Delhi District Court
State vs Ravinder @ Sushi on 19 December, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL, TIS HAZARI
COURTS, DELHI
SC No.338/2017
FIR No.04/2017
U/s 397/392/394/324/34 IPC
P. S. Sadar Bazar
STATE VERSUS RAVINDER @ SUSHI
(i) SC No. of the case : 338/2017
(ii) Date of commission of offence : 06-07/01/2017
(iii) Name, parentage and address : Ravinder @ Sushi
of accused S/o Sh. Lala Ram
R/o Tosham By
Pass Near Birla
Chowki
Bhawani Haryana.
(iv) Offences complained of : 397/392/394/324/34
IPC
(v) Plea of the accused : Not guilty
(vi) Final order : Held Convicted
under Section 324
IPC
(vii) Date of such order : 19.12.2023
Date of Institution : 26.04.2017
Date of Judgment reserved on : 01.12.2023
State vs. Ravinder @ Sushi Page 1 of 41
FIR No.04/2017
P. S. Sadar Bazar
Date of Judgment : 19.12.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of complainant / informant Sh. Sanjay dated 07.01.2017. The victim Santosh Kumar is dumb and informed the IO through indications that accused Ravinder had shown him knife at Qutub Pul and two more accomplice of the accused had taken out Rs.2000/- from the pocket of his shirt and a mobile phone of make Samsung was robbed from right pocket of pant of the victim. When the victim/PW-12 Sh. Santosh Kumar tried to run after them then the accused Ravinder had hit the victim with a knife.
2. The complainant is Sh. Sanjay /PW-2 has stated that he is driving a rickshaw at Sadar Bazar Delhi. On the night of 06-
07/01/2017 around 3.00 A.M. he and Inderjeet /PW-10 had lit a fire and warming them. They were talking with each other then from Sadar Bazar Market Qutab Chowk one battery rickshaw was coming behind which a man was running crying. The man who was running behind battery rickshaw was trying to pull down a person from the rickshaw and he was running along the State vs. Ravinder @ Sushi Page 2 of 41 FIR No.04/2017 P. S. Sadar Bazar rickshaw. After seeing and hearing all this PW-2 and PW-10 came on the road. The victim PW-12 had indicated towards PW-2 and PW-10 that the person sitting in the electric rickshaw had snatched his mobile phone and money on which PW-2 and PW-10 tried to catch the boys in the electric rickshaw. The two boys in the electric rickshaw had successfully escaped towards Nabi Karim. However, one boy who was caught hold by the dumb victim PW-12 was further helped to be caught by PW-2 and PW-10. The boy who was caught is the accused Ravinder who suddenly took out a cutter type knife from his jacket and hit the complainant Sanjay /PW-2 two- three times on which injuries had occurred behind left ear of PW-2. The shirt of parrot colour of PW-2 was got torn from side and abdomen and blood started coming out. Few auto rickshaw had also stopped who had also beaten the accused Ravinder. The dumb victim Sh Santosh had indicated through signs that the accused with his two accomplice had robbed him on knife point. The PW-2 had snatched knife from the accused and gave it to the police. PW-3 HC Vinod and Ct Sanjay were on patrolling duty and they had noticed that 3-4 persons had got caught of one boy opposite Kirorimal School, Qutub Road. After hearing all the incident they had seen that one person/PW-2 was bleeding behind the left ear who was a rickshaw puller and he used to sleep in State vs. Ravinder @ Sushi Page 3 of 41 FIR No.04/2017 P. S. Sadar Bazar rickshaw. PW-3 alongwith Ct. Sanjay had on inquiry found that the accused is a resident of Bhiwani Haryana. PW-3 had received the cutter/ knife from PW-2 Sanjay. PW-3 gave information at the PS on which IO/SI Prakash /PW-9 reached at the spot alongwith Ct. Ajit/PW-6. The knife and accused were handed over by PW-3 to SI Prakash/PW-9 on which the statement of PW-2 Sanjay was recorded and site plan was prepared at the instance of PW-2. Ct. Sanjay /PW-4 went to the Police Station alongwith rukka on which FIR Ex.PW5/B was registered. Ct. Ajit took the injured Sanjay to the hospital for medical treatment. Original Tehrir and copy of FIR was handed over to PW-9 SI Prakash after which the accused was arrested vide memo Ex.PW2/F and his personal search was conducted vide Ex.PW2/G. The disclosure statement of accused is Ex.PW2/H. The site plan is Ex.PW2/B was prepared at the instance of PW-2 Sh. Sanjay where the accused was apprehended and another site plan which is Ex.PW2/E was prepared on pointing out of PW-12 Sh. Santosh Kumar where PW-12 was actually robbed by the accused persons. Only one of the accused could be apprehended by the police during investigation. The cutter type knife which was seized as Ex.P-1 and the parrot colour shirt of PW-2 torn from abdomen had brown stains on collar and front side. The brown stains are State vs. Ravinder @ Sushi Page 4 of 41 FIR No.04/2017 P. S. Sadar Bazar claimed of blood which came out when PW-2 was injured on left side of neck and abdomen by the accused with the cutter knife. The torn shirt was seized vide memo Ex.PW3/A. The sketch of knife is Ex.PW2/A which was seized vide memo Ex.PW4/B. The accused pointed out spot of occurrence where robbery was committed which is Ex.PW3/B.
