Delhi District Court
State vs Kamna Fir No. 808/2015 Ps Nihal Vihar U/S ... on 29 August, 2019
State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST DISTRICT : TIS HAZARI COURTS : DELHI SC No. 58250/2016 FIR No. 808/2015 U/s. 308 IPC P.S Nihal Vihar In the matter of : State Versus Kamna W/o Shri Shyamal Chaterjee R/o RZK2 29/42 Nihal Vihar, Delhi Date of Institution : 05.12.2016 Date of reserving Judgment : 23.08.2019 Date of pronouncement : 29.08.2019 Appearances For the State : Shri Santosh Kumar, Additional Public Prosecutor. For the accused : Sh. Mohd. Furkan, Advocate. JUDGMENT
1. Accused namely Kamna wife of Shyamal Chaterjee was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) upon conclusion of investigation into First Information Report (FIR) No. 808/2015 of police station (PS) Nihal Vihar for offence punishable under Sections 308 of the Indian Penal Code (IPC), 1860.
Sessions Case No. 58250/2016 Page 1/21State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC
2. Prosecution Version As per the prosecution story, on 25.08.2015 on receipt of DD no. 36 A, HC Raj Kumar alongwith Ct. Vikram went to the spot i.e. K-2/29/55 Nihal Vihar, Delhi where caller was not found on the spot. Vide DD no. 48 B, information was received that caller/injured had gone to Sanjay Gandhi Memorial Hospital (SGMH) for treatment but the treatment is not being provided and accordingly, HC Raj Kumar along with Ct. Vikram went to SGM Hospital and obtained MLC no. 15884 of injured namely Rampati. Later on, injured namely Rampati came to the police station and gave her statement to the effect that on 25.08.2015 at about 11.30 a.m, she was cleaning nali in front of her house and at the same time her neighbour i.e. accused Kamna was also filling pits with Kassi infront of her house. A quarrel took place between Rampati and Kamna on the issue of drainage of nali water. In the meanwhile, Kamna hit on the head of Rampati with Kassi. Thereafter, injured went to SGM hospital for treatment.
3. On the statement of the complainant Rampati, FIR no. 808/2015 u/ 308 IPC was registered. Accused Kamna was grated anticipatory bail by Hon'ble High Court and she was formally arrested by police and released on bail.
4. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence were collected to establish that the accused Kamna attempted to commit murder of complainant Rampati. Accordingly, chargesheet was filed in the court of learned Metropolitan Magistrate, who after Sessions Case No. 58250/2016 Page 2/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC complying with the provisions stipulated under Section 207 Cr.P.C committed the case to the Court of Session.
5. Charge After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused, vide order dated 10.02.2017, charge for the commission of offence punishable under Sections 308 IPC was framed against accused Kamna to which accused did not plead guilty and claimed trial.
6. Prosecution Witnesses To prove the afore-mentioned charge against the accused, the prosecution examined five witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is stated herein below, in tabular form :-
S.NO NAME OF EXHIBIT DOCUMENTAR NATURE OF
PW Y EVIDENCE TESTIMONY
PW-1 Smt. Ex.PW-1/A Statement Being the
Rampati recorded by the victim/injured,
(victim and police she deposed
complainant about the
) incident.
PW-2 Dr. Ex.PW-2/A Record of Deposed
Balvinder admission and about
Singh treatment given admission and
to the injured treatment of
Rampati injured/victim
in Jainar
Hospital.
PW-3 ASI Raj Ex.PW-3/A Rukka Deposed
Kumar about initial
investigation
of the case.
Sessions Case No. 58250/2016 Page 3/21
State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC
PW-4 SI Ram Pal PW-4/A Site plan Conducted
Singh without scale further
investigation
of the case.
PW-5 Dr.P.C Ex. PW- 5/ MLC no. 15884 Proved MLC
Prabhakar, A dated of
CMO 25.08.2015 of injured/victim.
injured Rampati
7. Statement of Accused
After conclusion of prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded on 01.08.2019 wherein the accused denied the correctness of all the incriminating circumstances appearing in the evidence against her and stated that she had no quarrel with the complainant and she even did not hit her with a Kassi and not caused any injury to the complainant.
