available with the investigating
agency.
3. After completion of the investigation, charge sheet u/s
392/394/397/34 IPC was filed against accused no. 1 Rakesh Kr.
Sharma @ Sanp, accused no. 2 Anil Kumar @ Monu and accused
no. 3 Sunil @ Bhasav, was remained untraced.
4. After supplying the complete copies to the accused persons, the
concerned ld. MM committed the case to the Court of sessions, as
the offence u/s 397 IPC for which the cognizance was taken, was
sessions triable.
5. Vide order dated 6.7.2011, the ld. Predecessor framed the charge
u/s 392/394/34 IPC against the accused persons namely Rakesh
Kr. Sharma @ Sanp and Anil Kumar @ Monu and also framed the
charge u/s 397 IPC against the accused Rakesh Kr. Sharma @
Sanp, to which they pleaded not guilty and claimed trial.
6. Prosecution has examined 18 witnesses.
7. PW1/complainant/Avinash is the injured and has described about
the incident and as to how the stab injury was inflicted on his face
by accused Rakesh on 13.8.2010 at about 10.3011.00 pm near
Mother Dairy, Bhagwati Vihar, and the respective role played by
the accused persons. PW1/Avinash has proved his statement
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 4 of 25.
recorded in the hospital as Ex PW1/A, site plan Ex PW1/B, arrest
memo of accused Rakesh Ex PW1/C, personal search memo of
accused Rakesh Ex PW1/D, disclosure statement of accused
Rakesh Ex PW1/E, pointing out memo Ex PW1/F, duplicate bill of
his mobile (make Micromax) Ex PW1/G, arrest memo of accused
Anil Ex PW1/H, personal search memo of accused Anil Ex PW1/J,
disclosure statement of accused Anil Ex PW1/K, his Micromax
mobile phone Ex P1.
8. PW2 is Dr. Alok, Senior Resident, DDU Hospital, New Delhi, who
initially examined the patient Avinash (complainant) with alleged
history of physical assault and prepared MLC and referred him
(injured/complainant) to Plastic Surgery Department. He has
proved MLC Ex PW2/A of injured/complainant.
9. PW3 is HC Ramesh, who has proved that on 13.9.2011, he was
Duty Officer and at about 8.00 pm, had received a rukka from HC
Hari Singh and on the basis of the same, he registered the present
case FIR, Ex PW3/A and made endorsement on the rukka Ex
PW3/B.
10. PW4 is Surender Kumar, Assistant Nodal Officer, Idea Cellular
Ltd., who has proved the customer application form of mobile no.
9718506089, which is in the name of Nanhe S/o Skekhawat R/o
House No. 106, Kakrola Dairy, New Delhi, driving licence as proof
of identify of Nanhe Ex PW4/B, call detail records of said mobile
w.e.f. 29.10.2010 to 11.3.2011 Ex PW4/C, certificate u/s 65 B of
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 5 of 25.
Evidence Act Ex PW4/D and print out of cell ID chart Ex PW4/E.
11. PW5 is Const. Virender, who joined the investigation of this case on
5.3.2011 with Inspector Pyare Lal and HC Surinder. He proved
that on the pointing out of complainant, they arrested the accused
Rakesh and, thereafter, he got the accused medically examined
and then produced him before the Court and has correctly
identified the accused in the Court.
12. PW6 is HC Surender Kumar, who joined the investigation of this
case on 5.4.2011 with Inspector Pyare Lal and has proved recovery
of Micromax mobile phone Ex PW6/A from Pintu (PW7), seizure
memo Ex PW6/B of said mobile phone and mobile phone of orange
colour (make Nokia) Ex P2.
13. PW7 is Pintu, who deposed that he knows accused Rakesh Kr.
Sharma, as he is resident of his village. He further deposed that
accused Rakesh owed him Rs. 800/ as the price of eatables, which
he had consumed at his rehri over a period of time. He further
deposed that in August or September 2010, accused Rakesh gave
him a Micromax mobile phone and asked him to keep the same
with him and demanded Rs. 200/ and told that he (Rakesh) would
pay Rs. 1,000/ and take back the said mobile phone, but the
accused did not turn up. Thereafter, he (PW7) handed over the
said mobile phone to his friend Desh Bandhu Gupta, who returned
back the said mobile phone in the month of January 2011. He
further deposed that on 17.4.2011, on inquiry by the police official,
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 6 of 25.
he handed over the said mobile phone to the police official.