3. The accused Ravinder was charged under Section 392/34 IPC and also separately charged under Section 397 IPC. The accused was further charged under Section 324/34 IPC and the charge is dated 29.11.2017. The prosecution had examined PW- 1 to PW-12. Statement of accused under Section 313 Cr.P. C was recorded on 22.01.2023. Accused did not lead any evidence in defence. A supplementary statement of accused was also recorded on 08.08.2023 in which statement also accused preferred not to lead any evidence in defence.
4. Parties are heard and record perused.
5. The prosecution has to prove ingredients under Section 392/34 IPC read with Section 397 IPC. As per the case of the prosecution the offence under above provision was committed by the accused against the victim / PW-12 Sh. Santosh Kumar.
6. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either State vs. Ravinder @ Sushi Page 5 of 41 FIR No.04/2017 P. S. Sadar Bazar committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of State vs. Ravinder @ Sushi Page 6 of 41 FIR No.04/2017 P. S. Sadar Bazar dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1- 1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall State vs. Ravinder @ Sushi Page 7 of 41 FIR No.04/2017 P. S. Sadar Bazar be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly State vs. Ravinder @ Sushi Page 8 of 41 FIR No.04/2017 P. S. Sadar Bazar weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so State vs. Ravinder @ Sushi Page 9 of 41 FIR No.04/2017 P. S. Sadar Bazar committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits State vs. Ravinder @ Sushi Page 10 of 41 FIR No.04/2017 P. S. Sadar Bazar to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397.State vs. Ravinder @ Sushi Page 11 of 41 FIR No.04/2017
P. S. Sadar Bazar So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of State vs. Ravinder @ Sushi Page 12 of 41 FIR No.04/2017 P. S. Sadar Bazar Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the State vs. Ravinder @ Sushi Page 13 of 41 FIR No.04/2017 P. S. Sadar Bazar particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-
accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
7. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an State vs. Ravinder @ Sushi Page 14 of 41 FIR No.04/2017 P. S. Sadar Bazar aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
State vs. Ravinder @ Sushi Page 15 of 41 FIR No.04/2017P. S. Sadar Bazar
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
State vs. Ravinder @ Sushi Page 16 of 41 FIR No.04/2017P. S. Sadar Bazar
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right State vs. Ravinder @ Sushi Page 17 of 41 FIR No.04/2017 P. S. Sadar Bazar arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine- tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for. xxxxxxx
8. Hence, the prosecution has to prove the necessary ingredients laid down for the offence of robbery as the number of persons involved are less than 5. In the present case only one of the accused was arrested and two of the accused have allegedly ran away. It is submitted by learned Counsel for the State vs. Ravinder @ Sushi Page 18 of 41 FIR No.04/2017 P. S. Sadar Bazar accused that only one person was caught who was falsely implicated and there was no other person. However, PW-2, PW- 10 and PW-12 are eye witness to the case. PW-12 is the eye witness to the robbery committed against him before coming into picture of PW-2 and PW-10. PW-2, PW-10 and PW-12 all are eye witness to the effect of running by PW-12 behind electric rickshaw when PW-12 was catching hold of the accused Ravinder and PW-2 and PW-10 had tried to nab the remaining two accused who ran away from the spot. It is deposed by PW-2 that on 06.01.2017 at about 3.00 A.M. he alongwith PW-10 were warming their hands sitting near fire at the garage. When they were talking with each other then they saw one battery rickshaw coming from the side of Qutab Road and was heading towards New Delhi Railway Station near Nabi Karim then one dumb person was running after the said rickshaw who raised alarm while holding hand of one of the accused sitting in the rickshaw. It is deposed that he also caught hold of the person sitting in the rickshaw caught by the dumb person. 2- 3 person sitting in electric rickshaw ran away. Accused Ravinder was correctly identified before the court by PW-2. In cross examination, PW-2 has deposed that there were 3 persons including driver in e-ricksaw hence the deposition of PW-2 as to the number of offenders which are 3 is consistent with the case State vs. Ravinder @ Sushi Page 19 of 41 FIR No.04/2017 P. S. Sadar Bazar of the prosecution. PW-10 had deposed that the incident had occurred in the year 2017 when he and PW-2 with 2-3 other person were sitting in front of garage warming themselves in bonfire. After 12 midnight he saw one dumb person coming from Qutab Road side towards New Delhi Road while chasing e-ricksaw in which 2-3 boys were sitting. They managed to arrest one of the boy however 3 boys had escaped. The accused Ravinder had paper cutter knife. PW-10 had correctly identified the accused