Delhi District Court
State vs Gopa Kumar on 12 April, 2019
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03 (East):
Karkardooma Courts: Delhi.
Sessions Case No: 573 of 2016
State Versus Gopa Kumar
S/o Sh. Rama Krihan Pillai
R/o 127-B, Pocket C-1,
Mayur Vihar Phase III
Delhi.
FIR No. : 1101/2014
Police Station : Gazipur
Under Section : 324/307 IPC
& 25/27 Arms Act
Chargesheet Filed On : 05.03.2015
Chargesheet Allocated On : 09.04.2015
Chargesheet Received by
This Court : 31.07.2017
Court Presided over on : 06.11.2017
Judgment Reserved On : 05.04.2019
Judgment Announced On : 12.04.2019
JUDGMENT :
1. The factual matrix of the present case are that on 27.12.2014 on receipt of DD No. 3-A, ASI Narayan Dev along with SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 Const. Sandeep reached at House No. 127-B, Pocket C-1, Mayur Vihar, Phase-III where said house was found locked and no thief was apprehended by complainant. During the enquiry in surrounding area, he came to know the fact that injured was taken to hospital by PCR Van. Thereafter, he searched the eye witness but no one found there. Then he along with Const. Sandeep reached at LBS Hospital where he obtained the MLC of injured Arjoo and patient was found unfit to make the statement. Another injured namely Krishna was also found admitted in LBS Hospital and Const. Sandeep also obtained his MLC and recorded his statement wherein he named the accused responsible for the injuries sustained by him and Aarjoo. In the meantime, concerned doctor also handed over sealed parcel seal with the seal of hospital containing clothes of injured Arjoo. He prepared ruqqa and handed over to Ct. Sandeep and sent him to PS for registration of the case. Thereafter, he along with Krishna reached at the spot where he prepared site plan at his instance. In the meantime, Const. Sandeeep returned back at the spot and handed over copy of FIR and original ruqqa to him. Then he prepared seizure memo of parcel. In the meantime, accused Gopa Kumar also came at the spot at that time, Kishna identified him. He apprehended accused and took casual search and one folding knife SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 was recovered from the right pocket of his jacket. He opened the knife and checked the same and prepared its sketch. One knife 440 stainless steel was engraved on one side of the blade of knife and China was engraved on other side of blade. Blade of knife was made with black steel. He measured the knife and found it was 28 cm. Then he prepared pullanda of said knife in a cloth and sealed the same with the seal of "ND" and taken into possession. Accused Gopa Kumar was arrested and his personal search was conducted. Accused Gopa Kumar was also interrogated by him and recorded his disclosure statement and then they all returned back to PS along with accused and accused was sent to the lock up and case property was deposited in the Malkhana. Then he recorded the statement of Const. Sandeep. On the same day, accused Gopa Kumar was produced before the court and sent to judicial custody.
2. On 08.01.2015 injured Arjoo was discharged from the hospital. IO met him at his house and recorded his statement regarding the incident. During the investigation, MLC of injured persons were deposited in the hospital and obtained the result and on the MLC of injured Arjoo, the nature of injuries was opioned as "grievous". Thereafter, during investigation, case property was sent to FSL and he recorded the statements of relevant PWs and SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 chargesheet was filed by him before the court against the accused to face trial for the offences punishable under Sec. 324/307 IPC and 27/25 Arms Act.
3. After filing of the challan, the accused was summoned. Copy of challan was supplied. Since the alleged offence u/s 307 IPC is exclusively triable by the Sessions Court, as such the case was committed to the court of Sessions and same has been assigned to this court.
4. Prima facie case has been made out against the accused and as such charge for the offence under Sec. 307 IPC & 324 IPC and 25 Arms Act have been framed against the accused for which accused pleaded not guilty and claimed trial.