14. PW8 is Desh Bandhu Gupta, who deposed that in the year 2010,
he lost his mobile phone and his friend Pintu (PW7) had given him
a Micromax mobile phone of black colour till the time he (PW8)
purchased a new mobile. PW8 further deposed that he used the
said mobile phone for 22½ months and, thereafter, returned back
the said mobile phone to his friend Pintu.
15. PW9 is Rameshwar Mali, who deposed that he purchased a mobile
phone of black colour of Nokia make from his maternal uncle
Bharat Mali, for use, for a sum of Rs. 1,000/ and obtained a
mobile connection no. 9799165365 of Vodaphone company. PW9
further deposed that he used the said mobile phone for 34
months, thereafter, police officials came to him and seized the said
mobile phone.
16. PW10 is Const. Namoh Narain, who deposed that on 19.4.2011, he
was posted at PS Kela Devi, Rajasthan, and on that day, HC
Surinder of Delhi Police, had come to their PS and on the direction
of SHO, he (PW10) accompanied HC Surinder to Village Khori in
the house of Rameshwar Mali, who produced mobile phone of
make Nokia 1200, which was seized by HC Surinder.
17. PW11 is Const. Sanjay, who deposed that on 17.4.2011, he was
posted at PS Narainpur, Rajasthan, and on that day, HC Surinder
of Delhi Police, had come to their PS and on the direction of SHO,
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 7 of 25.
he (PW11) accompanied HC Surinder to Khation Ka Mohalla,
Village Narainpur, to the house of Babu Lal, where Pintu S/o Babu
Lal produced mobile phone of make Micromax, which was seized
by HC Surinder.
18. PW12 is Data Ram Mali, who deposed that his brother in law (sala)
Rameshwar had purchased a mobile phone of Nokia make from his
maternal uncle in January 2011, and he (PW12) was using the said
mobile. PW12 further deposed that on 19.4.2011, he had gone to
the house of Rameshwar and accompanied him to PS Kela Devi,
where he produced the said mobile phone in front of the police
officials, which was seized by the police officials.
19. PW13 is R.K. Singh, Nodal Officer, Bharti Airtel Ltd., who has
proved the photocopy of customer application form Ex PW13/A of
mobile no. 9928473077, which is in the name of Desh Bandhu
Gupta S/o Raghuvir Gupta R/o Narainpur, Alwar, Rajasthan,
election identity card as proof of identify of Desh Bandhu Gupta Ex
PW13/B, call detail records of said mobile w.e.f. 1.9.2010 to
10.9.2010 Ex PW13/C. PW13 has further proved the photocopy of
customer application form Ex PW13/D of mobile no. 9799165363,
which is in the name of Madan Lal S/o Badri Prasad R/o
Narainpur, Alwar, Rajasthan, election identity card as proof of
identify of Madan Lal Ex PW13/E, call detail records of said mobile
w.e.f. 1.9.2010 to 10.9.2010 Ex PW13/F. PW13 has further proved
certificate u/s 65 B of Evidence Act Ex PW13/G.
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 8 of 25.
20. PW14 is Ashu Jain, who has deposed that he is an employee of The
Mobile Store, Sector 6, Dwarka and has come to depose in place of
Bhupender Singh, who has left the service of their company. PW14
has deposed that the invoice (Ex PW14/A) pertaining to mobile of
Micromax Q2, IMEI No. 910040040926219, was sold from their
shop to Avinash (complainant), on 27.2.2010.
21. PW15 is Vikas Deswal, Junior Resident (Plastic Surgery), DDU
Hospital, New Delhi, who deposed that he had come to depose in
place of Dr. Kumar Pushpak and Dr. Sanjay, who have left the
service of DDU Hospital. He deposed that MLC Ex PW2/A bears
endorsement in the handwriting of Dr. Sanjay at point X and bears
his (Dr. Sanjay) signature at point B. He further deposed that MLC
also bears the endorsement in the handwriting of Dr. Kumar
Pushpak from points X1 to X2 and bears his (Dr. Kumar Pushpak)
signature at point C.