Ravinder before the Court. PW-12 had deposed that it was 7.00 A.M. then again said that it was 11.36 A.M. when two person came and caught hold of him and the other person put knife on his stomach. PW-12 could not identify the accused as he had not seen his face. It is denied in cross examination by Learned APP for the State that there were 3 accused. Hence the PW-12 had turned totally hostile against the case of the prosecution. It is deposed by PW-12 that both the accused had snatched his mobile phone and Rs.2300/- at knife point. Hence, PW-12 has turned totally hostile to the time of occurring of offence and not only that he has turned hostile to the fact of total amount of money snatched from him. He has stated in his complaint Ex.PW11/A that Rs.2000/- was snatched from him wherein in his deposition as PW-12 it is stated that Rs.2300/- was snatched from him. Further PW-12 has failed to produce on State vs. Ravinder @ Sushi Page 20 of 41 FIR No.04/2017 P. S. Sadar Bazar record the invoice of the Samsung Mobile Phone alleged robbed from him. The remaining two accused are also not arrested in this matter. The case property was also not recovered which are Rs.2000/- and Samsung Mobile Phone. Hence, the case property is unproved on record if at all belongs to the victim/ PW-12. In the absence of recovery of case property it cannot be said that the case property was snatched from the PW-12 in view of his contradictory claim that at one time Rs.2000/- was stolen from him and in his deposition before the court it is claimed that Rs.2300/- was stolen from him. PW-12 in his complaint Ex.PW11/A has stated that 3 people were there. However, in this deposition before the court he has stated that 2 people were there who allegedly robbed him. Hence the number of persons who robbed PW-12 is also doubtful. Hence the prosecution has failed to prove the number of persons actually robbed PW-12 and also failed to prove what were the articles robbed from PW-12 at the place mentioned in Site Plan Ex.PW2/E. Further, the word used under Section 392 IPC and Section 397 IPC is offender and therefore the accused cannot be convicted under the said offence on the basis constructive liability. Each accused is separately liable for their act under Section 392 IPC and Section 397 IPC. Hence it is held that section 34 IPC is not applicable to the offence under Section State vs. Ravinder @ Sushi Page 21 of 41 FIR No.04/2017 P. S. Sadar Bazar 392 IPC. Hence it is held that Section 34 IPC is not attracted against the accused while charging him under Section 392 IPC and Section 397 IPC.
9. Since the prosecution has failed to prove the act of robbery committed by the accused person against PW-12 as per the spot detailed in site plan Ex.PW2/E and further that grievous hurt is not proved if it was inflicted at all on PW-12. PW-12 has nowhere deposed that he had sustained grievous hurt in the alleged incident and hence the prosecution is held to have failed to prove the ingredients under Section 397 IPC against the accused persons. PW-12 has also not deposed that hurt was caused to him. PW-12 has also not identified the accused before the Court. There is only one MLC available on record which is Ex.PW1/A = Ex.PW8/A which pertains to PW-2, the complainant and not to the victim / PW-12. Hence, any kind of hurt is also not proved on record to PW-12.
10. Immediately after the incident paper cutter knife was recovered from the accused, sketch of which is Ex.PW2/A. PW- 2 has deposed that he had not seen the accused committing robbery and similarly PW-12 had not seen the accused committing robbery. However, at the second place where the accused Ravinder was arrested as per site plan Ex.PW2/E the PW-2 caught hold of accused with the assistance of PW-10 and State vs. Ravinder @ Sushi Page 22 of 41 FIR No.04/2017 P. S. Sadar Bazar PW-12 and overpowered the accused Ravinder. PW-2 had snatched the paper cutter knife from accused Ravinder which was handed over by him to the police vide seizure memo Ex.PW2/B. Since immediately after the incident paper cutter knife was recovered from the possession of accused Ravinder which is found consistent in the statements of PW-2, PW-10 and PW-12 it proves that accused Ravinder had taken paper cutter knife with him at the relevant time when the alleged offence was committed at the spot mentioned in Ex.PW2/E and also where the accused Ravinder was arrested vide site plan Ex.PW2/E. However, seizure of paper cutter knife alone is one of the ingredient of the offence of robbery. However other ingredients of the offence of robbery are not satisfied and therefore it cannot be said that accused Ravinder with alleged two other absconding accomplice had caused the offence of robbery either under Section 392/34 IPC or under Section 397 IPC. The articles robbed are not recovered. No injury on PW-12 is proved. PW-12 the sole eye witness to robbery has turned hostile. Hence it is held that the prosecution has failed to prove the charge against the accused Ravinder Section 392/34 IPC or section 397 IPC and therefore the accused Ravinder is acquitted of both the above offence.