8. The accused did not lead any evidence in her defence.
9. Final Arguments Arguments were advanced by Shri Santosh Kumar, learned Additional Public Prosecutor for the State and Shri Mohd. Furkan, Ld. Counsel for accused.
JUDICIAL RESOLUTION
10. I have given my thoughtful consideration to the submissions of both the sides and have perused the record. Law - i.e. Sections in which accused is charged:
11. Accused is charged with the offence punishable u/s 308 IPC which is reproduced as under:-.
308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused Sessions Case No. 58250/2016 Page 4/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC 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.
12. The term culpable homicide is defined in section 299 IPC and the same is reproduced as under:-
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Discussion of evidence to prove the aforesaid offence
13. As in the present case, it is alleged that the accused hit the complainant on the head with Kassi because of which the complainant received injuries on her head, therefore, the prosecution in order to prove offence u/s 308 IPC is required to prove the following ingredients:-
a) that accused hit the complainant on the head with Kassi
b) that the complainant received injury on her head because of the said assault.
c) That the accused committed the said offence with the knowledge that by inflicting injury with a Kassi on the head of the complainant, it is likely that death may be caused or with the intention of causing such bodily injury as is likely to cause death.Sessions Case No. 58250/2016 Page 5/21
State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC
14. Actus Reus1 14.1. The actus reus in the present case is the act of the accused of hitting the complainant with a Kassi on 25.08.2015 thereby resulting into injury to the complainant and in order to prove the said actus reus, the prosecution has examined the victim/complainant Smt. Ram Pati as PW-1.
14.2. PW-1 Rampati testified with respect to the incident dated 25.08.2015 as under :-
"The accused Kamna who is present in the court today, resides in front of my house. On 25.08.2015, at about 10/11.00 am, I was cleaning the Nali in front of my house and gathered the dust in an empty plot in front of my house. There, the accused Kamna also reached with spade (Kassi) and started covering the pit with mud/soil at the time when I was gathering the dust in the pit in the above mentioned plot. I asked the accused for not covering the pit while bending. However, she did not pay any heed towards my request. As soon as I stood, the accused hit the spade (kassi) on my head two times. The neighbours gathered over there and they save me from the clutches of accused."
14.3. The witness was cross-examined at length by the Ld. Defence counsel and the relevant portion of the cross- examination is as under:-
a) "At the time of my statement, I stated to the police the fact that neighbour saved me from the clutches of accused (at this stage, the complaint Ex.Pw-1/A is read over to the 1 Action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused.Sessions Case No. 58250/2016 Page 6/21
State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC witness and she admits that the above-mentioned fact is not there."
b) "I cannot tell the length of the Kassi/fawda."
c) "I became unconscious on received the head injury at second time. I regained my consciousness after about 15-20 minutes. It is wrong to suggest that I did not become unconscious and due to this reason this fact is not mentioned in my statement Ex.Pw-1/A. It is wrong to suggest that I was not taken to any hospital."
d) "It took around 30 minutes in reaching at hospital from the spot. After about 10 minutes of my reaching at hospital, my treatment was started by the doctors."
e) "After discharge from SHM hospital, I did not go again there.
(Vol. I went to private hospital for my further treatment). I did not tell to the examining doctor about the facts. (vol. My condition was serious at that time). It is wrong to suggest that I was discharged from SGM hospital on the same day after giving my first aid as I did not receive any injury."
f) "I do not remember the names of the neigbours who saved me from the clutches of accused. It is wrong to suggest that no incident as stated by me during my examination in chief took place and due to this reason, none of the neigbours gathered at the spot at the time of incident".
g) "I did not make the call at 100 number. (Vol. One of my neighbours namely Som Dutt made the call at 100 number."
14.4. The testimony of the afore-said witness has been challenged primarily on the ground that the said witness stated that the incident took place at about 10-11 a.m and that she reached the hospital in 30 minutes, whereas as Sessions Case No. 58250/2016 Page 7/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC per the MLC Ex.PW-5/A, the time of arrival of PW-1 at the hospital is 1.59 p.m. Her testimony is further challenged on the ground that no other eye-witness could be found by the investigating agency during investigation and even she failed to disclose as to which of the neighbours saved her from the clutches of accused. It is further submitted that the said witness was unable to tell as to what was the length of the Kassi/ Fawda which was allegedly used by the accused in commission of offence and that the said Kassi/ Fawda was never recovered from the possession of or at the instance of accused during investigation. Her testimony is further challenged on the ground that she obtained treatment of her injury from a private doctor without intimating the said fact to the police as well as to the examining doctor of SGM hospital.
