Delhi District Court
State vs 1. Shakeel on 14 September, 2021
1
IN THE COURT OF MS RAVINDER BEDI: ADDITIONAL SESSIONS
JUDGE02; E COURT: SHAHDARA: KARKARDOOMA COURT:
DELHI.
SESSIONS CASE No. 563/2016
FIR No. 392/2012
U/S: 307/186/353/333/34 IPC
P.S: Jagat Puri.
State Versus 1. Shakeel
S/o Late Shabbir Ahmad
R/o Ho.No. C48/2,
Parwana Road,
New Govindpura, Delhi.
2. Jamil
S/o Late Shabbir Ahmad
R/o Ho.No. C48/2,
Parwana Road,
New Govindpura, Delhi.
Date of Institution : 11.01.2013
Date of Final Arguments : 14.09.2021
Date of Judgment : 14.09.2021
JUDGMENT
1. Brief facts of the case as borne out from the record are as follows:
SI Dinesh Kumar in his complaint Ex. PW1/A stated that on 07.09.2012, he was on patrolling duty alongwith others on 07.09.2012 at 8.00 pm till 8.00 am of 08.09.2012 and at around 5.00 am near DAV Public School, he was informed by SI Rahul FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 1/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 16:56:51 +0530 2 that a case FIR No. 391/12 dated 07.09.2012 under Section 324/341/506 IPC was registered against one Shakeel s/o Shabbir and he could be found at his house and was asked to join enquiry. Complainant alongwith SI Rahul and Ct. Prashant reached at House No. C48, New Govind Pura, Delhi and knocked the door of house. Jamil (brother of Shakeel) came out and asked them the reason of coming and further told them that Shakeel was not at home. He was told about a case registered on the complaint of Bhanu Pratap Gupta against Shakeel at Police Station Jagat Puri for which Shakeel was required for enquiry. Accused Shakeel came out of house and started abusing policemen filthily and shouted as to who had dared to file a complaint against him. Accused Shakeel was told to stop abusing; instead he shouted loudly and exhorted his brother to teach all policemen a lesson. Jamil groped complainant from back side and exhorted Shakeel to kill them all. Shakeel took out a knife and gave a knife blow at complainant's neck, which hit at his right cheek. Shakeel gave repeated knife blows at complainant's stomach. Complainant tried to stop knife blows and in the process got cut his fingers. SI Rahul and Ct. Vikram tried to save him; Shakeel brandished knife and threatened to kill them all.
2. Based upon the said complaint, present FIR was registered for the offences under Section 186/333/353/307/34 IPC and Section 27 Arms Act and the investigation ensued. MLC of injured was collected from the hospital. Accused Shakeel was arrested on 09.02.2012, recovery of weapon was FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 2/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 16:57:26 +0530 3 effected and after completion of all formalities, chargesheet was filed before the court of Ld. MM. Copies of chargesheet and the annexed documents were supplied to both accused in compliance of Section 207 of the Code of Criminal Procedure 1973. The case was committed to the Sessions Court vide committal order dated 04.01.2013 and assigned to this Court for trial in accordance with law.
3. It is pertinent to mention that after the occurrence, co accused Jamil went absconding and proceedings under Section 82 Cr. PC were initiated against him. It was only during the prosecution evidence stage that accused was arrested in April 2013 and supplementary challan was filed against him on 03.05.2013.
4. Both accused were conjointly charged for the offences under Section 186/333/353/307/34 IPC with additional charge framed against accused Shakeel under Section 27 of Arms Act.
5. In order to bring home guilt of both accused, the Prosecution examined as many as 19 witnesses in all. A brief summary of the deposition of these witnesses is as under: PW1 was injured SI Dinesh Kumar who supported the case of prosecution and his testimony is corroborated by other eye witnesses. I shall dwell into his evidence later on in detail.