11. The accused Ravinder is further charged under Section State vs. Ravinder @ Sushi Page 23 of 41 FIR No.04/2017 P. S. Sadar Bazar 324/34 IPC. To bring home the ingredients of above offence the prosecution has to meet the parameters laid down in citation mentioned below.
Vijay Vs State of Madhya Pradesh from Hon'ble Madhya Pradesh High Court in CRIMINAL APPEAL No. 10693 of 2023 dated 12.09.2023 has held as under:
18.The next point which is falling for consideration is as to whether the aforesaid offence was committed by the accused Vijay jointly or in furtherance of common intention? In this regard the following observation of Hon'ble Supreme Court in Ramesh Singh @ Photti Vs. State of Uttar Pradesh (2004) 11 SCC. "As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common State vs. Ravinder @ Sushi Page 24 of 41 FIR No.04/2017 P. S. Sadar Bazar intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted."
19. Endorsing the aforesaid legal proposition, in the case of Balveer Singh Vs. State of Madhya Pradesh AIR 2019 SC 2983 Hon'ble Apex Court observed as under:-
"To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (
i) there was common intention on the part of several persons to commit a particular crime, and ( ii) the crime was actually committed by them in furtherance of that common intention.
The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the prearranged plan. Criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of common intention, each person is liable for the offence as if he has committed the offence by himself."
20.In view of the aforesaid legal position, the evidence available on record has been examined. As per the testimony of injured witness Dilip (PW-1), Vikas (PW-2), it is revealed that the role of appellant Vijay is only to reach the place of incident and thereafter cooperating another accused Mukesh in causing injury with kicks and fists. Suddenly, accused Mukesh has assaulted with knife upon the injured persons but it cannot be assumed that it was a pre-medit ated, preplanned or pre-arranged incident. In this regard, the genesis of crime is also required to be explored in respect of this incident. There is nothing on record which suggests that State vs. Ravinder @ Sushi Page 25 of 41 FIR No.04/2017 P. S. Sadar Bazar there was an animosity between the accused Vijay and complainant party. Nevertheless, as per the statement of inured Vikas, accused Vijay has used kicks and fists on the basis of this act, it cannot be envisaged that there was a pre- arranged plan for causing injury with knife between the accused Mukesh and Vijay. Therefore, it is not established beyond the reasonable doubt that the appellant Vijay has developed any common intention for causing injury to injured persons and in furtherance of that, the appellant Mukesh has assaulted both the injured with knife.
21.In these circumstances, it can be held that accused Vijay was certainly present with the main accused Mukesh but they have not premeditated, preplanned or prearranged the scene of crime regarding causing injury with knife. Accordingly, the appellant Vijay cannot be held liable for causing injury with knife to the inured persons. At the most, he may only be liable for causing injury by kicks and fists to Vikas and therefore, he may be convicted only for the offence punishable under Section 323 of IPC for causing injury to the injured Vikas. Whereas, the prosecution succeeds to prove its case against appellant Mukesh beyond the reasonable doubt that he has caused simple injury to complainant Dilip and Vikas using sharp edged knife and therefore, he is entitled to be convicted for the offence punishable under Section 324/34 (two counts) of IPC.
12. The prosecution has to establish that there was common intention between all the accused while inflicting paper cutter knife injury on PW-2 / injured. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. It has to be inferred from the conduct of the accused, manner in which the accused arrived at the scene, State vs. Ravinder @ Sushi Page 26 of 41 FIR No.04/2017 P. S. Sadar Bazar mounted the attack, determination and concert with which the attack was made, nature of injury caused, subsequent conduct. Illegal omission on the part of such accused can indicate sharing of common intention. Totality of circumstances must be taken into consideration. The essence is simultaneous conscious mind of the persons participating in the criminal action to bring about a particular result. An odd act must be established qua each of the accused. Common intention implies prearranged plan and acting in concert pursuant to the prearranged plan.