5. In order to substantiate its case, the prosecution has examined as many as eight witnesses out of whom PW-1 Sh. Krishna and PW-7 Sh. Aarjoo are the injured who in their examination-in-chief narrated the story which shall be discussed in the proceeding paras of the judgment. PW-6 Dr. Abbas Ali proved the MLC of both the injured vide Ex. PW6/A and Ex. PW6/B. Other witnesses are the police officials and they have deposed that the investigation have been carried out by the witnesses. These witnesses are PW-2 Const. Sandeep (joined the investigation with SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 Investigating Officer), PW-3 HC Kundan Singh (Duty Officer), PW4 Const. Shani (who proved FSL record), PW-5 HC Sachin is a witness of taking the pullanda while PW-8 ASI Narayan is the investigating officer.
6. After leading the prosecution evidence which was closed and matter was fixed for statement of accused under Sec. 311 Cr.P.C. All the incriminating evidence brought on record put to the accused to which he denied all being incorrect or he is not aware. He further pleaded that on the date, time and place Krishna and two more persons were quarreling with each other, during the wee hours of the night. Krishna and his associates were in the habit of commit crimes. He called police by dialing 100 number. Police came at the spot. Other mohalla persons also came over there but police disbursed them and then he was implicated in this case falsely.
7. Accused opted to lead evidence in his defence.
8. Ld. APP has argued with confidence that prosecution has brought home the guilt of accused as the evidence from the date of incident till the apprehension of the accused and filing of the challan is complete in all respect with ocular and medical evidence to the effect that it was accused who caused injuries to both these injured with knife and said knife was also recovered from the SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 possession of the accused. It is further argued that non denial of the presence of the accused at the time and place of incident and having prior acquaintance of the injured Krishna as accused being neighbour, there is no reason to falsely implication of the accused. He also submitted that rather victim would be the most interested person to see the real culprit(s) behind the bars. It is further argued that the prosecution has proved its case against the accused beyond all the reasonable doubts. The ingredients of the charges levelled against the accused have been proved in view of the facts and circumstances of the case and as such, the accused is liable to convicted.
9. On the contrary learned counsel for accused has argued that the accused has not committed any offence. He has not inflicted any injures on the persons of the injured and he has been falsely implicated in the present case. It is further submitted that the real culprits were not apprehended by the police nor police investigated the case fairly and properly. He further contended that testimony of the defence witnesses be teated at par and this all makes the prosecution case doubtful. As such in these circumstances, the ingredients of the charges levelled against the accused have not been complied with in terms of the deposition SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 made by the prosecution witnesses. There are contradictions and improvements in the statement of witnesses and as such, the accused is liable to be acquitted by granting benefit of doubts.
10. I have also gone through the material on record and analysised the statement of the witnesses in consonance with the documents prepared during the course of investigation as well as other material on record and relevant judgments.
11. First of all, court shall deal with the contention of the ld. defence counsel about the defence witness. It is an undisputed fact that defence witnesses tendered by defence can not always be termed to be a tainted one and the are entitled to equal treatment and equal respect as that of the prosecution witnesses but it must be kept in mind that their evidence must be reliable and credible and for holding this view, court is taking shelter of cases reported as State of Haryana Vs. Ram Singh 2002 (1) JCC 385 (Supreme Court of India) and Anil Sharma & Ors Vs State of Jharkhand [2004 (3) RCR (Cri) 774].
12. Perusal of the record show said defence witness deposed to the effect that at the time of incident on hearing noises of quarrel, when he came outside, he noticed about presence of both injured persons and also accused and all of them were under the SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 influence of liquor. He also deposed about the injuries sustained by injured Arjoo further deposing that he is unaware how he sustained injuries. If testimony of this witness is taken as gospel truth, even then all this shows to prove about the presence of both the injured and accused and all of them under the influence of liquor at the time of incident and also admittedly he had not seen the incident how injured sustained injuries and all this is of no help to the accused.
13. Perusal of the record clearly shows that PW-1 Krishna and PW-7 Aarjoo - both injured are the key and star witnesses of the case. It is also admitted fact that PW-7 Aarjoo while he was examined before the court on 01.06.2018, did not name the accused. This witness was cross-examined by ld. Addl. PP and during said cross-examination conducted by ld. Addl. PP, this witness testified that accused Gopa Kumar who had caused injuries to him and Krishna, his friend.
