Delhi District Court
State vs . Dharam Raj Singh @ Piyush on 28 November, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 159/2017 & 64/2017
New SC No. 08/2018
State Vs. Dharam Raj Singh @ Piyush
FIR No. 02/2017
U/s: 307 IPC
PS: Parliament Street
1. Date of Institution : 25.04.2017
2. Date of Commencement
of Final Arguments : 27.11.2018
3. Date of Conclusion of
Final Arguments : 27.11.2018
4. Date of Reserving Order : 27.11.2018
5. Date of Pronouncement : 28.11.2018
6. Whether Acquitted or
Convicted? : Convicted under Section
326 IPC.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Accused in judicial custody with Sh. Vaibhav Mishra,
Advocate.
JUDGMENT
Brief Facts of the Case and Investigation The instant case was registered on 09.01.2017, when ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 1 of 27 information was received in Police Station Parliament Street at about 10:00 PM, vide DD Entry No. 21A, that one boy, whose name was later on learnt to be Pankaj, had been stabbed and was admitted in RML Hospital. On this information, SI Ramkesh went to the hospital, where injured Pankaj was found admitted and was declared unfit for the statement by the doctor. He collected the MLC of the injured, wherein the doctor recorded that he had suffered two stab wounds. Since the injured was unfit for statement, the instant case was got registered under Section 307 IPC, on this information itself.
2. During investigation, the IO collected the MLC of the injured, summoned the crime team for examination of the spot, took photographs of the place of incident, collected bloodstained earth, prepared site plan and recorded the statement of witnesses. When injured Pankaj was declared fit for statement, his statement was also recorded, wherein he stated that he was stabbed by one Dharam Raj. The exhibits were also sent to RFSL, Chankyapuri for examination, accused was arrested, opinion of doctor was obtained as to the nature of injury, who declared it to be dangerous and opinion of the doctor was also obtained about the nature of the weapon used and it was opined that the injuries could be caused by knife or any other sharp weapons. Thereafter, statements of other witnesses were recorded, investigation was completed and thereafter the instant charge sheet was filed against the accused ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 2 of 27 under Section 307 IPC.
Committal of the Case and Framing of Charge
3. On completion of formalities under Section 207 CrPC, the case was committed to the Court of Sessions on 02.05.2017.
4. Vide order dated 03.07.2017, my learned Predecessor was pleased to frame charge under Section 307 IPC against the accused, to which he pleaded not guilty and claimed trial. Evidence of the Prosecution
5. In support of its case, the prosecution has examined fifteen witnesses in all.
6. PW 1 is Sh. Pankaj, who had sustained injuries at the hands of the accused. He deposed that accused Dharam Raj Singh @ Piyush, Vikram Giri, Bhanu and he himself reside at Patri/Footpath and generally drink and sleep over there. He works as a waiter in parties and goes to Gurudwara for food. He further deposed that on 01.09.2017 at about 01:45 PM, accused Dharam Raj Singh had heated conversation with Bhanu on the issue of drinking liquor and he tried to pacify the matter. On this, accused Dharam Raj Singh abused him and left the place threatening that he would see him later. He further deposed that after some time, accused Dharam Raj Singh came over there and out of anger said that he would eliminate him that day itself and took out a knife from his pocket and gave him three knife blows in his stomach.
7. PW 2 is Sh. Vikram Giri. He has deposed on the same ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 3 of 27 lines as deposed to by PW 1 Pankaj regarding Pankaj being stabbed by accused Dharam Raj Singh. He also deposed that on 25.01.2017, he saw accused Dharam Raj Singh at Talkatora Road and he was apprehended and handed over to the police. He also proved his arrest memo, Ex PW 2/A, and also his personal search memo, Ex PW 2/B.
8. PW 3 is ASI Hem Chand. On 01.09.2017, he was In charge of Mobile Crime Team. On that day, he inspected scene of crime at Footpath on Pandit Pant Marg, near Kiosk No. 33 and prepared his report, Ex PW 3/A.
9. PW 4 is HC Sanjeev Kumar. He was also posted in Mobile Crime Team. He accompanied PW 3 ASI Hem Chand to the spot of crime and took photographs, Ex PW 4/A1 to A7, the negatives of which are Ex PW 4/B1 to B7.