22. PW16 is ASI Hari Singh, who deposed that on 13.8.2010, he was
posted as Head Constable in PS Bindapur and was on emergency
duty. He further deposed that at about 12.00 midnight,
complainant came to PS and was having an injury on his left cheek
and he was bleeding, accordingly, he (PW16) took him to DDU
Hospital for treatment. Then after seeking permission from the
doctor, he recorded the statement of injured. The doctor kept the
result of the MLC pending. Thereafter, the said witness returned to
the PS and apprised about the incident to Inspector Pyare Lal. He
further deposed that on 13.9.2010, he collected the MLC of injured
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 9 of 25.
and, thereafter, prepared rukka Ex PW16/A and got the FIR of
present case registered.
23. PW17 is Inspector Pyare Lal, who has deposed that on 20.12.2010,
he was handed over the investigation of this case and has deposed
about the subsequent investigation carried out by him.
24. PW18 is Ajay Kumar, elder brother of injured/complainant, who
deposed that his younger brother Avinash telephonically informed
him about the incident.
25. Thereafter, statements of both the accused persons namely Rakesh
Kr. Sharma @ Sanp and Anil Kumar @ Monu u/s 313 CrPC were
recorded separately, to which stand of both the accused persons
was of general denial and they stated that they have been falsely
implicated in the present case and that they are innocent.
26. I have heard Sh. Pramod Kumar, ld. Addl. PP for State, Sh.
Prakash Moolchandani (amicus curiae), ld. counsel for accused
Rakesh Kr. Sharma @ Sanp and Sh. M.P. Singh, ld. counsel for
accused Anil Kumar @ Monu and have perused the entire record,
carefully.
27. From the case of the prosecution, it is clear that the
complainant/PW1 made the complaint dated 14.8.2010 Ex PW1/A,
under his signature, in English language, to HC Hari Singh of PS
Bindapur regarding the alleged incident dated 13.8.2010, but in
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 10 of 25.
the said complaint no allegation of robbery against any of the
accused persons were made and there is only allegation of stabbing
against accused Rakesh only, who had allegedly stabbed the
complainant with the sharp object on his left cheek. Further, none
of the other two accused person have been named in the said
complaint and even their participation in the alleged crime has not
been described. Further, the FIR u/s 325 CrPC (Ex PW3/A) was
recorded on 13.9.2010 i.e. after a period of one month from the
date of incident. It appear that the FIR was not registered in the
matter on 14.8.2010, inspite of making of complaint regarding the
incident by the complainant on 14.8.2010 and despite the fact that
the complainant was examined at DDU Hospital on 13.8.2010 and
his MLC was prepared, as no opinion regarding the injury was
given by the concerned doctor on that date. On perusing of the
MLC of complainant, it is clear that the said opinion was given on
6.9.2010. Also, there is photocopy of supplementary statement
dated 16.8.2010 of the complainant (PW1), which is not duly
proved, but wherein the complainant made additional allegations of
robbery against three accused persons, for the first time.
PW1/complainant in his testimony, has made allegations of
robbing of Rs. 700/ and two mobile phones against the three
accused persons and has described their role. However, the initial
complaint of the complainant Ex PW1/A dated 14.8.2010, does not
mention any allegation of robbery and except accused Rakesh, the
other two accused persons have even not been named. The
complainant in his testimony has admitted that he made his
aforesaid statement Ex PW1/A to HC Hari Singh in the hospital,
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 11 of 25.
but has given the explanation that later on he came to know that
the said statement was wrongly recorded by the IO. It is
surprising, as on the one hand the complainant is admitting giving
of his aforesaid complaint Ex PW1/A, bearing his signature in
English language to the IO and on the other hand, he is claiming
that the said statement was wrongly recorded by the IO. Even if for
arguments sake it is assumed that his statement was wrongly
recorded by the IO, still the prosecution has failed to prove, as to
when and what supplementary statement of the complainant
regarding robbery was recorded and what action was taken against
the guilty police officials, for wrongly recording the statement of the
complainant. Also, there is only photocopy of the supplementary
statement dated 16.8.2010 of the complainant on record, wherein
he has made additional allegations of robbery against the three
accused persons, but the original of the said statement has not
been produced on record and complainant/PW1 in his testimony
has not proved the said statement. Also, there is delay of one
month between the date of alleged incident dated 13.8.2010 and
date of registration of FIR on 13.9.2010, but it appears that since
the opinion of the concerned doctor was not received on 13.8.2010
and the same was only received on 6.9.2010 (as is reflected from
the MLC), therefore, the investigating agency may be under the
wrong impression, as to whether any cognizance offence is made
out or not, although, they should have registered the FIR u/s 324
IPC and then they could have awaited for result of the MLC and on
the basis of result, they could have converted the case to u/s
326/34 IPC, but in my considered opinion the said delay of one
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 12 of 25.