14. There is no rule of law which states that evidence of a hostile witness is to be rejected enbloc and it is not to be washed off the record altogether. It is for the Court to consider in each case whether as a result of such cross examination and contradiction, the witness has been altogether discredited or not. Apart from that in the present matter, PW-7 Aarjoo during cross-examination conducted by SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 ld. Addl. PP on the same date admitted and clearly ascribed the picture of incident stating that it was the accused who is responsible for the injuries sustained by him and his friend namely Krishna.
15. Now court has to analysis the evidence on record to the see the effect that whether prosecution has able to prove its case against the accused or not.
16. To facilitate the matter, testimony of PW-1 Krishna is hereby reproduced as:
"In the intervening night of 26/27.12.2014 at about 12.30 a.m. I along with my friend Arjoo was sitting on the stairs near outside Riya Clinic xxxxxx and talking to each other. Accused Gopa Kumar present in court (correctly identified) who was known to me before that day being resident of village Gharoli came there and asked us as to why we were sitting thereupon which were asked him as to how he was interested and concerned about out sitting. Accused Gopa Kumar lifted my friend Arjoo and threw him on the floor. I tried to intervene, however, accused took out a knife from the pocket of his jeans type jacket worn by him and inflicted knife blow into the abdomen of Arjoo. I tried to save my friend Arjoo upon which accused gave knife blow on my left hand and on my forehead. After sustained injuries,Arjoo fell on the road and I fled away from the spot in order to save myself xxxxxxxx within 7-8 minutes I returned back to that place and even at that Arjoo was lying on the ground and xxxx I took his mobile phone and informed the police about the incident xxx."
17. Perusal of the abovesaid, it is clear that said witness who is also complainant and one of the injured clearly narrated the SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 incident and identified the accused as responsible for the commission of crime on account of which he and his friend sustained injuries. Even during cross-examination on behalf of accused, he denied the suggestion that no such injury was caused by the accused.
18. Even during statement recorded under Sec. 313 CrPC to the answer of question no. 01, accused admitted his acquaintance with Krishna. PW-1 Krishna also stated in Ex.PW1/A that he knew accused.
19. To reply to the second question of statement recorded under Sec. 313 about presence of injured persons at the spot, accused replied - I do not know rather to the reply to the question no. 22, he replied that - on the date, time and place, Krishna along with two more persons was quarrelling each other during wee hours of the night - and this shows that injured were present at the spot. Even DW-1 also deposed about the presence of accused and injured at one point of time and place. Accused also admitted his presence at the spot. In case reported as Laxman Yadav V State 2013 AD (Crl) DHC) 112 - Hon'ble Court observed as:
false explanation by accused - effect of - false explanation by accused to built up defence which is otherwise contrary to established version of SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 prosecution leads to drawing of adverse inference against such accused.
20. Hence, this all led that accused has offered false answer to the questions for which adverse inference could be led against the accused.
21. As regard to the next contention that testimony of injured persons is full of improvements and contradictions, it is to seen that ld. defence counsel has unable to pin point any such improvement and contradiction which may go to the root of the case. Besides the above, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other corroboration evidence which also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e. materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
22. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest ad truthful they may be. These SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
23. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under :
"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 in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations 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 ground to reject the whole of the testimony of such witness.
xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
24. Apart from that, MLC Ex.PW6/A which relates to injured Aarjo mentions the injury - punctured lacerated wound above umlibcal region - small part of intestine seen from wound site - clearly shows that this injured sustained injuries in a vital part of body i.e. abdomen part, which found support from the testimony of PW-1 Krishna and PW-7 Aarjoo. Apart from that MLC Ex.PW6/B which relates to injured/complainant Krishna mentions - CLW 2x1.5 cm Right hand (palm) - which is also duly supported with testimonies of both injured. PW-4 Dr Abbas Ali who proved these MLCs was not cross-examined despite opportunity is granted.