10. PW 5 is ASI Sher Singh. On 09.01.2017, he was posted as Duty Officer in Police Station Parliament Street from 04:00 PM to 12:00 midnight. On receipt of the information about the incident, he recorded DD Entry No. 21A, Ex PW 5/A, and handed over the same to PW 12 IO SI Ramkesh for necessary action. On receipt of rukka, Ex PW 5/C, he also recorded the FIR, a carbon copy of which is Ex PW 5/B. He also issued a certificate, Ex PW 5/D, under Section 65B of Evidence Act.
11. PW 6 is Dr. Hishmi of RML Hospital. He had examined injured Pankaj, when he was brought to the hospital and prepared ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 4 of 27 his MLC, Ex PW 6/A. He also deposed that one stab wound was on left hypochondrium (upper abdomen) and other stab wound was on left flank near kidney.
12. PW 7 is HC Ashwani Kumar. He deposed that on 25.01.2017, when he along with Ct. Manjit Singh was on Republic Day duty at Talkatora Road, accused Dharam Raj Singh was arrested by him on the pointing out of Vikram Giri and was handed over to ASI Khursid Akhtar for necessary action. He also deposed that he was arrested vide memo, Ex PW 2/A, and his personal search was conducted vide Ex PW 2/B.
13. PW 8 is Ct. Manjit Singh. He deposed that on 25.01.2017, when he along with HC Ashwani Kumar was on Republic Day duty at Talkatora Road. He has deposed on the same lines as deposed to by PW 7 HC Ashwani Kumar regarding the arrest of the accused.
14. PW 9 is Ct. Narayan. He deposed that on 09.01.2017, he was posted in Police Station Parliament Street and on receipt of DD Entry No. 21A, he had accompanied PW 12 SI Ramkesh to RML Hospital, where IO collected MLC of injured Pankaj and also seized blood samples and cloths of injured Pankaj vide seizure memos, Ex PW 9/A and B, when the same were handed over by the doctor. He also deposed that no eye witness was found and they returned to the spot, where IO prepared rukka and handed over to him for getting the case registered. He took the rukka to police station, got ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 5 of 27 the case registered, returned to the spot and handed over copy of the FIR and rukka to the IO. The IO also seized blood gauze, Ex P2, vide memo, Ex PW 9/C, and blood stained earth, Ex P1, vide memo, Ex PW 9/D, from the spot. He also deposed that on 25.01.2017, when the accused was arrested, he got him medically examined in RML Hospital. In the police station, the IO examined him and recorded his disclosure, Ex PW 9/E, and also prepared a pointing out memo of the place of incident vide Ex PW 9/F.
15. PW 10 is ASI Khursid Akhtar. He has deposed on the same lines as deposed to by PW 7 HC Ashwani Kumar regarding the arrest of the accused.
16. PW 11 is Ct. Kapil Kumr. He deposed that on 21.02.2017, he was posted in Police Station Parliament Street. On that day, as per the direction of the IO, he collected four sealed pullindas from the Malkhana and deposited the same in RFSL, Chankyapuri. As long as the exhibits remained in his custody, the same were not tampered with. He has proved the copy of the Road Certificate and receipt of RFSL, Chankyapuri, Ex PW 11/A and B respectively.
17. PW 12 is SI Ramkesh. He is the investigating officer of the case. He has deposed on the same lines as deposed to by earlier witnesses regarding the incident, information of which was received vide DD Entry No. 21A, Ex PW 12/A, registration of the case and arrest of the accused. During investigation, he also ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 6 of 27 prepared a site plan, Ex PW 12/B. He recorded the statements of the witnesses, collected the RFSL Report, completed the investigation and filed the charge sheet in the Court.
18. PW 13 is HC Sunil. He deposed that on 01.10.2017, he was posted as MHC(M), Police Station Parliament Street. He deposed that on that day, SI Ramkesh deposited four sealed pullindas with him and he made an entry in the Malkhana Register in this regard, copy of which is Ex PW 13/A. He also deposed that on 21.02.2017, these pullindas were sent to RFSL, Chankyapuri through Ct. Kapil, for examination vide Road Certificate, Ex PW 11/A.
19. PW 14 is Sh. Indresh Kumar Mishra. He deposed that in RFSL, the samples of the case were examined by Ms. Pooja Shrotriya. He has proved her report, Ex PW 14/A.
20. PW 15 is Dr. Mohd. Sarvar Alam of RML Hospital. He has identified the handwriting of Dr. Anil Kumar, who had given the opinion about the nature of injury to be dangerous vide Ex PW 15/A, and also of Dr. Saurabh, who had given the mode of injury to be by sharp weapon vide Ex PW 15/B.