PW8 was Ct. Vikram Singh. He deposed that on 07.09.2012 he was posted at P.S. Jagatpuri and joined investigation with SI Rahul in connection with case FIR No. 391/2012. They were on motorcycle and reached near DAV FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 3/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 16:57:55 +0530 4 Public School at about 5.00 am where SI Dinesh was present in Govt. gypsy bearing no. DL1CJ7422 alongwith Ct. Prashant. On request of SI Rahul, SI Dinesh joined the investigation and thereafter they reached at C48, New Govind Puri at the house of Shakeel in a govt. gypsy. SI Rahul called accused Shakeel and one person who disclosed his name as Jamil came out from house. SI Rahul disclosed him about coaccused Shakeel wanted in a case FIR No. 391/12. Thereafter Shakeel came and started abusing them and he was having knife in his hand. Shakeel told his brother to catch hold of the police officers. Accused Jamil apprehended SI Dinesh from back side accused Shakeel apprehended SI Dinesh. He further deposed that SI Dinesh received injuries on his right cheek and on his hand. The police officials tried to apprehend the accused persons but they fled away from the spot. Thereafter SI Dinesh was taken to Max Balaji hospital in gypsy.
PW10 was Ct. Prashant, driver of govt. gypsy no. DL 1CJ7422. He deposed on the same lines of PW1 SI Dinesh and supported the case of the prosecution.
PW14 was HC Rohtash who deposed that he alongwith SI C.P. Singh and Ct. Rahul reached at the spot and on the basis of secret information IO arrested accused Mohd. Shakeel near Tikona Park Mandir vide arrest memo Ex. PW14/A and personal search memo Ex. PW14/B. He is witness to disclosure statement of accused Shakeel as Ex. PW14/C. He deposed that they reached at the first floor room of accused where accused got recovered one knife. He deposed that IO prepared FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 4/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2021.09.14 16:58:15 +0530 5 sketch of recovered knife Ex. PW14/D and sealed the knife with the seal of CPS. Thereafter IO seized the knife vide seizure memo Ex. PW14/E. PW14 deposed that accused Mohd. Shakeel got recovered his shirt which was worn by him at the time of incident and IO sealed the said shirt with the seal of CPS and seized the same vide seizure memo Ex. PW14/F. PW14 has identified the case property i.e. knife as Ex. P1 and white colour shirt as Ex. P2.
PW17 was SI Rahul who deposed that on 08.08.2012 he was posted at P.S. Jagat Puri and was the Investigating Officer of case FIR No. 391/12 P.S. Jagat Puri under Section 324/341/506 IPC. He deposed that on that day during investigation he alongwith Ct. Vikram reached near DAV Public School, Jagat Puri at about 5.00 pm and SI Dinesh and Ct. Prashant met them who were in government gypsy. PW17 deposed that he apprised the facts and circumstances of case FIR No. 391/12 to SI Dinesh and requested him to accompany as PW17 was under training at that time. He deposed that thereafter they reached at house of Mohd. Shakeel bearing no. C48, Parwana Road, Jagat Puri. He further deposed that one Jamil and Mohd. Shakeel met them in the house and Mohd. Shakeel while abusing stated that who dare to lodge FIR against him and he further told them that 'tumari himmat kaise hui yahan aane ki'. PW17 further deposed that thereafter Jamil caught hold of SI Dinesh from behind and Shakeel took out a knife and gave him knife blow on his neck, however knife got hit at his face. He deposed that Mohd. Shakeel made second knife blow FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 5/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2021.09.14 16:58:35 +0530 6 on the stomach of SI Dinesh. PW17 deposed that thereafter Mohd. Shakeel ran away towards Tikona Park and Jamil ran away towards Patparganj Road. He deposed that SI Dinesh was taken to Max hospital, Patparganj and thereafter SI C.P. Singh and Ct. Ratish came to hospital where statement of SI Dinesh Kumar was recorded. He deposed that on the basis of statement of SI Dinesh rukka was prepared and present FIR was got registered through Ct. Ratish. He deposed that thereafter SI C.P. Singh prepared site plan at the instance of PW17.