month in registration of FIR is not fatal to the case of the
prosecution, as the complainant (PW1) is consistent in his
deposition regarding who inflicted the injury and how, with his
statement dated 14.8.2010 Ex PW1/A to the police and the same is
corroborated by his MLC recorded on 13.8.2010 at DDU Hospital
vide Ex PW2/A. But surprisingly, if the version of the prosecution
is correct and if the investigating agency was already having the
supplementary statement dated 16.8.2010 of the complainant with
them, wherein the allegations of robbery was also made, then why
the case under appropriate Section of robbery was not registered
on 13.9.2010, when the FIR was registered, is beyond
comprehension. In any case because of these lacunae, I am of the
considered opinion that the case of the prosecution has to be
decided on the basis of the first statement dated 14.8.2010 of the
complainant and the subsequent statement of the complainant
dated 16.8.2010, is of no value.
28. The complainant/PW1 in his testimony has deposed that the three
accused persons namely Rakesh Kr. Sharma @ Sanp, Anil Kumar
@ Monu and Sunil @ Bhasav had committed aforesaid robbery with
him on 13.8.2010 at 10.3011.00 pm, when he had gone to
purchase medicine and was standing near Mother Dairy, Bhagwati
Vihar, and has stated that he knew all the three accused persons,
prior to the incident. However, in view of the aforesaid discussions
and also in view of the fact that there is no mention of alleged
robbery in his first statement Ex PW1/A dated 14.8.2010 to police
or in the MLC Ex PW2/A and also in view of the fact that committal
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 13 of 25.
of robbery by known person is difficult, the testimony of this
witness regarding robbery of aforesaid articles by the accused
persons, is of no significance and the same is not believable.
However, PW1 has categorically deposed in his examination in
chief that accused Rakesh gave knife below on his left cheek and,
thus, has corroborated his initial statement Ex PW1/A dated
14.8.2010 given to the police, wherein he had mentioned that the
accused Rakesh stabbed him on the left cheek with sharp object
and there is no improvement in the testimony of said witness, on
the said point from the statement given to the police. Further, the
said part of the testimony of the complainant is corroborated by
the MLC Ex PW2/A of the complainant, wherein injury 6.7 X 1 X
0.5 cm on left cheek of the complainant has been observed at DDU
Hospital, New Delhi, which is a government hospital and PW2 Dr.
Alok, Senior Resident, DDU Hospital, New Delhi, has proved the
said MLC Ex PW2/A, but had stated that the opinion regarding the
nature of injury on the MLC was not given by him. However, the
opinion regarding the nature of injury on the MLC was proved by
PW15 Dr. Vikas Deswal, Junior Resident (Plastic Surgery), DDU
Hospital, New Delhi, who has proved the endorsement in the
handwriting of Dr. Sanjay, at point X, wherein opinion has been
given as 'grievous in view of facial disfigurement'. Thus, in my
considered view, there is no force in the arguments of the ld.
counsel for accused Rakesh that merely because this fact that the
accused Rakesh had used the knife, in causing the injury, was not
mentioned in the first statement EX PW1/A of the complainant and
also because the said knife was not recovered at the instance of
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 14 of 25.
this accused pursuant to his disclosure statement, the testimony of
PW1 on the said point is not believable, as in the first statement Ex
PW1/A of the complainant, it is clearly mentioned that the accused
Rakesh stabbed the complainant on the left cheek with the sharp
object and merely clarifying the said sharp object to be a knife in
his testimony as PW1, he has not made any improvement and
further, once there is specific ocular evidence of the complainant
regarding the injury, which is corroborated by the medical
evidence, nonrecovery of weapon of offence, is of no significance.