14.5. Before coming to the veracity of the afore-said witness, the court would like to discuss the testimony of PW-2 Dr. Balvinder Singh and PW-5 Dr. P C Prabhaker, who testified with respect to the injuries that were found on the body of PW-1 when she was medically examined. 14.6. PW-5 Dr. P.C Prabhaker, Chief Medical Officer, SGM hospital, Mangol Puri Delhi having worked with Dr. Rohit Kumar identified the signatures of the said doctor on MLC Ex.PW-5/A prepared by Dr. Rohit on 25.08.2015 as per which the patient came to the hospital herself and was found to be in conscious state having bleeding through scalp. Upon examination the complainant was found to be having a horizontal lacerated wound over scalp in coronal Sessions Case No. 58250/2016 Page 8/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC section 5 cm x .5 cm x .5 cm and mild abrasion over left arm and fore arm. The patient was advised surgery and was referred to surgical department, however the patient instead of going to the surgery department in SGM hospital went to Jainar Hospital where PW-2 Dr. Balvinder Singh examined the patient on 27.08.2015 and there she remained admitted for two days till 29.08.2015 during which NCCT head was conducted and finally in the opinion of the doctor, the nature of the injury was found to be simple. PW-2 proved the original record of admission and treatment as Ex.PW-2/A. The said witness was cross- examined and in his cross-examination he admitted that the injury received by PW-1 Rampati was not dangerous in nature though he denied the suggestion that the said injury could be caused by falling on the ground. The cross- examination of the doctor is reproduced as under:-
"The injured Rampati was conscious when she was brought to my hospital. It is correct that in my opinion, the injured did not receive dangerous injury.
It is incorrect to suggest that the injuries as was received by Smt. Rampati, could be caused while failing on ground. It is wrong to suggest that I have deposed falsely to fill up the lacuna of the prosecution case. It is wrong to suggest that injured was not required to be admitted in the hospital and merely on her asking, I admitted her in the hospital".
14.7. From the perusal of the examination-in-chief and cross-examination of the afore-said witnesses together with the MLC Ex.PW-5/A and medical record Ex.PW-2/A, it stands proved that complainant received injury on her head on 25.08.2015 which as described in the MLC was a Sessions Case No. 58250/2016 Page 9/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC horizontal lacerated wound over scalp in coronal section measuring 5cm x.5cm x.5 cm. The contents of the MLC are further supported by medical record Ex.PW-2/A wherein examining doctor i.e. PW-2 observed lacerated wound on the scalp and in the said medical record Ex.PW- 2/A he also noted that the patient had history of loss of consciousness for small time. The testimonies of the afore- said doctors i.e. PW-2 and PW-5 and the medical record Ex.PW-5/A and Ex.PW-2/A support the testimony of PW-1 to the effect that she received injury on her head on 25.08.2015 for which she went for treatment to SGM hospital and that subsequently she went to private hospital for her treatment. The medical record Ex.PW-2/A which was prepared way back in August 2015 also corroborate the testimony of PW-1 made in her cross-examination to the effect that she lost her consciousness for some time after the incident. Therefore, the medical record and the testimonies of PW-2 and PW-5 support the story of prosecution and the testimony of PW-1 as far as the injury received by her as well as the treatment received by her after the said injury, is concerned. It may be noted here that though it is correct that PW-1 stated that she was taken to the hospital in about half an hour after the incident which took place at about 10-11 a.m whereas as per the MLC Ex.PW-5/A, she reached the hospital at about 2 p.m, however the said contradiction is minor contradiction and it does not render the testimony of PW-1 unbelievable.2 2 The said contradiction is further discussed while discussing testimony of PW-3.
Sessions Case No. 58250/2016 Page 10/21State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC 14.8. Now, that in view of the afore-said testimony of PW-
2 and PW-5, it stands proved that PW-1 received lacerated wound measuring 5cm x.5cmx.5 cm on her scalp on 25.08.2015 for which she received treatment both at SGM hospital and Jainar Hospital, the next question is as to who caused the said injury?