PW12 was Sh. Dinesh Kumar, LDC Home Department (General), who brought the summoned record i.e. notification No. F13/203/78Home (G) dated 17.02.1979 bearing the attestation of Sh. Ashwani Vats, Superintendent, Home General Department, GNCT, Delhi Secretariat Delhi and proved the same as Ex. PW12/A. PW2 was HC Ravinder, who was posted as Head Constable and was working as duty officer on 07.09.2012 from 4.00 pm to 12.00 midnight. He proved the copy of FIR No. 391/12 u/s 324/341/506 IPC as Ex.PW2/A. PW3 was ASI Sunita, who was posted at P.S. Jagat Puri as duty officer on 08.09.2012 from 8.00 am to 4.00 pm. She proved the copy of FIR No. 392/12 u/s 307/186/353/34 IPC as Ex.PW3/A. PW4 was Dr. Pratika who was posted as Emergency Physician at Max Balaji hospital, I.P. Extn. Patparganj, Delhi and had medically examined SI Dinesh Kumar and prepared his FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 6/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 16:59:07 +0530 7 MLC as Ex. PW4/A. PW15 was Dr. Kishalay Datta, HOD Emergency Medicine Department, Max hospital, Shalimar Bagh, Delhi. He deposed that on 03.10.2012 injured Dinesh Kumar s/o Mr. Bir Singh was examined by him and he opined the injuries sustained on the person of Dinesh Kumar as 'grievous' in nature caused by sharp weapon. He has proved his endorsement on the MLC already Ex. PW4/A. PW5 was HC Rajesh Raina (inadvertently examined twice as PW5 and PW11). He proved the relevant entry in the duty roaster register regarding the duties of SI Dinesh Kumar, PSI Rahul and HC Sanjeev, as Ex. PW5/A and relevant entry in the duty roaster register regarding the duties of Constable Prashant and Constable Vikram as Ex. PW5/B. He also proved xerox of RC No. 109/21/12 of documents i.e. two pullandas sealed with seal of CPS and third with seal of X108A as Ex.
PW11/C (OSR). He has proved the copy of relevant entry in register no.19 as Ex. PW11/A. PW6 was HC Satpal Singh who was working as duty officer on 07/08.09.2012 from 12.00 midnight to 8.00 am. He proved the copy of DD No. 8A as Ex.PW6/A. PW7 was Inspector Yashveer Singh who was working as SHO at PS Jagat Puri on 08.09.2012. He forwarded the charge sheet and proved a complaint under Section 195 Cr. PC as Ex.
PW7/A.
FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 7/18
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date: 2021.09.14
16:59:33 +0530
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PW9 was Sh. Naresh Kumar, Senior Scientific Officer, Biology FSL, Rohini, Delhi. He examined the parcels Mark Ex. 1a, 1b, 1c, 2 and 3 and proved his detailed Biological Report Ex. PW9/A and detailed Serological report Ex. PW9/B. PW13 was HC Ratish who deposed that on 08.09.2012 on receipt of DD No. 8A he alongwith SI C.P. Singh reached at Max Balaji Patparganj, I.P. Extension, Delhi where SI Dinesh Kumar was admitted. IO SI C.P. Singh collected his MLC and recorded statement of SI Dinesh Kumar. He further deposed that IO prepared rukka and handed over the same to him for registration of FIR. PW13 deposed that after registration of FIR in the police station, he came back to Max Balaji hospital and handed over the copy of FIR and rukka to IO. PW13 deposed that IO seized the sealed pullanda received from doctor vide seizure memo Ex. PW13/A. PW16 was HC Nandu Singh who deposed that on 19.11.2012 he took pullandas to FSL Rohini and got them deposited vide RC No. 109/21/12, already Ex. PW11/C, and handed over its acknowledgment, already Ex. PW11/D to MHC(M).
PW18 Ct. Neeraj Kumar deposed that on 05.04.2013 he was posted at P.S. Jagatpuri and was working as Naib Court in court no.21, Karkardooma Courts, Delhi. He deposed that on that day accused Jamil surrendered before the court and SI Dinesh formally arrested accused Jamil with prior permission of Ld. MM, vide arrest memo Ex. PW18/A and personal search FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 8/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2021.09.14 16:59:50 +0530 9 memo Ex. PW18/B. He is also witness to the disclosure statement of accused Jamil exhibited as Ex. PW18/C. PW19 SI C.P. Singh is the IO of this case, who deposed about the steps taken during investigation. He proved various memos besides sending exhibits collected to the FSL, did other formalities and filed chargesheet before the Court.