By no stretch of imagination, the said injury inflicted on the
complainant (PW1) can be called selfinflicted. Further, no
suggestion to the complainant was given on behalf of the accused
Rakesh that there was previous enmity between them and as result
of which, the complainant deposed against him.
29. Thus, it stands established that the accused Rakesh stabbed the
complainant on his left cheek with the sharp object (knife), which
resulted into 'permanent disfiguration' on the face of the
complainant, which falls in clause 6 of Section 320 IPC, which is
for grievous hurt.
30. Further, out of the alleged two robbed mobile phones of the
complainant of make Micromax and Samsung, the investigating
agency recovered one Micromax mobile phone, but the other
recovered mobile phone was of Nokia make and, thus, the recovery
of other mobile phone of Samsung make, was not proved. Further,
after recovery of the said mobile phone, after considerable time of
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 15 of 25.
occurrence of the incident and also not from the possession of
these two accused persons, who are facing trial before this Court
and also prosecution having failed to establish that the said mobile
phone of Micromax make was even once used by these two accused
persons, the prosecution has failed to connect the recovery of the
Micromax mobile phone of the complainant with both the accused
persons, who are facing trial before this Court and the testimony of
PW7 on the said point is of no value, when admittedly Desh
Bandhu Gupta, from whom the said mobile phone was recovered,
is not an accused and also in view of the specific suggestion given
by the accused Rakesh, in his cross examination that he is not
resident of village of PW7 Pinto, to whom the said mobile phone
was allegedly given by the accused Rakesh and Pinto had allegedly
given the said mobile phone to Desh Bandhu Gupta, from whom
the said mobile phone was allegedly recovered, on 17.4.2011.
31. Thus, the prosecution has failed to prove its charge for the offence
u/s 392/394/34 IPC against both the accused persons namely
Rakesh and Anil and u/s 397 IPC against accused Rakesh.
However, the prosecution has proved the ingredients of the offence
u/s 326 IPC against accused Rakesh.
32. Let us see whether the accused Rakesh can be convicted for
offence u/s 326 IPC, specially in view of the fact that no separate
charge u/s 326 IPC was framed against him and also in view of the
fact that the offence u/s 326 IPC being punishable with
impressionment for life or for impressionment, which may extend
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 16 of 25.
upto 10 years and fine or both and the same cannot be said to be a
lesser offence, then, the offences u/s 392/394/34 IPC and u/s 397
IPC, for which the accused persons have been charged. The
answer has to be in "affirmative", as the law laid down by the
Highest Court of this country in cases reported as, (i) AIR 2003 SC
Page 11, titled as, "K. Prema S. Rao & Another Vs. Yadla
Srinivasa Rao & Others" and (ii) (2011) 2 SCC 83, titled as, "S.
Ganesan Vs. Rama Raghuraman & Others".
33. "K. Prema S. Rao's" case (supra) was a case wherein the accused
stood chargesheeted for offences punishable u/s 498A and 304B
IPC, however, the learned trial court in its judgment held that only
offence u/s 498A IPC was made out against him and as such, he
was acquitted for offence punishable u/s 304B IPC. The judgment
of the ld. Trial Court was also affirmed by the Hon'ble High Court
of Andhra Pradesh. The Hon'ble Supreme Court in appeal filed in
the matter found the accused guilty of commission of offence
punishable u/s 306 IPC besides offence punishable u/s 498A IPC,
although there was no specific charge framed against him for
offence punishable u/s 306 IPC. The Hon'ble Supreme Court
interalia held as under:
xxxxx
22. Mere omission or defect in framing charge
does not disable the Criminal Court from
convicting the accused for the offence which is
found to have been proved on the evidence on
record. The Code of Criminal Procedure has ample
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 17 of 25.
provisions to meet a situation like the one before us.