14.9. PW-1 in her examination-in-chief, as reproduced above, categorically stated that the said injury on her head was caused by the accused by hitting her on her head with spade (kassi) as a quarrel had taken place between her and the accused over cleaning the Nali infront of the house of the complainant. Though it is correct that there is no other eye-witness to the incident and that the said spade/kassi was not recovered from the accused, however the court fails to understands as to why PW-1 who received a lacerated on her scalp as mentioned in MLC Ex. PW-5/A would falsely implicate the accused without any quarrel between her and accused. The defence taken by the accused is that the complainant is of petulant nature and used to quarrel with the neighbours on petty matters, which suggestion was also put to PW-1 though she denied the same, but even if it is so, then there must have been some quarrel between the complainant and the accused, though may be initiated by the complainant herself which resulted into the incident in question. The defence of the accused that the complainant being an arrogant lady used to quarrel with neighbours and that for fun of it, she falsely implicated the accused without any reason and without any Sessions Case No. 58250/2016 Page 11/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC previous quarrel or dispute, is quite difficult to believe. PW- 1 as stated above received lacerated wound measuring 5cmx.5cmx.5 cm on her head and court finds no reason as to why she would falsely implicate the accused and thereby save the real culprit without there being any previous enmity or cause of dispute between PW-1 and accused. Therefore, the testimony of PW-1 cannot be discharged merely on the defence taken by the accused that the complainant is of quarrelsome nature and that she falsely implicated the accused for no reason or dispute at all.
14.10. Further, the testimony of PW-1 as stated above is corroborated by the testimony of PW-2 and PW-5 as well as medical record.
Moreover, the testimony of the said witness is also supported by the testimony of PW-3 ASI Raj Kumar who testified that on 25.08.2015 he received DD no. 36 A regarding quarrel at gali no, K-2/29/52 Nihal Vihar, Delhi where he went alongwith Ct. Vikram where he was informed that the injured lady was shifted to hospital and subsequently at 1.45 p.m, another DD no. 48 B was received that the patient was not being given treatment at SGM hospital and when on the said DD PW-3 ASI Raj Kumar with Ct. Vikram went to SGM hospital, there they collected MLC of PW-1, but PW-1 was not found present there and it was subsequently that the complainant made a compliant Ex.PW-1/A on the basis of which FIR was registered.
Sessions Case No. 58250/2016 Page 12/21State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC 14.11. The said chain of events described by PW-3 supports the testimony of PW-1 that a quarrel had taken place in the gali in front of her house, in which she received injuries because of which she went to hospital for treatment and that at SGM hospital, she was medically examined and her MLC was also obtained by PW-3. The fact that she was not being treated there because of which she had to make a call to the police further explains the delay in the medical examination of PW-1 at the hospital at about 2 p.m. Therefore, testimony of PW-1 is further corroborated by PW-3 and it explains as to why the MLC was prepared at 2 p.m though the incident took place at 10-11 a.m and PW-1 was taken to the hospital immediately.
14.12. Coming to the testimony of PW-4, it is found that PW-4 SI Ram Pal Singh testified before the court that the accused joined investigation after she was granted anticipatory bail by the Hon'ble High court and she was formally arrested on 14.08.2016. PW-4 in his cross- examination admitted that no weapon of offence could be recovered in this case, however non recovery of the same is explained by the fact that the accused was granted anticipatory bail and as such her custodial interrogation could not take place. Moreover, the recovery of weapon of offence in the present case is not of much important for the reason that the weapon of offence is not unique in nature, the production of which was essential to prove or corroborate the testimony of PW-1.
Sessions Case No. 58250/2016 Page 13/21State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC 14.13. In light of the afore-said testimonies, in the opinion of the court, the prosecution proved beyond reasonable doubt the actus reus, that is the act of the accused of having hit the spade/kassi on the head of the complainant which resulted in to lacerated wound measuring 5cmx.5cmx.5 cm and for which treatment was taken by PW-1 from SGM hospital and Jainar Hospital.
15. Mens Rea3 15.1. As far as mens rea i.e. the intention or knowledge of the accused at the time of offence is concerned, the same has to be proved by the prosecution beyond reasonable doubt just like the actus reus and in order to prove the said mens rea the prosecution relies upon the testimony of PW- 1 and the relevant portion of her testimony is already reproduced above.