21. Thereafter, prosecution evidence was closed. Statement of the Accused and Defence Evidence
22. Thereafter, statement of the accused was recorded under Section 313 CrPC, wherein he denied the allegations against him to be incorrect stating that he was not involved in the incident ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 7 of 27 as deposed to by the complainant and he has been falsely implicated in this case. He did not lead any evidence in his defence. Submission of the Parties
23. It is submitted by learned Addl. PP that injured PW 1 Pankaj has categorically deposed that on 09.01.2017, he was stabbed twice in the stomach by accused Dharam Raj Singh, when he had intervened in the arguments over drinking liquor between the accused and his friend Bhanu. It is further submitted that the doctor had opined that the injuries were dangerous in nature and were caused by sharp weapon. It is further submitted that the verion of PW 1 Pankaj has been duly supported by PW 2 Sh. Vikram Giri, who was also present on the spot. It is further submitted that the evidence led by the prosecution has proved its case beyond reasonable doubt that accused Dharam Raj Singh stabbed injured Pankaj with a knife with intention to kill him. It is submitted that the accused may be convicted for the offence under Section 307 IPC.
24. On the other hand, it is submitted by learned defence counsel that accused did not stab injured Pankaj but he was stabbed by someone else and the accused has been falsely implicated in this case. In this regard, my attention has been invited to the statement of the accused recorded under Section 313 CrPC. It is submitted that it was Bhanu, who was carrying the knife, and he might have stabbed the injured. It is repeatedly ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 8 of 27 submitted that accused has been falsely implicated in this case. It is further submitted that even the weapon of offence has not been recovered in the case and as such it cannot be said that a knife or any other sharp weapon was used in the incident. It is further submitted that there is no evidence that the weapon was dangerous or lethal enough to cause death.
It is further submitted that even otherwise, if it is presumed that the injured was stabbed by accused Dharam Raj Singh with knife, even then no case under Section 307 IPC is made out. It is further submitted that the accused Dharam Raj Singh, injured Pankaj, PW 2 Sh. Vikram Giri and Bhanu were friends and used to drink together. It is further submitted that the incident took place over drinking between friends. It is further submitted that the incident of stabbing also took place all of a sudden due to sudden provocation given by the injured, as he had needlessly intervened in an altercation between the accused and one Bhanu. In this regard, my attention has been invited to the deposition of PW 1 Sh. Pankaj and PW 2 Sh. Vikram Giri, both of whom have deposed that there was an arguments between Bhanu and the accused over drinking liquor and when PW 1 Sh. Pankaj intervened, accused stabbed him after he brought a knife within about fifteen minutes. It is further submitted that if any case at all is made out against the accused, it is a case of causing grievous injury by sharp weapon. It is repeatedly submitted that the prosecution has failed ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 9 of 27 to prove its case against the accused beyond reasonable doubt and the accused may be acquitted.
Whether injured Pankaj was stabbed by the accused?
25. It is the case of the accused that he did not stab injured Pankaj and it was Bhanu, who was carrying the knife. It is his case that after an altercation with Bhanu, the matter was got settled. It is also his case that thereafter Bhanu tried to give him a knife blow and on this he ran away from the spot. Hence, he did not cause injury to the injured and came to know about it on next day.
26. The entire case hinges on the testimony of PW 1 Sh. Pankaj and PW 2 Sh. Vikram Giri. PW 1 Sh. Pankaj, who had sustained injuries in the incident, has categorically deposed that he was stabbed by accused Dharam Raj Singh. He has been cross examined in some detail for the accused, but no such suggestion was given to him that it was Bhanu, who was carrying the knife and not the accused. He also denied the suggestion that the accused has been falsely implicated in the case.
Similarly, PW 2 Sh. Vikram Giri has also deposed that it was accused Dharam Raj Singh, who had stabbed injured Pankaj. In the crossexamination, he has denied the suggestion that it was Bhanu, who was quarreling with Pankaj. He also denied the suggestion that the accused has been falsely implicated in the case. In this way, it is clear that both the eyewitnesses, that is, injured ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 10 of 27 Pankaj and his friend PW 2 Sh. Vikram Giri have categorically deposed that it was accused Dharam Raj Singh, who had stabbed the injured. In the crossexamination, there is nothing of any significance which could discredit the evidentiary value of these two witnesses about the involvement of the accused in the incident. Their evidence is clear, cogent and categorical about the involvement of the accused. Moreover, injured Pankaj would have no motive in letting off the real culprit and getting another innocent person implicated in this case.