From the Statement of Charge framed under Section
304B and in the alternative Section 498A, IPC (as
quoted above) it is clear that all facts and ingredients
for framing charge for offence under S.306, IPC existed
in the case. The mere omission on the part of the trial
Judge to mention of S.306, IPC with 498A, IPC does
not preclude the Court from convicting the accused for
this said offence when found proved. In the alternate
charge framed under S.498A of IPC, it has been clearly
mentioned that the accused subjected the deceased to
such cruelty and harassment as to drive her to commit
suicide. The provisions of Section 221 of CrPC take
care of such a situation and safeguard the powers of
the criminal Court to convict an accused for an offence
with which he is not charged although on facts found in
evidence, he could have been charged for such offence.
Section 221 of CrPC needs reproduction:
"221. Where it is doubtful what offence
has been committed (1) If a single act or
series of acts is of such a nature that it is
doubtful which of several offences the
facts which can be proved will constitute,
the accused may be charged with having
committed all or any of such offences, and
any number of such charges may be tried
at once; or he may be charged in the
alternative with having committed some
one of the said offences.
(2) If in such a case the accused is
charged with one offence, and it appears
in evidence that he committed a different
offence for which he might have been
charged under the provisions of sub
section (1), he may be convicted of the
offence which he is shown to have
committed, although he was not charged
with it.
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 18 of 25.
23. The provision of subsection (2) of Section 221
read with subsection (1) of the said Section can be
taken aid of in convicting and sentencing the accused
No.1 of offence of abetment of suicide under Section 306
of IPC along with or instead of Section 498A of IPC.
24. Section 215 allows criminal Court to ignore any
error in stating either the offence or the particulars
required to be stated in the charge, if the accused was
not, in fact, misled by such error or omission in framing
the charge and it has not occasioned a failure of justice.
See Section 215 CrPC, which reads:
"215. Effect of errors No error in stating
either the offence or the particulars
required to be stated in the charge, and
no omission to state the offence or those
particulars, shall be regarded at any
stage of the case as material, unless the
accused was in fact misled by such error
or omission, and it has occasioned a
failure of justice.
25. As provided in Section 215 of CrPC omission to
frame charge under Section 306, IPC has not resulted in
any failure of justice. We find no necessity to remit the
matter to the trial Court for framing charge under
Section 306, IPC and direct a retrial for that charge.
The accused cannot legitimately complain of any want
of opportunity to defend the charge under Section 306,
IPC and a consequent failure of justice. The same facts
found in evidence, which justify conviction of the
appellant under Section 498A for cruel treatment of his
wife, make out a case against him under Section 306,
IPC of having abetted commission of suicide by the
wife. The appellant was charged for an offence of
higher degree causing "dowry death" under Section
304B which is punishable with minimum sentence of
seven years rigorous imprisonment and maximum for
life. Presumption under Section 113A of the Evidence
Act could also be raised against him on same facts
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 19 of 25.
constituting offence of cruelty under Section 495A IPC.
No further opportunity of defence is required to be
granted to the appellant when he had ample
opportunity to meet the charge under Section 498A,
IPC.
26. It may be mentioned that against confirmation of
his conviction by the High Court under S.498A, IPC, the
accused No. 1 has not preferred any special leave to
appeal to this Court. The facts found proved for his
conviction and sentence under S.498A, IPC,
cannot now be questioned by the accused. Our
conclusion, therefore, is that same facts and
evidence on which accused No.1 was charged
under S.498A and S.304B, the accused can be
convicted and sentenced under Section 306, IPC.
We find no legal or procedural impediment in
doing so".
xxxxx
(Underlining emphasized)
34. In "S. Ganesan's" case (supra), the Hon'ble Supreme Court has
further been pleased to hold as under:
xxxxx
19. So far as the issue of setting aside the conviction
under Section 120B IPC against both the respondents
and not framing the charge under any other penal provision is concerned, it has to be considered, as to whether conviction under any other provision for which the charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court from time to time. The accused must be aware as to what is the case against them and what defence they could lead. Unless the parties satisfy the court that there has been a failure of justice from non framing of SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 20 of 25.
charge under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of law is sustainable. (Vide Amar Singh Vs. State of Haryana).
20. This Court in "Sanichar Sahni Vs. State of Bihar" while considering the issue placed reliance upon various judgments of this Court, particularly in "Topandas Vs State of Bombay", "Willie (William) Slaney Vs State of M.P", "Fakhruddin Vs State of M.P", "State of A.P. V Thakkidiram Reddy", "Ramji Singh V/s State of Bihar" and "Gurpreet Singh V/s State of Punjab" and came to the following conclusion: (Sanichar Sahni case, SCC p. 204, para 27).