15.2. The question before the court is that whether from the testimony of PW-1 and from the fact that simple injury was received by the complainant on her head during the incident, it stands proved that the accused had the intention or the knowledge to commit the offence alleged i.e. offence u/s 308 IPC.
15.3. From the afore-said reproduced testimony of PW-1, it can be seen that there was a sudden quarrel between the complainant and accused over covering the pit infront of the house of the complainant and accused as the two are neighbours and that without any heated conversation 3 The intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
Sessions Case No. 58250/2016 Page 14/21State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC between PW-1 and the accused, the accused hit the spade / kassi which she was using to cover the pit with soil, on the head of PW-1 resulting into simple injury on her head. There is absolutely no exhortation/threat made by the accused at the time of commission of offence and therefore, the intention of the accused can only be judged from her conduct/act of hitting on the head of PW-1 with spade/kassi.
15.4. It may be noted that PW-1 in her examination-in-
chief, stated that while she was bending down, she asked the accused not to cover the pit with soil and as soon as she arose up, the accused hit the spade on her head. Thus as per the testimony of PW-1 she did not keep hitting the complainant on the head or other parts of the body with the said spade/kassi and from the nature of injury as mentioned by PW-2, as the nature of injury is simple, it can be inferred that the force which was used by the accused while hitting the complainant with spade / kassi was not so much so as to cause such bodily injury to the accused as may result into death or even into grievous injury. The very fact that the incident took place all of a sudden without any pre-medidation and further the fact that only one lacerated wound was found on the head of the complainant that too simple in nature establishes that the accused did not have the intention or the knowledge required for the offence punishable u/s 308 IPC. It cannot be said from the evidence on record that accused committed the said offence with the knowledge that by inflicting injury with a Sessions Case No. 58250/2016 Page 15/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC Kassi on the head of the complainant, it is likely that death may be caused or that she had the intention of causing such bodily injury as is likely to cause death. 15.5. In Vikas v. State of (NCT of Delhi), 2013 SCC OnLine Del 472 the charge sheet was filed under section 308 IPC, however, the accused were convicted for offence under section 323 IPC which order was upheld by Hon'ble High Court. The observations are as under:-
"2. The convicts have preferred Crl. A. No. 1055/2011 challenging their conviction and sentence under Section 323/34 IPC. The complainant has preferred Crl. A. No. 917/2011 challenging acquittal of the accused persons under Section 308 IPC. The victim further challenged the sentence awarded to the accused persons which was not sufficient.
3. I have heard the learned APP for the State and learned counsel for the appellants in both the appeals and have examined the Trial Court record.
4. On scrutinizing the statement of witnesses including the complainant coupled with medical evidence I find no illegality in the findings of the Trial Court whereby the accused persons were held responsible for causing injuries to Vikas in furtherance of their common intention. Complainant-Vikas has filed complaint case. Under Section 156(3) Cr. P.C., the Metropolitan Magistrate directed the police to register case under Section 308 IPC. While appearing as PW-1 the complainant categorically named the accused persons for causing injuries to him on his head with a brick. He attributed specific role to the accused persons. PW-2 (Sri Kishan), complainant's father, admitted him in AIIMS. He also deposed that the accused Sunil Kumar, Gir Raj caught hold Vikas and Nanak gave a brick blow on his head. PW-4 (Smt. Savitri), PW-5 (Ramwati) have also corroborated the oral testimony of complainant-PW-1 (Vikas). All these witnesses were cross-examined at length but no material contradictions/discrepancies emerged in their statements to disbelieve them. The accused did not deny their presence at the spot. The accused Sunil Kumar and Nanak also sustained some injuries in the incident and were medically examined. It further ensures their presence at the spot and lends credence to the Sessions Case No. 58250/2016 Page 16/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC prosecution story that a quarrel took place between the two parties on the said date. On receipt of DD No. 35A from PCR on 15.11.2005 around 05:00 A.M., PW-6 (SI Nizamuddin) reached the spot. Accused Nanak, Gir Raj and Sunil were arrested