Delhi District Court
State vs 1. Deepak @ Mirgi on 18 July, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 571 of 2016
(I.D. No. : 02402R0185182013)
State Versus 1. Deepak @ Mirgi
S/o Late Kiran Pal
R/o 16/336, Kalyanpuri, Delhi.
2. Deepak Singh @ Deepla
S/o Sh. Bhajan Singh
R/o 11/159, Kalyanpuri, Delhi.
3. Sumit
S/o Sh. Munna Lal
R/o 17/264, Trilokpuri, Delhi.
FIR No. : 291/12
Under Section : 307/34 IPC
Police Station : Kalyanpuri
Chargesheet Filed On : 20.05.2013
Chargesheet received by this Court on: 06.02.2014
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 04.07.2018
Judgment Announced On : 18.07.2018
J U D G M E N T
1.The case of the prosecution in brief is that, in the intervening night of 31.08.2012 and 01.09.2012 on receipt of DD no. 7A, SI Haroon SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 Khan alongwith Ct. Anil Kumar went to the spot i.e. near old Sauchalya, Block4, Trilokpuri where they came to know that the injured has already been removed to LBS Hospital in a TSR. Thereafter, they reached at LBS Hospital where injured Deepak @ Vicky was found admitted and IO collected his MLC no. 9464/12. They also met Babu, brother of injured in the hospital and recorded his statement.
2. In his statement, complainant Babu stated that on 01.09.2012, he was sleeping in his jhuggi alongwith his brother Deepak @ Vicky. At about 2.00 am, accused Deepak @ Mirgi and Deepla came to his jhuggi and called his brother on the plea of walking. He asked his brother not to go with them but despite that his brother accompanied the accused persons. At about 4.00 am, he woke up and found that his brother was not there. He called the PCR and also searched his brother and reached at Block1 Chowk, Trilokpuri where one auto driver named Deendayal was present and came to him and told that he had taken one boy aged 20/22 years in injured condition to LBS Hospital and got him admitted there who told his name as Deepak @ Vicky. On this, he stated to TSR driver that the said injured was his brother and he immediately went to LBS Hospital where his brother was found admitted in serious condition due to stab injuries on his stomach.
3. On the basis of statement of complainant, a case u/s 307/34 IPC was registered. Accused persons were interrogated and arrested and site plan was also prepared. After conclusion of the investigation, Chargesheet was filed against the accused persons before the court of Ld. MM for the SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 offences punishable under Sections 307/34 IPC.
4. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Section 307 IPC was exclusively triable by it.
5. Vide order dated 01.08.2014, passed by Ld. Predecessor, charge under Section 307/34 IPC was framed against the accused persons. To the said charge, the accused persons pleaded not guilty and claimed trial.
6. In support of its case, the prosecution examined 14 witnesses in all.
PW1 Deen Dayal stated that on 01.09.2012 at about 4.45 am, he was standing with his TSR bearing no. DL1RF1279 at Block1 Chowk, Trilokpuri near iron saria shop. In the meantime, one boy namely Deepak, who was in injured condition and blood was oozing out from his wounds, came from nearby bushes and told that he had received knife injuries and on his request, he took said boy in his TSR to LBS Hospital and got him admitted there.
PW2 Babu is the brother of injured Deepak @ Vicky who stated that on 01.09.2012, he was sleeping in his jhuggi alongwith his brother Deepak @ Vicky when at about 2.00 am, accused Deepak @ Mirgi alongwith Deepla and Sumit came to his jhuggi to call his brother on the plea of walking to which he told to his brother not to accompany them but despite that, his brother accompanied the accused persons. At about 4.00 am, he woke up and found that his brother was not there. He searched his SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 brother in the nearby area. On inquiry, one auto driver present near the road informed him that he had taken one boy named Deepak @ Vicky in injured condition to LBS Hospital and got him admitted there. PW2 Babu made a call to PCR and PCR Van reached there and took him to LBS Hospital where he met his brother at the hospital who found that his brother was in serious condition due to stab injuries. He has proved his statement Ex.PW2/A, arrest memo, disclosure statement and pointing out memo qua accused Deepak @ Mirgi vide Ex.PW2/B to PW2/D respectively.
PW3 Deepak @ Vicky is the victim of present case who stated that on 01.09.2012, he was sleeping in his jhuggi under the influence of liquor when accused Deepak @ Mirgi and Deep Singh @ Deepla came to his jhuggi to call him to talk to him on some issue. His brother Babu advised him not to go outside but despite that, he accompanied the accused persons. Outside the gali, accused Sumit was also present and all accused persons took him to Block 15 Chowk. At about 2.00 am, all accused persons told him that they had to settle some previous issue with him and scuffle occurred between him and accused persons. Accused Sumit took out one knife and attacked upon him with knife exhorting accused Deepak @ Mirgi to kill him and at that time, other two accused persons caught hold him. As a result of injuries, he suffered injuries on his stomach. After causing injuries to him, all accused persons fled away from there. He rushed towards Block4 park where he became unconscious and when he regained consciousness, he went towards Block1 Chowk and saw one TSR in which SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 driver of TSR took him to LBS Hospital. He proved the site plan Ex.PW3/A PW4 ASI Birpal Singh has proved the DD no.5A is Ex.PW4/A, DD no.7A is Ex.PW4/B, FIR is Ex.PW4/C, endorsement on rukka is Ex.PW4/D and Certificate u/s 65B of Indian Evidence Act is Ex.PW4/E. PW5 Ct. Omjeet has proved the sealed parcel containing blood stained clothes of injured Deepak vide Ex.PW5/A. PW6 Dr. Shaleen Tiwari, Sr. Resident from LBS Hospital proved his opinion on the MLC no. 9464/12 of injured Deepak @ Vicky Ex.PW6/A. PW7 Ct. Rakesh has proved personal search memo vide Ex.PW7/A. PW8 Dr. Rakesh Singh has proved the MLC no. 9469/12 dated 01.09.2012 of patient Deepak @ Vicky prepared by Dr. Paras vide Ex.PW8/A. PW9 W/Ct. Kamlesh Yadav has proved the PCR form vide Ex.PW9/A, Certificate u/s 65B of Indian Evidence Act Ex.PW9/B and PCR form dated 01.09.2012 in judicial file as Ex.PW9/A1.