"27. Therefore ...... unless the convict is able to establish the defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."
21. The case is required to be considered in the light of the aforesaid settled legal propositions. In the instant case, the prosecution did not establish any motive to commit the crime. There is nothing or record to show as to whether Rama Raghuraman (A1) had indulged in any physical intimacy with the deceased. The evidence of the doctor who examined the deceased, remained far from satisfactory and as he changed his version, he has been declared hostile.
22. If the case of the prosecution is taken to be true, we have to examine as to whether the case of the SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 21 of 25.
respondents falls within the ambit of Section 100 and Exception II to Section 300 IPC and as to whether the High Court has dealt with the same taking into consideration all these incriminating circumstances considered by the trial court. Admittedly, the High Court did not deal with any of the incriminating circumstances considered by the trial court for the purpose of conviction of the respondent and did not address itself to the relevant issues involved in the appeal. Therefore, the judgment and order of the High Court cannot be held to be sustainable in law and it suffers from perversity.
23. In "Shivaji Sahabrao Bobade Vs. State of Maharashtra", this Court held: (SCC pp. 799800, para 6) "6... Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analyzing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant."
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 22 of 25.
24. We are of the considered view that the High Court has unnecessarily shown misplaced sympathy in a case where conviction was eminent . In the facts and circumstances of the case, the respondents are the only persons who could explain as to under what circumstances the deceased suffered grievous injuries on the vital parts of his body. The Court has to draw its own inference considering the totality of the circumstances".
xxxxx (Underlining emphasized)
35. If the law laid down in the aforesaid judgments is applied to the facts of the present case, then it is apparent that the accused Rakesh knew about the statement Ex PW1/1 dated 14.8.2010, wherein complainant made the allegation that accused Rakesh stabbed the complainant with sharp object on his left cheek and, copy of said statement and MLC Ex PW2/A dated 13.8.2010 of complainant, mentioning grievous injury, were supplied to him, as such, no prejudice has been caused to him by not framing specific charges against him for offence punishable u/s 326 IPC. It cannot be said that he was not aware about the said facts of case of prosecution or was not able to defend himself properly. From the material on record, the prosecution has proved beyond reasonable doubt that accused had stabbed the complainant on his left cheek with sharp object. Consequently, in view of the aforesaid case laws and in the facts and circumstances, I am of the considered opinion that accused Rakesh Kr. Sharma @ Sanp S/o Sh. Vinod Kr.
Sharma is guilty for offence punishable u/s 326 IPC and is, accordingly, convicted.
SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 23 of 25.
36. Further, from the material on record, it is clear that investigating agency has not investigated the case fairly and properly and there is delay of one month in registration of FIR and wrongly recording the FIR in different sections of IPC on 13.9.2010 despite having supplementary statement dated 16.8.2010 of the complainant.
Further, although, allegedly second mobile phone of make 'Samsung' of the complainant was robbed, but the recovery of one mobile phone of make 'Nokia' has been shown. In case titled "State Vs. Naresh & Others", Crl. LP No. 136/2012 & Crl. MA No. 3042/2012 decided on 8.8.2012, Hon'ble Division Bench of High Court of Delhi has held as under: "5. In a recent pronouncement of the Supreme Court rd of India dated 3 August, 2012 reported in Criminal Appeal No. 529/2010 Dayal Singh & Others Vs. State of Uttranchal, the Supreme Court has given strict directions so far as the duty of Courts while undertaking criminal trials is concerned. The Supreme Court has held that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that Courts return a specific findings in criminal cases upon recording of reasons on the deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution.
The Supreme Court has further held that Courts would be duly justified in directing the disciplinary authority to take appropriate disciplinary or other action in SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 24 of 25.
accordance with law, whether such officer, expert or employee witness, is in service or has since retired."
37. Accordingly, a copy of this judgment be sent to the Commissioner of Police, for taking necessary action against the erring police officials, under intimation to this Court, within one month from the receipt of the judgment.
Announced in the open Court on 30.3.2013.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI SC No. 9/13. State Vs. Rakesh Kr. Sharma & Others. Page No. 25 of 25.