and Kalandra under Section 107/151 Cr. P.C. was prepared against them. Copies of the DD No. 35A and DD No. 4A were exhibited as Ex. PW 6/A and Ex. PW 6/B respectively. Copy of the Kalandra is exhibited as Ex. PW6/C. PW-7 (Dr. Prem Parkash) proved MLC (Ex. PW 7/A) prepared by Dr. Ram Niranjan Sharma. One injury i.e. cut and lacerated wound was found on the left temporal region. There is no conflict between the ocular and medical evidence. There was no delay in lodging the First Information Report when Kalandra under Section 107/151 Cr. P.C. was lodged soon after the incident. The complainant was taken to AIIMS and was medically examined at 05:17 A.M. i.e. within half hour of the occurrence. Injuries were opined simple caused by blunt object. Injuries sustained by Sunil Kumar and Nanak were only abrasion and were possible during quarrel. On appreciating the evidence, the Trial Court held the accused persons perpetrators of the crime. I find no reasons to deviate from these findings. The Trial Court has convicted the accused, and rightly, under Section 323 IPC. Admittedly, the complainant and the accused persons were close relatives. They were residing in the same premises. It is undisputed that property dispute was going on between them and civil litigation was pending about the partition of the property. The quarrel had taken place over a trivial issue when the motor-cycle was parked in the passage by complainant's relative. The accused persons were not armed with any deadly weapons. Only a single brick blow was inflicted on the temporal region of the complainant and as per the MLC (Ex. PW-7/A) it was a mere cut and lacerated wound. Its dimensions were not given in the MLC. Within a few hours the complainant was discharged from the hospital. He was not admitted for medical treatment for the injuries sustained by him. It is not clear from where the brick was taken to inflict injury. The brick was not seized from the spot. No attempt was made to inflict repeated blows with the brick. No harm was caused to any other family member of the complainant who reached the spot. All these facts and circumstances categorically rule out that there was intention of the accused persons to cause injuries which could be fatal. PW-7 (Dr. Prem Prakash) in the Sessions Case No. 58250/2016 Page 17/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC cross-examination stated that normally an injury of this nature would not cause death." (emphasis supplied) 15.6. In a recent case titled State v. Sultani and Others 2019 SCC OnLine Del 6706 the accused were charged for offences under sections 452/34, 308/34 and 506/34 IPC and upon the conclusion of trial, the Sessions Court acquitted the accused persons. In Appeal Hon'ble High Court set aside the acquittal and convicted the accused for offence under section 325. The observations being relevant are reproduced as under:-
"4. The case concerns alleged assault on the person of Sabia (PW-1) by the third respondent Mohd. Aslam (A-3) with the intent to outrage her modesty sometime around 12 O'clock noon time on 27.10.2000 on the top terrace of property described as No. 1530 Chitli Qabar, Turkman Gate, Delhi. It also involves physical assault on the person of her husband Mohd. Islam (PW-2) by A-3, and his brother, the first respondent Sultani (A-1) and nephew second respondent Naseem (A-2), iron rod (sariya) having been used therein causing grievous injury allegedly with the requisite intent and knowledge thereby committing the attempt of offence of culpable homicide not amounting to murder, threatening words having been uttered so as to amount to criminal intimidation, the said offences having been committed after criminal house trespass on the terrace of the said property, this part of the incident having occurred immediately and in continuation of the assault with the intent to outrage modesty of PW-1.
........
7. There is sufficient evidence to show that PW-2 was brought to Lok Nayak Jai Prakash Narayan Hospital in injured state at 12.30 p.m. on 27.10.2000 and he being medically examined by Dr. Shikha Mittal (PW-10/PW-12), senior resident at Guru Nanak Eye Centre where PW-2 had been referred, the observations on the basis of medical examination having been recorded in the medico legal injury register (MLC) (Ex.PW-9/A), the same having been proved by PW-10/12 without any contest. The MLC (Ex.PW-9/A) also bears an endorsement in the hand of Dr. Shailley Jain (PW-
11), another senior resident (Ophthalmology) of the same Sessions Case No. 58250/2016 Page 18/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC hospital, the evidence of the said two witnesses read alongside the MLC, revealing that besides a lacerated wound on the web space between thumb and forefinger of the left hand, there was a lacerated wound blacking out the right eye of PW-2, there being fresh injuries suffered in the assault with use of an iron rod.