27. In view of the above discussion, I am satisfied that it was accused, who had stabbed injured Pankaj and the submission made by learned defence counsel is without merit. Whether the injured was attacked by the accused due to grave and sudden provocation?
28. It is submitted by learned Addl. PP that the accused attacked the complainant with intention to kill him as he caused two stab wounds to the victim in his stomach with a knife. It is submitted that a bare perusal of testimony of PW 1 Sh. Pankaj and PW 2 Sh. Vikram Giri proves the case of the prosecution under Section 307 IPC.
On the other hand, it is the case of the defence that the incident took place all of a sudden, when the injured, accused and their friends had taken drinks. It the case of defence that all were friends, who used to reside on footpath, and drink over there. It is ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 11 of 27 repeatedly submitted by learned defence counsel that the incident took place all of a sudden, when Pankaj needlessly intervened in an altercation between the accused and Bhanu over drinks and the accused was deprived of his power of selfcontrol due to grave and sudden provocation. In this regard, my attention has been invited to the evidence of the two witnesses, that is, PW 1 Sh. Pankaj and PW 2 Sh. Vikram Giri.
In rebuttal, it is submitted by learned Addl. PP that it is not a case of sudden quarrel over grave and sudden provocation, as the accused had time to think and cool down, as he returned to the spot, armed with a knife, after about twenty minutes, after altercation with the injured. It is submitted that he returned with a knife in a preplanned manner.
29. Let me take note of the relevant testimony of PW 1 and PW 2. The relevant part of testimony of PW 1 Sh. Pankaj reads as under:
"I do work in the weddings and parties as waiter and I go to Gurudwara for the purpose of eating food. Vikram Giri, Dharam Raj @ Piyush, Bhanu and myself do reside at the Patri/foothpath and we generally drink over there and also sleep over there. On 09.01.2017 at about 8.45 pm accused Dharam Raj @ Piyush, present in the Court today (correctly identified) had a heated conversation with Bhanu on the issue of drinking liquor. I tried to pacify the matter, at this accused Dharam Raj ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 12 of 27 abused me and left the place by intimidating me that he will see me later on. After sometime accused Dharam Raj again came there and out of anger he said that he will eliminate me today and he took out a knife from his pocket and gave three knife blows on my stomach and torned my stomach by knife......."
Even in crossexamination, he has admitted that the quarrel took place because accused Dharam Raj Singh was asking for a whitener used as an addictive drug and when Bhanu refused to give the same, accused started beating him and when he intervened, he got angry with him. He also admitted that all of them had consumed liquor on that day.
30. The relevant part of testimony of PW 2 Sh. Vikram Giri reads as under:
".......On 09.01.2017 at about 8.30 pm the accused Dharamraj @ Piyush and Sh. Bhanu were having heated conversation on the issue of drinking liquor and the accused was abusing Bhanu and was scuffling with him. Pankaj intervened and somehow pacified the matter. At this accused Dharamraj told Pankaj that he should not have intervened and that he will face the consequences. After about 2025 minutes accused Dharamraj came there with momos in his hand and a knife which he was carrying for the last about 4 days. The accused Dharamraj called Pankaj, who was sitting with us and took him near a under construction ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 13 of 27 toilet and all of a sudden Pankaj cried and we saw that the moment Pankaj cried accused Dharamraj started running with a knife in his hand. We reached there and saw that Pankaj had sustained stab wounds on his abdomen. His wearing apparel were completely blood stained and the blood was falling on the ground. I had not consumed alcohol on the said day and we took him to the RML hospital in the auto rickshaw and the injured Pankaj had lost his consciousness while we were removing him to the hospital. Pankaj was operated upon in the RML Hospital and after the operation the scar mark on his abdomen was measuring about a feet......."
In his crossexamination, he has conceded that they are all friends and reside on footpath and also used to take meal and drink alcohol together.
31. Thus, from the testimony of two witnesses, it is clear that the incident took place within the span of fifteentwenty minutes, after injured Pankaj intervened in an altercation over drinks between the accused and Bhanu.
32. As per evidence of PW 6 Dr. Hishmi, the injured had suffered two wounds in his abdomen and as per MLC, Ex PW 6/A, they were of 3x3 Cm and 4x4 Cm size. The doctor has categorized them to be dangerous and caused with a sharp weapon. Now the question is: Whether this fact situation makes it out a case of grave and sudden provocation?