6. Statement of both accused Mohd. Shakeel and Jamil was recorded under Section 313 of Cr. PC wherein both claimed themselves to be innocent and having been falsely implicated in case.
7. I have heard Mr. Rakesh Kumar, Ld. Addl. P.P. for State, Ld. Defense Counsel Mr. Riaz Mohd. for both accused and have meticulously perused the entire record and given my consideration to the rival contentions putforth.
8. It is argued by Ld. Addl. P.P for State that the testimony of material eye witnesses namely injured SI Dinesh Kumar (PW1), Ct. Prashant (PW10), Ct. Vikram Singh (PW8), HC Rohtash (PW14) and SI Rahul (PW17) are consistent regarding the main purport of the Prosecution case put forth about the sequence of occurrence in respect of both accused who voluntarily obstructed police officials and caused grievous hurt to SI Dinesh Kumar while discharging their duties and with common intention assaulted and used criminal force upon SI Dinesh Kumar in execution of his public functions. It is argued that the testimony of witnesses is coherent and the prosecution has successfully been able to establish its case against both FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 9/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:00:27 +0530 10 accused.
9. Ld. Counsel for accused had argued that prosecution case suffered from inherent discrepancies. It is argued that all Prosecution witnesses are police officials and their testimony cannot be trustworthy in absence of any independent witness to the occurrence. It is argued that accused Mohd. Jamil was of short height and could not have caught hold of injured SI Dinesh. It is argued that the injured had a revolver and he could have taken out the same in defence and it is not believable that many police officials having entered the house of accused persons would have received knife attacks and in turn would not do anything in their defence. It is argued that no such incident ever happened and the injuries received by injured SI Dinesh on his fingers were due to the fact that these got stuck in the iron door of the house. It is argued that no independent witness was joined at the time of alleged raid in the house of accused nor any public person was examined. It is argued that police registered an FIR No. 391/12 u/s 324/341/506 IPC against accused on the complaint of Bhanu Pratap, though the said Bhanu Pratap in his statement before doctor at the time of MLC stated that he was stabbed by some unknown persons. Ld. Col.
therefore argued that police manipulated the facts and falsely registered the present FIR after conducting an illegal raid at odd hours and cooked up false story to implicate the accused persons. It is further argued that the recovery of knife was planted one as IO PW19 SI C.P. Singh and PW14 Ct. Rohtash admitted that no public persons were joined at the time of arrest FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 10/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:00:46 +0530 11 or search.
10. The case of prosecution primarily hinges upon the testimony of material witnesses namely injured/victim SI Dinesh Kumar (PW1) and eye witnesses Ct. Vikram Singh (PW8), Ct. Prashant (PW10), HC Rohtash (PW14) and SI Rahul (PW17) besides the testimony of the Dr. Pratika (PW4) and Dr. Kishalay Datta (PW15).
11. So far the plea of Defence that the case rested on evidence of police witnesses and thus not reliable, reference can be made to the matter of State of Gujarat Vs. Raghunath Vaman Rao Baxi (AIR 1985 SC 1092) wherein it was held that : "In appreciating oral evidence, in criminal cases, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter. Where the witness is found to be partly truthful or to spring from tainted sources, the court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a court is not entitled to reject the evidence of a witness merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigation officer and who might have been requested to assist the investigating agencies. For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. It is extremely unfair to a witness to reject his evidence by merely giving him a label".
FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 11/18 Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date:
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12. In the matter of State of Karamjit Singh Vs. State (AIR 2003 SC 1311), it was held that : "....There is no principle of law that without corroboration by independent witness testimony of police witnesses cannot be relied upon; presumption that person acts honestly applies as much in favour of police personnel as of other person; it is thus not proper judicial approach to distrust and suspect".