25. Mere simple denial to the facts is of no value and is not admissible per se.
26. Hon'ble Apex Court in a case titled as State of Uttar Pradesh Vs. Naresh & Ors., 2011 AD (SC) 20 observed to the effect:
"The evidence of an injured witness must be given SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 due weightage being a stamped witness, thus, his presence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
27. It is also admitted position of the law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law. For holding this view I am supported with case reported SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 as Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC) 521.
28. Hence, in view of the above, court is of the view that prosecution has proved its case beyond all reasonable doubts that it was accused who caused injuries to PW-1 Krishna and PW-7 Aarjoo on the date, time and place of incident.
29. Qua, injured Aarjoo accused has been charged for the offence punishable under Sec. 307 IPC and qua injuries to injured Krishna, accused has been charged for the offence punishable under Sec. 324 IPC.
30. Now, it is to be analysised whether this case qua injuries to Arjoo attract provisions of Sec. 307 IPC or otherwise.
31. As per the provision of the Section 307 IPC, the essential ingredients required to be proved in the case of an offene under this section are as under:
(i) that the death of a human being attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death;
or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause any injury and thereafter hurt, it is punishable with imprisonment for life".
32. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act or the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 of its result and injury, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. To constitute an offense, no injury need be caused to the victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under Section 307 IPC the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed which is not so in this case. The intention is not gatherable merely from the seriousness of resultant injury.
33. It is clear from the record injuries were caused on altercation. In S.K. Jago Vs. State, 2007 Crl. L.J. 463 (Jhar.), it is clearly observed that accused persons without any intention to cause death fired one shot each and caused the injuries to father and son and then it was held that accused persons were liable to be SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 convicted for the offence of voluntarily causing hurt under Sec. 324 and not for the offence of attempt to murder.
34. Hence, in view of the over all circumstances of the case, court is of the view that ingredients of Sec. 307 IPC are not attracted in the present matter. Though, the incumbent of Sec. 307 IPC is not attributed under the facts and circumstances of the present case as well the prosecution has not brought home the guilt of accused for the offence punishable under Sec. 307 IPC, however, it has been proved that it was accused who caused injuries to the injured/PW-7 Aarjoo and it is well settled law that accused can be held guilty for other offence, though charge not framed.
35. In Wasim Vs. State of NCT of Delhi, 2018 X AD (DELHI) 442, taking shelter of observations made in Gurnain Singh's case (supra) court in its para 18 observed:
"xxxxx20. There is no dispute that no charge was framed under Section 306 IPC. Though the charge has not been framed under Section 306 yet on a question that has been put under Section 313 Cr.P.C., it is clear as crystal that they were aware that they are facing a charge under Section 304-B IPC which related not to administration of poison but to consumption of poison by the deceased xxxxxxxx The test is whether there has been failure of justice or prejudice has been caused to the accused.
21. In Gurbachan Singh v. State of Punjab [MANU/SC/0132/1957 : AIR 1957 SC 623: 1957 Cri. L.J. 1009], this Court examined the question of SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 prejudice and held as under: (AIR p. 626, para
7)"7. ... in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
22. In Shamnsaheb M. Multtani v. State of Karnataka [MANU/SC/0047/2001: (2001) 2 SCC 577: 2001 SCC (Cri.) 358], a three-Judge Bench, while dealing with the concept of "failure of justice", has opined thus: (SCC pp. 585-86, paras 23-24) "23. We often hear about failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment [MANU/UKHL/0007/1977 : 1978 AC 359: (1977) 2 WLR 450: (1977) 1 All ER 813 (HL)]). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
24. One of the cardinal principles of natural justice is that no man should be condemned without being heard (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of noncompliance with the principle of natural justice." SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24
36. Hence, in view of the above, it is clear that though another charge of causing injuries has not been framed to the accused but accused was well aware that he is facing charge for causing injuries to injured, accused can be held guilty for causing injuries to injured.
37. Hence, in view of the above, court is of the view that as nature of injuries has been opined as Grievous - which attracts the provisions of Sec. 326 IPC which clearly prescribes as - Whoever, except in the case provided for by Sec. 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death xxxxxxxx which it is deleterious to the human body to inhale, or to receive into the blood xxx shall be punished xxx"
38. The essential ingredients of Sec. 326 IPC are:
(1) voluntarily causing hurt;
(2) hurt caused must be grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means.