13. In the present case, the joint reading of statements of PW-
2, PW-10 & PW-12 proves that 2 of the accused had managed to flea from the spot. Further one of the accused Ravinder @ Sushi was caught at the spot mentioned in site plan Ex.PW2/D where the accused was apprehended. The witnesses above have deposed that accused Ravinder had caused injury on PW-2 by a paper cutter knife on the left side/hand stomach. The accused Ravinder is correctly identified by PW-2 and PW-10. PW-2 had deposed that accused Ravinder had taken out one paper cutter knife and stabbed PW-2 on the back side of his left ear. Accused Ravinder again stabbed on stomach of PW-2 which PW-2 saved and in the process the shirt of PW-2 was torn from the knife from the abdomen area and minor scratch of knife on the abdomen was received by PW-2. This is also corroborated by State vs. Ravinder @ Sushi Page 27 of 41 FIR No.04/2017 P. S. Sadar Bazar deposition of PW-10. It is consistently deposed that accused Ravinder has caused injury on PW-2. It is deposed by PW-10 in the cross examination that they had snatched the paper cutter knife from the hand of accused Ravinder and handed over the said knife to the police at the spot detailed in site plan Ex.PW2/D. PW-2 was wearing blue pant. The parrot colour shirt of PW-2 which was torn at abdomen is proved by the prosecution as Ex.P-2. The shirt bears brown stains on its collar and front side which are claimed that of blood. PW-2 had correctly identified the shirt that he was wearing it at the time of incident and the brown stains are of blood came out from his back side of left ear due to injury caused by the accused Ravinder vide paper cutter knife. Sketch of which is Ex.PW2/A. The paper cutter knife was taken possession of by PW-2 from accused Ravinder at the spot and later handed over to IO is Ex.P-1.
14. Now it has come on record that when the said paper cutter knife was used by the accused Ravinder against PW-2 then at that time his remaining two accomplice had already escaped from the spot. At that time when the two remaining accomplice were escaping the accused Ravinder did not have paper cutter knife in his hand. When the accused Ravinder was caught hold of by PW-2, PW-10 and PW-12 and when the State vs. Ravinder @ Sushi Page 28 of 41 FIR No.04/2017 P. S. Sadar Bazar remaining accomplice had already escaped the accused Ravinder had suddenly taken out the paper cutter knife due to which it cannot be said that there was sharing of any common intention between the accused and his escaped accomplice to invite Section 34 IPC. Sharing of common intention is absent between the accused and his accomplice qua each other as a prearranged plan or acting in concert to such prearranged plan. The assault was sudden and it cannot be assumed to be premeditated or prearranged incident. There was no prior animosity between the parties. Hence the prosecution has failed to prove beyond reasonable doubt that there was common intention between the accused and his accomplice to invite Section 34 IPC and hence the accused Ravinder @ Sushi is acquitted under Section 34 IPC.
15. Now it has to be seen that whether the accused has committed offence under Section 324 IPC evidence of which is part discussed in above paras. The law in this regard is laid down in the case titled as Anuj Singh @ Ramanuj Singh @ Sethi vs. The State of Bihar. The relevant paras are reproduced as under:
Anuj Singh@ Ramanuj Singh@ Seth ... vs The State Of Bihar on 22 April, 2022 =(2022) 04 SC CK 0071 fron Hon'ble Supreme Court of India in Criminal Appeal No.150/2020 has held as under:
16. A bare perusal of the deposition of the witnesses prove that the two appellants, Anuj Singh and Manoj Singh were State vs. Ravinder @ Sushi Page 29 of 41 FIR No.04/2017 P. S. Sadar Bazar present at the place of occurrence with a firearm and injury has been caused to the informant PW-6 due to the act of the Appellants. The defence of plea of alibi taken by appellant Manoj Singh that he was posted at Islampur Block does not inspire confidence as there is no attendance register maintained by the office and the prosecution witness has categorically stated that the Appellant, Manoj Singh was present at the place of occurrence.
17. It is not disputed that there are minor contradictions with respect to the time of the occurrence or injuries attributed on hand or foot but the constant narrative of the witnesses is that the appellants were present at the place of occurrence armed with guns and they caused the injury on informant PW-6. However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omission as observed by this court in Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (2000) 8 SCC 457. This Court while considering the issue of contradictions in the testimony, while appreciating the evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Relevant portion of para 42 of the judgment reads as under:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no State vs. Ravinder @ Sushi Page 30 of 41 FIR No.04/2017 P. S. Sadar Bazar ground to reject the whole of the testimony of such witness."
18. The evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged. In the case at hand, PW-8, Dr. Himkar who examined the informant PW-6 has clearly stated that all the injuries attributed on the informant were caused by firearms and that tattooing may not appear over the wound (injured area) if a person fires from 6-7 ft.