13. Reading out the testimony of injured PW1 as a whole, I find that the witness has supported the case of prosecution when he vividly narrated the occurrence and deposed that he reached the spot alongwith SI Rahul, Ct. Vikram and Ct. Prashant to the house of accused, accused Jamil came out and asked them the reason of coming to which PW1 told that they had come in connection with a case registered against accused Shakeel. He deposed that accused Jamil told that Shakeel was not present in house. In meanwhile accused Shakeel came out and started abusing them all and said 'kis saale ki mere khilaf mukadma darj karane ki himmat ho gai'. PW1 deposed that while abusing so, accused Shakeel told Jamil to catch hold of the police officials and to teach them a lesson. PW1 deposed that accused Jamil caught hold of him from behind and exhorted Shakeel to kill him, on which accused Shakeel attacked PW1 at his neck with knife. PW1 tried to save himself but got knife injuries on his right cheek. PW1 deposed that accused Shakeel again attacked him with knife at his stomach but PW1 caught the blade of knife with his hands in defence and in the process injured his fingers. PW1 deposed that police staff tried to FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 12/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:01:48 +0530 13 apprehend accused Shakeel, however he ran away brandishing knife at them. He further deposed that accused Jamil also managed to flee from spot. Despite being chased, he could not be caught. The testimony of PW1 is corroborated by the eye witnesses namely Ct. Vikram Singh (PW8), Ct. Prashant (PW10), HC Rohtash (PW14) and SI Rahul (PW17) who supported the prosecution case in almost unequivocal terms while describing about the incident and injuries received during such attack from accused persons.
14. PW4 Dr. Pratika, Max Balaji hospital proved the MLC of injured as Ex. PW4/A and deposed that the injured was brought to Max Balaji hospital and was examined by her at about 5.45 am of 08.09.2012 and following injuries were found on his person : CLW 56 cm on right cheek CLW on right palm, 2.3 cm on right index finger and little finger.
15. PW15 Dr. Kishalay Datta, HOD Emergency, Max hospital deposed that on 03.10.2012 injured was examined and the injuries sustained were grievous in nature caused by sharp weapon. Both witnesses namely Dr. Pratika PW4 and Dr. Kishalay Datta PW15 were not cross examined despite opportunity granted.
16. Further observable is the cross examination of material witnesses where except asking for denial of incident, nothing material could be elicited from them. Accused could not explain FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 13/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2021.09.14 17:02:04 +0530 14 much less to prove the alternate manner in which victim suffered injuries. The plea of defence that PW1 suffered injuries after his fingers got stuck in door is not credible enough to be considered particularly when the victim received serious knife injuries on his cheek as well and injuries were with sharp weapon of cutting. Moreover this plea was not taken by accused persons in their statement under Section 313 Cr. PC. The testimony of SI Dinesh Kumar (PW1) and eye witnesses Ct. Vikram Singh (PW8), HC Rohtash (PW14) and SI Rahul (PW17) coupled with the medical evidence and testimony of other witnesses proves beyond doubt that accused persons had inflicted injuries upon the victim while obstructing him in discharge of their public duties. Accused Mohd. Shakeel used sharp edged knife with a blade of 14.5 cm and handle of 18 cm and as per khaka of the knife Ex.PW14/D, it had a total length of 32.5 cm. As per Notification by Delhi Government No. F.13/203/78Home(G) dated 17.02.1979, possession of a sharp edged object with a blade of 7.12 cms length and 1.72 cm of blade is prohibited for being defined as an 'Arm' within the meaning of Section 2 (c) of the Arms Act, 1959.
17. Now the question arises as to whether accused could be charged for the commission of offence under Section 307 of IPC.
18. Section 307 IPC comes into play irrespective of the infliction of injuries and, therefore, nature of injury is not the deciding and governing factor to find out whether the case is of attempt to commit murder or not. It is the intention and FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 14/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:02:19 +0530 15 knowledge which are the most crucial factors. Injuries, on most of the occasions take a back seat though the nature of injury may prove to be very handy at the time of deciding quantum of sentence.
19. Burden is on the prosecution to prove both, namely, (i) the act (actus reus) and (ii) the intention (mens rea). It is required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of murder. Naturally, the intention or knowledge of such circumstances are to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard.