___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 14 of 27
33. Let me take note of the law on this point.
Legal Provisions and Case Law
34. Section 299 IPC reads as under:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
35. Section 300 IPC reads as under:
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or .... ......................................................................... .......................................................................... Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos: First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. That the provocation is not given by ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 15 of 27 anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
36. In an authority reported as K. M. Nanavati Vs. State of Maharashtra, AIR 1962 SC 605, while dealing with the question of grave and sudden provocation, the Hon'ble Supreme Court observed in paragraphs 84 and 85 as under:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 16 of 27 to ascertain whether a reasonable man placed in the position of the accused would have lost his selfcontrol momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his selfcontrol and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus: ( 1 ) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his selfcontrol. ( 2 ) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. ( 3 ) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. ( 4 ) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
37. In the instant case, as per the testimony of PW 1 Sh. Pankaj, there was a heated conversation between the accused and ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 17 of 27 Bhanu over drinks and he tried to pacify the matter. On this, accused got annoyed and left the place threatening him and returned after some time with a knife in anger and gave him three knife blows. PW 2 Sh. Vikram Giri has also deposed that Sh. Pankaj had pacified the matter between accused and Bhanu. A bare perusal of the evidence reveals that injured Pankaj had not done any such act, which might have provoked the accused so much as to cause him stab injury in his stomach. Furthermore, the incident did not take place immediately on the intervention of Pankaj but after fifteentwenty minutes and thereafter accused returned with a knife. This shows that there was time for the accused to cool down, but instead of cooling down, he brought a knife and stabbed the injured for no reason at all, as intervening in a quarrel to pacify the matter cannot become a cause of provocation. Moreover, the action of the accused was not simultaneous, but was delayed and planned. In such a situation, if the benefit of exception is allowed, it would put a premium on bad conduct of a person and would further encourage him to commit crime. The instant case is a case of determined act by the accused and not of a spontaneous nature due to grave and sudden provocation. Rather, there was no provocation at all. Accordingly, I find no merit in the submission of learned defence counsel that it is a case of grave and sudden provocation.
___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 18 of 27 Whether the evidence on record makes it out a case of attempt to murder?
38. It is further submitted by the learned defence counsel that if it is not a case of grave and sudden provocation, even then there is no material on record, on the basis of which, it can be held that the act of the accused falls under Section 307 IPC. It is further submitted that the knife has not been recovered and its length and lethality is not known. It is further submitted that even it is not clear whether the injury was caused by knife or some other object and in this regard my attention has been invited to document, Ex PW 15/B, wherein in answer to a query by police, doctor reported that it can be caused by knife or any other sharp weapon. It is also submitted that both parties were drunk and in such a situation, no intention to kill can be inferred.
However, learned Addl. PP has stuck to his position that it is a case of attempt to murder, as the injury was caused in stomach of the injured. Let me take note of law relating to attempt to murder.
39. Section 307 IPC reads as under:
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 19 of 27 person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned."
40. In this regard, it is instructive to quote an authority reported as Hari Singh Vs. Sukhbir Singh and Others, (1988) SCC 551, wherein Hon'ble Supreme Court, while dealing with ingredients of Section 307 IPC observed in paragraph 7 as under:
".......Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention......."
41. In the instant case, it is a fact that the weapon of offence has not been recovered. PW 1 Sh. Pankaj, who had sustained injuries, has also not described the type and size of the weapon of offence, that is, knife. In the instant case, there is no ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 20 of 27 description of quality, weight, length, thickness or sharpness of the weapon of offence. Thus, it cannot be said that weapon of offence was formidable one and good enough to cause death. Place of nature of injury is only one of the factors for arriving at the conclusion as to whether the intention was to cause death or not. In the facts of the instant case, it cannot be sole determinant of this fact. Though the place of injury is in the stomach, but in view of the facts that the weapon of offence has not been recovered and its description has not been given by the witness, I am of the considered opinion that the deposition as noted above does not make out a case of intention to cause death. It is more so, when the doctor, who had opined the injuries to be dangerous has not been examined as a witness. As per the MLC, the two stab wounds were also of 3x3 Cm and 4x4 Cm size only. Thus, there is no sufficient material on record to make it out a case of intention to cause death. Accordingly, the evidence led by the prosecution does not prove a case of attempt to murder against the accused.