19. A detailed examination of prosecution witnesses clearly establishes:
i. That there was altercation between Informant PW-8 and the two appellants Anuj Singh and Manoj Singh with respect to preventing the Informant Pw-8 from repairing his wall. ii. All the witnesses unequivocally confirmed the presence of the two appellants at the place of occurrence on 10.10.1999.
iii. All the eyewitness have confirmed that the two appellants Anuj Singh and Manoj Singh were armed with firearm. iv. The medical evidence of PW-8, Dr. Himkar corroborates that injuries inflicted on the Informant PW-8 were firearm injuries.
v. Injuries were inflicted on the non-vital part of the body of the Informant PW-8.
20. It is a well-known fact that the term "hurt" simply means performing an act which leads to physical pain, injury or any disease to a person. At times, hurt may be caused voluntarily or it can by caused by using dangerous weapons or mean. A person will be liable to have caused hurt voluntarily through State vs. Ravinder @ Sushi Page 31 of 41 FIR No.04/2017 P. S. Sadar Bazar dangerous weapons and means under Section 324 IPC which reads as under:-
"324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
21. To establish an offence under Sec 324 IPC, the presence of following ingredients is a must which are as follows:-
1. Voluntary hurt caused to another person by the accused, and
2. Such hurt was caused:
a. By any instrument used for shooting, cutting or stabbing, or any other instrument likely to cause death, or b. By fire or other heated instruments, or c. By poison or other corrosive substance, or d. By any explosive substance, or e. By a substance that is dangerous for the human body to swallow, inhale, or receive through blood, or f. By an animal.
When a person commits an offence of voluntarily causing hurt by dangerous weapons and means under Section 324 of Indian Penal Code, then such person shall be punished with imprisonment for a period of three years, or with fine.
22. In the case at hand, it is evident from the evidence of prosecution witnesses that the two appellants have caused hurt on the body of the informant, PW-8 by using firearm on account of an altercation which took place between the State vs. Ravinder @ Sushi Page 32 of 41 FIR No.04/2017 P. S. Sadar Bazar appellants and the informant PW-8. It also stands corroborated from the evidence of the prosecution witness that there existed previous enmity between the parties due to a land dispute and the same can be perceived from their acts. Thus, the charge of Section 324 IPC stands established against the two appellants. Once the charge against the appellants under Section 324 IPC of voluntarily causing injuries by firearm, which is a dangerous weapon stands established, they cannot escape the punishment for using arms prescribed by Section 27 of the Arms Act.
16. The first ingredient the prosecution has to satisfy that the accused had caused voluntary hurt to another person. It is deposed by PW-2 that when PW-2, PW-10 & PW-12 have together caught hold of the accused and the accused was pulled out by PW-12 from electric rickshaw. The electric rickshaw had escaped with two of the remaining accused person. At that time the accused Ravinder @ Sushi had taken out a cutter type knife and stabbed PW-2 on the backside of his left ear. The MLC is Ex.PW1/A and PW1 Dr. Amit Sharma had deposed that he had medically examined PW-2 Sanjay with history of physical assault. He had cleaned lacerated wound on the backside of neck of PW-2 ad-measuring 2x3 cm behind left ear and another wound minor in size on the left side of the abdomen. He had identified his signatures at point A in MLC Ex.PW1/A. The shirt of PW-2 was sealed by the Doctor and handed over to the Duty Constable. The nature of weapon used is described as sharp. Hence, PW-1 has proved injury on PW-2 at two places State vs. Ravinder @ Sushi Page 33 of 41 FIR No.04/2017 P. S. Sadar Bazar discussed above. The PW-2 had deposed that the knife was cutter type knife and sketch of knife is ExPW2/A which bears thumb impression of PW-2 at point A. The knife was seized vide seizure memo Ex.PW2/B and PW-2 gave his statement to police vide ExPW2/C. The site plan at which this two knife cut was given to PW-2 is Ex.PW2/D and accused was arrested by the police at the spot when PW-2, PW-10 and PW-12 have together handed over the accused to the police. Police had arrested the accused vide arrest memo Ex.PW2/F at the spot and personal search memo of accused is Ex.PW2/G. The disclosure statement of accused is Ex.PW2/H. The cutter type knife was produced physically before the Court having yellow handle which is Ex.P-1. All the memos bear signature of PW-2 at point A. The accused and the cutter type knife is correctly identified by PW-2 during deposition. The parrot colour shirt which was torn by the side of abdomen bearing brown stains which were of blood on the collar and the front side is Ex.P-2. It was so deposed by PW-2. Learned Counsel for the accused has submitted that it is not proved by the prosecution on record that the blood on the shirt was human blood and this blood belongs to PW-2. The above contention cannot be sustained in view of the consistent deposition of PW-2, PW-10 and PW-12 that accused had hit PW-2 with the cutter type knife. The PW-10 had State vs. Ravinder @ Sushi Page 34 of 41 FIR No.04/2017 P. S. Sadar Bazar deposed that such injury on PW-2 was inflicted by accused by paper cutter knife at neck and stomach and thereafter the accused was overpowered by them. The same is the deposition of PW-12. Hence, the injury was seen to be inflicted by PW-2, PW-10 