20. It seems quite manifest that the police officials had gone to the house of accused persons concerning enquiry of another FIR No. 391/2012 registered under Section 324/506 IPC. It was a case where accused Jamil abused filthily and co accused Shakeel came out and exhorted Jamil to catch hold of police officials to teach them a lesson. It is still required to be seen as to whether accused were actually having any intention or knowledge to commit murder.
21. From the circumstances, evidently there was no premeditation and it was evidently a case of sudden eruption of scuffle as both accused were irate at presence of policemen at their house. Both accused came in a flash, gave knife injuries to SI Dinesh and then vanished in a jiffy. The occurrence was preceded by verbal brawl. If MLC is to be believed, the victim FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 15/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:02:48 +0530 16 received injuries i.e. CLW 56 cm on right cheek and CLW of 2.3 cm on right palm and fingers. Keeping in mind that above said backdrop, at best, it can be said that accused were ostensibly infuriated by the visit of police officials.
22. In the case of Bishan Singh @ Anr. Vs. The State (2007) 13 SCC 65, the injured had suffered seven injuries including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also suffered fracture with dislocation of wrist joint and the Apex Court instead of convicting accused under Section 308 IPC held that case would fall under Section 323/325 IPC. It was also held that before accused could be held guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing.
23. In Shiksha Vs. State (Crl.A. 34/2006 DOD 27.01.2014), accused threatened to kill complainant because she had informed the police. He pulled out a knife and gave several blows upon her person. She suffered injuries on her chest, left wrist and abdomen. Hon'ble Delhi High Court held that attracting Section 307 IPC necessarily encompasses an intention or knowledge on the part of offender. In order to amount to an attempt to murder, the act committed must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim. It was also observed that an offence under Section 307 IPC was a very serious offence and it required the very same factors to be proved as were noted to prove an offence under Section 302 IPC except in this case the act fell short of a FIR No. 392/12 State Vs. Mohd. Shakeel and anr. Page No. 16/18 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2021.09.14 17:03:09 +0530 17 death of the deceased which was necessary under Section 302 IPC. Taking stock of ocular evidence and medical evidence, attendant circumstances, the fact that accused had no enmity with the victim, the conviction was altered from Section 307 IPC to Section 326 IPC.
24. In Manoj Kumar Vs. State (Crl.A. No. 749/2002 DOD 13.10.2004), Delhi High Court while altering conviction from Section 307 IPC to Section 326 IPC, observed as under: ".....Voluntarily causing hurt by means of an instrument used as a weapon of offence which results in a simple injury is an offence punishable under Section 324 IPC. If the hurt is grievous and the weapon is dangerous the offence, being of a higher degree of culpability, is one punishable under Section 326 IPC. An act which is done with knowledge or intention that it is likely to cause death, is an offnece of attempt to murder and is punishable under Section 307 IPC. The line of demarcation between an offence punishable under Section 326 IPC and the one punishable under Section 307 IPC is that to fall within Section 307 IPC, the act must be done with such mensrea as would have constituted the act of murder if death had occurred shortly stated, in an attempt to commit murder, all the elements of murder exist except the fact of death.
15. Intention of the accused depends upon the facts and circumstances of the particular case. (i) The nature of the weapon used, (ii) express intention at the time of act, (iii) severity and persistence of the blows. All have to be considered cumulatively in arriving at any conclusion. In the absence of proof of other circumstances, and in particular motive, the accused must ordinarily be deemed to have intended to cause only the kind of injury which has been actually caused....."
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25. In the instant case, though a knife was used, but having regard to nature of injuries and the genesis of occurrence, particularly when no previous enmity has been proved, it is difficult to hold that the intention was to cause death. The occurrence arose out of quarrel and blows were given on the spot. It was not premeditated. Keeping in mind the overall circumstances of the case and given my foregoing discussion, I hereby hold both accused guilty for the offences under Section 324/34 IPC alongwith Section 186/333/353 of IPC and further hold accused Mohd. Shakeel guilty for the offence under Section 27 of Arms Act.
Let they both be heard on the point of sentence.
Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2021.09.14
17:03:49 +0530
Announced in the open court (Ms. Ravinder Bedi)
on 14th day of September 2021 ASJ02/ECOURT
Shahdara/KKD/Delhi
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