39. Section 320 IPC defines grievous hurt according to which following kinds of hurt only are designated as "grievous"- SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 First - Emasculation.
Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any member or joint.
Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eightly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.
40. MLC Ex.PW6/A clearly mentions that injured sustained punctured lacerated wound above umlibcal region - small part of intestine seen from wound site - which clearly fall within the purview of eighty clause of Sec. 320 IPC. This MLC also mentions that said injury is alleged to caused with knife. Witnesses in unequivocal terms stated that accused caused injuries with knife, a dangerous weapon.
41. Hence, in view of the above, court came to conclusion that prosecution has been able to prove its case against accused for the offence punishable under Sec. 326 IPC qua injuries to Aarjoo and as such, accused Gopa Kumar S/o Sh. Rama Krishan Pillai is held guilty for the offence under Sec. 326 IPC and is convicted accordingly.
42. Qua injuries sustained by PW-1 Krishna, in view of the above discussion, court is also of the view that accused caused SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 simple injuries with sharp object to PW-2 Krishna and as such, said accused accused Gopa Kumar S/o Sh. Rama Krishan Pillai is held guilty for the offence under Sec. 324 IPC and is convicted accordingly.
43. Apart from that, accused has also been charged for the offence punishable under Sec. 25 Arms Act for possessing a knife in contravention of notification. Though not proved but Notification dated 17.02.1979 issued by Delhi Administration has been placed on record and judicial notice of the same can be taken by the court.
44. Said notification is reproduced as under:
"....xxx It is necessary and expedient in the public interest that the acquisition, possession and carrying of spring actuated knifes, Gararidar, Buttondar knives or other knives which open or close with the any other mechanical devices with a blade of any size or folding knives with a sharp edged blade of 7.12 cm or more in length and 1.72 cm or more in breath in public place should be regularised xxx".
45. Though sketch of the knife Ex. PW1/D shows that said knife was having total length of 23 cms with blade of 13 cms but it is nowhere mentioned that it was either spring actuated knifes, Gararidar, Buttondar knives or other knives which open or close with the any other mechanical devices with a blade of any size or folding knives.
SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24
46. Apart from that PW-2 Const. Sandeep stated that it was buttondar knife while PW-8 ASI Narayan Dev stated that it was a folding knife. There are contradictions about the knife and its recovery.
47. Besides the above, perusal of the Ex.PW1/D, sketch of the knife, shows that said knife is not a knife which is to be opened with any mechanical device. No button or folding apparatus is shown/mentioned. A bare look of the same shows that it was simple knife. Hence, it is clear that said knife does not fall within the ambit of contravention of above mentioned notification, as same is neither buttondar nor spring actuated nor gararidar nor opened with any mechanical device, which is essential ingredients of said notification.
48. With these observations, court is of the view that prosecution has failed to bring home the guilt of the accused for the offence punishable under Sec. 25 Arms Act. As such, accused Gopa Kumar S/o Sh. Rama Krishan Pillai is acquitted for the offence punishable under Sec. 25/54/59 Arms Act charged against him
49. Sum up of the above discussion is that accused Gopa Kumar S/o Sh. Rama Krishan Pillai is acquitted of the offence punishable under Sec. 307 IPC and 25 Arms Act. However, said accused is held guilty for the offence punishable under Section 326 SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24 IPC (qua injuries of injured Aarjoo); 324 IPC (qua injuries of injured Krishna) and is convicted accordingly.
Digitally signed
SATINDER by SATINDER KUMAR KUMAR GAUTAM GAUTAM Date: 2019.04.12 Announced in open court 16:48:22 +0530 on 12th day of April, 2019 (Dr. Satinder Kumar Gautam) Addl. Sessions Judge-03 (East): KKD. Courts : Delhi. SC No. 573/2016 State Vs. Gopa Kumar Page 24 of 24