and PW-12 and PW-2 is injured himself who had no prior animosity with the accused. They had seen that blood was coming out from the neck and stomach of PW-2 and which went into the shirt of PW-2. It is proved on record and correctly identified by PW-2. Knife is correctly identified by PW-2 and PW-10. Hence, the blood / brown stains reflected on the shirt produced on record as Ex.P-2 is the blood of PW-2 which is sufficiently proved by the prosecution on the record. Immediately after the incident PW-3 HC Vinod had reached at the spot with Ct. Sanjay / PW-4 and had seen that the accused was caught hold of by 3-4 persons opposite Kirorimal College, Qutab Road around 3.00 A.M. on 07.01.2017. PW-2 Sh. Sanjay had apprehended the said accused and during overpowering the accused Ravinder the cutter type knife was removed from the hand of accused Ravinder and thereafter handed over the cutter type knife to PW-3 & PW-4, the police officials. Hence, immediately after the incident, the police reached there and had seen the cut marks on neck and abdomen of PW-2 with torn shirt Ex.P-2 having blood stained marks. The learned Counsel State vs. Ravinder @ Sushi Page 35 of 41 FIR No.04/2017 P. S. Sadar Bazar for the accused has submitted that finger prints on the cutter type knife was not proved by the prosecution on record. The above submission is of no relevance and stands rejected in view of the fact that the accused was seen using the cutter type knife at the spot and accused inflicted injuries on PW-2. The finger print would be relevant had there been recovery of weapon at the later stage of case whereas in the present case the weapon of offence was recovered immediately at the spot from the hands of the accused by PW-2. Even otherwise under Section 324 IPC the prosecution need not examine Doctor to prove the injury which was so held in case titled State Of Kerala vs Haridasan on 30 November, 1977 Equivalent citations: 1978 CriLJ 1204 wherein Hon'ble Kerala High Court has laid down as under:
6. The learned Sessions Judge misguided himself and proceeded on a wrong premise. He has omitted to note that neither the Indian Penal Code nor the Code of Criminal Procedure nor the Indian Evidence Act insists that there should be the opinion of a medical officer as a condition precedent for convicting a person for an offence under Section 324 I.P.C. Section 324 I.P.C.
stresses more on the nature of the weapon than on the form or gravity of the injury. The weapon referred to therein is "any instrument for shooting, stabbing or cutting, or any instrument, used as a weapon of offence, is likely to cause death." The Code of Criminal Procedure does not contain any provision which makes the evidence of a medical officer as to the nature of a particular injury indispensable. Section 45 of the Evidence Act only states that when the court has to form an opinion upon a point of State vs. Ravinder @ Sushi Page 36 of 41 FIR No.04/2017 P. S. Sadar Bazar foreign law or of science or art, or as to Identity of handwriting or finger impressions the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. It is thus evidence that a wound certificate or the opinion of a medical officer as to the nature of an injury or how it can be caused is relevant only to enable the Court to form its own conclusion on the point. It follows that where there are other reliable materials which enable the Court to form an opinion and if on the basis of such materials the court enters a finding and convicts an offender, the finding and conviction are not liable to be interfered with on the ground of absence of evidence of a medical expert or of the wound certificate issued by him. In such cases, it may not be proper to act on a presumption of prejudice to the accused. Actual prejudice must be established before a conviction is interfered with. The evidence of an expert being in the nature of opinion, its necessity arises only where direct evidence is not satisfactory or disinterested and where it is of that character as to require corroboration by way of opinion of an expert. It may be proper to set aside a conviction under Section 324 I.P.C. on the ground of absence of the expert opinion of a medical officer in a case where the evidence adduced falls short of proof as to the nature of the weapon used. In such cases, the opinion of a medical expert may be of assistance to the Court in forming an opinion whether a weapon of the category mentioned in Section 324 I.P.C. had been in fact used by the accused. But where the oral evidence is safe and reliable in proving the nature of the weapon used, the court need not base its conclusion on the point from the opinion of the medical expert gathered from an examination of the injury.
7. In the instant case, the evidence of P. Ws. 1 to 4 clearly makes out that the injuries were caused to P. W. 1 by stabbing with a knife. The recovery of the sheath corroborates the above evidence. Ext. P3, the intimation sent by P. W. 8 shows that a person having the same name as P. W. 1 was admitted in the hospital on 27-8-71 at 8-10 p.m. with injuries alleged to have been caused by stabbing State vs. Ravinder @ Sushi Page 37 of 41 FIR No.04/2017 P. S. Sadar Bazar by one Haridasan. The first accused is known by the name Haridasan. Ext. P3 supports the case of the prosecution that a stabbing instrument was used by the accused for inflicting the injuries on P. W. 1. In view of the conclusive nature of the evidence adduced by the prosecution, the acquittal of the accused by the Sessions Judge solely on the ground that the wound certificate had not been produced is not sustainable in law.