8. PW-2, the victim, during the course of his testimony deposed that his right eye had been "destroyed" and an artificial eye had been planted in its place. His deposition to this effect, read in the light of the MLC, both unchallenged on this score, clearly make out a case of loss of sight in one eye rendering it to be a case of grievous injury, the only contest being with regard to the role attributed to the respondents, suggestions given at their instance to the relevant witnesses during their cross-examination being that the injury might have been suffered on account of a fall. It may be mentioned here itself that while PW-11 would not give a clear reply as to the possibility of fall being the cause for such injury, she being unable to do so "without examining the case". PW-12 was more in doubt by stating that it was difficult to say that fall on the ground could be the cause.
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31. The learned trial court did not appreciate the evidence in proper perspective by observing that the nature of injuries suffered by PW-2 did not have corroboration from the medical evidence. The blunt injury inflicted in the right eye was duly noted in the MLC (Ex.PW-9/A). There is an opinion recorded that the injury suffered was grievous. The deposition of PW-2, as noted earlier, that this injury had resulted in total loss of right eye, artificial eye having been planted, has gone unimpeached. In these circumstances, there is no escape from the conclusion that the injury inflicted was grievous in nature. ..........
39. This court is satisfied that the prosecution has proved that A-3 had accosted PW-1 on the top terrace of her house around noon time on 27.10.2000 when she was present there to put the washing in the sun. He had climbed on to the terrace with the intent to molest her. This amounted to a criminal trespass punishable under Section 452 IPC. He caught hold of her with clear intent to outrage her modesty, this constituting offence punishable under Section 354 IPC. When she cried out and protested, her husband (PW-2) appearing on the scene, A-3 Sessions Case No. 58250/2016 Page 19/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC was joined by A-1. They (A-3 and A-1) together assaulted PW- 2 wherein A-1 was holding on to PW-2 and A-3 had picked up a sariya using it to inflict the two injuries. In this sequence, however, it cannot be said that the intention was to cause death or such injuries as were likely to cause death, there being nothing to show that the blows (with the iron rod) were designedly aimed, particularly at such part of the body as was likely to result in injuries that could prove fatal. In this fact-situation, it would not be permissible to return a finding that the charge of attempt to commit culpable homicide not amounting to murder (punishable under Section 308 IPC) had been brought home. But, there is no doubt that the injuries inflicted were intended and voluntarily caused by A-3, his brother A-1 acting in his aid and assistance, his conduct of holding on to PW-2 reflecting he having shared the common intention. The injuries inflicted included wounding of the right eye rendering PW-2 permanently blind in that eye. Since the weapon of offence used in the crime was sariya, the acts of commission indulged in by A-1 and A-3 constitute the offence of voluntarily causing grievous hurt punishable under Section 325 IPC, both of them having shared common intention in such regard.
40. The offence under Section 325 IPC being a minor offence, it being included in the offence under Section 308 IPC within the meaning of Section 222 Cr.P.C., A-1 and A-3 can be held guilty and convicted under Section 325 read with Section 34 IPC even though no formal charge to that effect had been framed against them." (emphasis supplied) 15.7. In light of the aforesaid judgments and discussion the accused cannot be held guilty for offence under section 308 IPC.
15.8. However, at the same time, as simple injury is caused to the complainant, hence, offence u/s 323 IPC is made out against the accused as the accused voluntarily caused simple hurt on the person of the complainant and as such she is liable for having voluntarily caused hurt to Sessions Case No. 58250/2016 Page 20/21 State Vs Kamna FIR No. 808/2015 PS Nihal Vihar U/s 308 IPC 4 the complainant as defined in section 321 IPC punishable u/s 323 IPC. The offence under Section 323 IPC being a minor offence, it being included in the offence under Section 308 IPC within the meaning of Section 222 Cr.P.C., accused can be held guilty and convicted under Section 323 IPC even though no formal charge to that effect had been framed against her.
16. FINAL ORDER In view of above-discussed propositions of law, facts and circumstances, accused Kamna is held guilty and stands convicted for the offence punishable under Section 323 IPC. However, the accused is held not guilty for commission of offence under section 308 IPC.
17. Let the convict be heard on the point of sentence with respect to offence under section 323 IPC on 31/08/2019 at 2 PM.
(Pronounced in the open
Court on 29.08.2019) (S.P.S Laler)
Additional Sessions Judge (Pilot Court)
West:Court No. 33: Tis Hazari Courts Delhi 4 321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
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