42. However, enough material has come on record that accused Dharam Raj Singh had given two stab wounds to injured Pankaj in his stomach. The witnesses have deposed that the accused had attacked the injured with knife. PW 6 Dr. Hishmi, who had prepared the MLC, Ex PW 6/A, has also deposed that there were two stab injuries in the stomach of the injured. In the cross examination, he also conceded that such injuries may be caused by ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 21 of 27 any sharpedged weapon. PW 15 Dr. Mohd. Sarvar Alam has proved the opinion of Dr. Anil Kumar that the injury was dangerous in nature. Thus, evidence has come on record, as already noted above, that the accused had caused injuries in the stomach of the injured by a knife or as noted in Ex PW 15/B by any sharp weapon. Knife or sharp weapons are instruments of stabbing or cutting and can be used to cause grievous injury. Thus, there is a complete correspondence between the act of the accused and his knowledge/intention to cause grievous injury to the injured by a sharp weapon. Hence, the act of the accused falls under the provision of Section 326 IPC, which deals with grievous hurt caused by dangerous weapon and reads as under:
"Whoever, except in the case provided for by Section 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, 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 for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
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43. Accordingly, I am satisfied that the prosecution has failed to prove the case of attempt to murder against the accused under Section 307 IPC. However, it has been successful in proving a case under Section 326 IPC against the accused beyond reasonable doubt, as a dangerous/grievous hurt was caused to the injured by the accused by use of a knife/sharpedged weapon. Consequently, accused is acquitted of the charge under Section 307 IPC, but is convicted under Section 326 IPC.
44. Let convict Dharam Raj Singh be heard on the point of sentence.
Announced in open Court (O. P. Saini)
today on 28.11.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 23 of 27 IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL. JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI Old SC No. 159/2017 & 64/2017 New SC No. 08/2018 State Vs. Dharam Raj Singh @ Piyush FIR No. 02/2017 U/s: 307 IPC PS: Parliament Street 28.11.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Convict in judicial custody with Sh. Vaibhav Mishra, Advocate.
ORDER ON SENTENCE Vide my separate judgment dated today, accused Dharam Raj Singh @ Piyush has been convicted under Section 326 IPC on the allegations that on 09.01.2017 at about 08:45 PM, he had caused dangerous/grievous injuries to complainant Pankaj at Footpath on Pandit Pant Marg, near Kiosk No. 33, New Delhi by means of a knife/sharpedged weapon.
2. I have heard the arguments at the bar and have carefully gone through the file.
3. It is submitted by learned Addl. PP that the convict caused grievous injury with sharp object in the stomach of the complainant and delivered him two stab wounds. It is submitted ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 24 of 27 that the convict may be awarded severe punishment.
4. On the other hand, it is submitted by learned defence counsel for the convict that complainant Pankaj and convict were friends. It is further submitted that the incident took place during a quarrel over drinks. It is further submitted that the convict sleeps on footpath and belongs to the poorest of the poor section of society. It is further submitted that he is in custody since 25.01.2017. It is submitted that considering these factors, a lenient view may kindly be taken and the convict may be awarded sentence for the period already undergone by him. Law relating to sentence
5. The question of appropriate sentence in a case is a difficult question and has to be decided as per the facts and circumstances of the case as well as the station of the convict in life. In an authority reported as B. G. Goswami Vs. Delhi Administration, (1974) 3 SCC 85, while dealing with the question of sentence, Hon'ble Supreme Court observed in paragraph 10 as under:
".......Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 25 of 27 which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal........"
(All underlinings by me for supplying emphasis).
6. I have carefully considered the submissions made at the bar in the light of material on record and the law quoted above.
7. The injured as well as the convict were friends and used to live together on footpath on Pandit Pant Marg. Thus, he belongs to the poorest section of the society. He has been in custody since the date of his arrest, that is, 25.01.2017. He is also a young man, aged about 28 years. For these reasons, in my humble opinion, the purpose of retribution, deterrence as well as reformation of the convict would be achieved and the ends of justice would also be ___________________________________________________________________________ State Vs. Dharam Raj Singh @ Piyush FIR No. 02/17, PS: Parliament Street Page 26 of 27 served, if he is sentenced to imprisonment for the period already undergone by him in custody during trial, that is, from 25.01.2017 till date. Accordingly, convict is sentenced to imprisonment for the period already undergone by him during trial.
8. If the convict is not required in any other case, he be set at liberty at once.
9. A copy of the judgment and order on sentence be given to the convict free of cost immediately.
10. Case property is forfeited to the State to be disposed of after the time of appeal is over.
11. Since the convict resides on footpath and may not find a surety for him, he is directed to furnish a personal bond in the sum of Rs.10,000/ to appear before the Hon'ble Appellate Court as and when he receives notice of appeal, as per the provisions of Section 437A CrPC.
12. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 28.11.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
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