17. Hence, the prosecution has successfully proved the first ingredient that accused Ravinder @ Sushi has voluntarily caused hurt by a paper cutter/ knife around 3.00 A.M. on 07.01.2017 on the road near Kirorimal School and Qutab Road Parking, Qutab Road, Sadar Bazar, Delhi and thereby caused injuries to PW-2 on the backside of left ear and on the stomach from which blood started coming out which droozed the parrot colour shirt Ex.P-2 worn by PW-2.
18. The next ingredient which the prosecution is required to prove is that such voluntary hurt was caused by the accused by any instrument used for shooting, cutting or stabbing or any other instrument likely to cause death. It is deposed by PW-2 that the voluntary hurt was caused to him by accused Ravinder by one cutter type knife which is Ex.P-1 and the sketch of which is Ex.PW2/A. The knife was seized vide seizure memo Ex.PW2/B which bears the signatures of PW-2 at point A. The knife was used at the point given in site plan Ex.PW2/D and this paper cutter knife has yellow handle which is correctly State vs. Ravinder @ Sushi Page 38 of 41 FIR No.04/2017 P. S. Sadar Bazar identified by PW-2. PW-10 has also seen accused taking out this knife and PW-10 has identified the accused before the court. It is deposed in cross examination by PW-10 that they snatched paper cutter knife from the hand of accused Ravinder and thereafter handed it over to the police at the spot. PW-3 HC Vinod had received the said knife from PW-2 Sanjay at the spot which was seized of by Sanjay after overpowering the accused Ravinder at the spot. HC Vinod / PW-3 had received the said knife immediately at the spot of incident. The knife Ex.P-1 was correctly identified by PW-3 as the same knife which was received by him from PW-2 and which has yellow handle. The parrot colour shirt is also correctly identified by PW-3 on record. The sketch of knife Ex.P-1 and seizure memo Ex.PW2/B prepared by IO bears the signatures of PW-3 at point B. the knife was seized by seizure memo Ex.PW3/A which bears the signatures of PW-3 at point A. PW-4 was on patrolling duty with PW-3 who had witnessed the incident immediately after its occurrence at the spot of crime and had also seen joining of IO on the spot after registration of FIR. PW-4 had seen that one boy was bleeding at the spot whose name was revealed as Sanjay/PW-2. PW-2 and PW-10 had apprehended the accused Ravinder at the spot. PW-2 and PW-10 had handed over knife to PW-3 and PW-4. The Doctor/PW-1 had already State vs. Ravinder @ Sushi Page 39 of 41 FIR No.04/2017 P. S. Sadar Bazar given the opinion that the injury received by PW-2 was caused by a sharp object. The paper cutter knife which was in the possession of the accused is the sharp object and it can cause the nature of injury received by PW-2 which is lacerated wound on the left side of neck (backside) ad-measuring 2x3 cm behind left ear and minor incised wound on the left side of the abdomen. The plea of the learned Counsel for the accused is not accepted that it was a dark night and visibility was hardly 50 meter in view of the fact that PW-2, PW-10 and PW-12 all had witnessed the incident from less than 50 meter about causing voluntary hurt to PW-2 by the accused Ravinder. It must be an incident occurred within a few feet. Accused was arrested at the spot vide memo Ex.PW/F whose personal search was conducted vide memo Ex.PW2/G. Hence, the prosecution has successfully proved on record that accused Ravinder @ Sushi had voluntarily caused hurt to PW-2 by an instrument of cutting by a paper cutting knife.
19. Hence, both the ingredients of the offence under Section 324 IPC are proved by the prosecution against the accused and hence the accused is held guilty under Section 324 IPC. Accused Ravinder @ Sushi stands convicted under Section 324 IPC. Accused is asked to furnish fresh bail bond under Section 437A Cr. P.C within 3 working days of the pronouncement of State vs. Ravinder @ Sushi Page 40 of 41 FIR No.04/2017 P. S. Sadar Bazar this judgment.
Put up for arguments on sentence on accused under Section 324 IPC.
Digitally signed by JOGINDER JOGINDER PRAKASH PRAKASH NAHAR Announced in the open court NAHAR Date: 2023.12.19 on dated 19.12.2023 13:00:32 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/.2023 State vs. Ravinder @ Sushi Page 41 of 41 FIR No.04/2017 P. S. Sadar Bazar