PW10 Ct. Jagpal Singh has proved the arrest memo, personal search memo, disclosure statement and pointing out memo qua accused Deep Singh @ Deepla vide Ex.PW10/A to PW10/D respectively.
PW11 Ct. Anil Kumar stated that in the intervening night of 31.08.2012 and 01.09.2012, on receipt of DD7A, he alongwith IO SI SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 Haroon Khan went to spot i.e. near old Sauchalya, Block4, Trilokpuri where they came to know that the injured has already been removed to LBS Hospital in a TSR. Thereafter, they reached at LBS Hospital where injured Deepak @ Vicky was found admitted and IO collected his MLC. They also met Babu, brother of injured and IO recorded his statement and prepared rukka and handedover to him to PS for registration of FIR. After registration of the FIR, he reached at LBS Hospital and handedover the copy of FIR and rukka to IO. They also went in search of accused Deepak @ Mirgi but he could not be found.
PW12 Ct. S.P. Singh has proved the arrest memo, personal search memo, disclosure statement and pointing out memo qua accused Sumit vide Ex.PW12/A to PW12/D respectively.
PW13 ASI Devanand has proved the PCR form regarding missing of brother of caller from his house vide Ex.PW13/A. PW14 Smt. Shashi Bala Pahuja, SSDO (Biology) from FSL has proved the detailed report of exhibits vide Ex.PW14/A. It is pertinent to mention here that the Investigating Officer SI Haroon Khan was reported to be expired and his Death Certificate was filed alongwith report on process by ASI Chandervir, Incharge VB. Thereafter, prosecution evidence was closed by Ld. Addl. P.P. for the State.
7. The statement of all the accused persons was recorded under Section 313 CrPC in which they denied all the incriminating circumstances against them. They pleaded their innocence and further pleaded their false SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 implication. The accused persons did not lead any evidence in their defence except accused Sumit who wants to lead defence evidence.
8. Accused Sumit, in his defence, examined his mother Smt. Kaushalya as DW1 who stated that on 28.11.2012, there was marriage of her elder son Vineet and after his marriage, relatives of her daughter in law Manisha came to her house for Phera and accused Sumit was at home for the entire night and looking after the guests.
9. I have heard Ld. Addl. P.P. for the State and Ld. defence counsels as well as carefully gone through the material on record.
10. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against all the accused persons through evidence including the statement of PW3 victim/injured Deepak @ Vicky in consonance with all other material witnesses and medical evidence and the culpability of testimonies of the accused persons stands fully established.
11. On the other hand, Ld. Counsel for accused persons submitted that they have been falsely implicated in the present case. Their signatures were obtained on blank paper under the pressure and coercion. They did not make statement and they did not commit any crime. Accused Sumit submitted that he was present at his house alongwith his family members at the time of incident and he was lifted from his house by police and falsely implicated in this case with the ulterior motive. Accused Deepak @ Mirgi and accused Deep Singh @ Deepla are also stated on similar version in their statement recorded u/s 313 CrPC. Accused Sumit have examined DW1 SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 Smt. Kaushlya in their defence who is mother of accused Sumit. She stated that on 28th November there was marriage of her elder son Vineet. It is stated that after the marriage, relatives of her daughter in law Manisha came to her house and on the date of incident, her son Sumit was at home for the entire night and looking after the guests.
12. In view of the material available on record as well as the prosecution case circumference to the statements of PW1 Deen Dayal, PW 2 Babu and PW3 Deepak @ Vicky. PW3 Deepak @ Vicky stated that he was called by the accused persons and they asked him to come out of his house as they were intending to talk him on some issue. He came outside from his house. His brother Babu advised him not to go outside but he did not listen him. Outside his house in the gali, accused Sumit was also present. They had taken him to 15 Block Chowk while talking. It was about 2 am. There all three accused persons told him that they had to settle some previous issue with him. First of all three occurred scuffling between him and accused persons. The accused persons were also abusing him. Accused Sumit took out one knife and attacked upon him with knife exhorting accused Deepak @ Mirgi, "Jaan se maar de". Accused Sumit attacked hi with knife on his stomach as a result of which he sustained hurt on his stomach. At the time when accused Sumit was attacking him with knife, other accused persons namely Deepak @ Mirgi and Deep Singh @ Deepla were catching hold of her. All of the fled away towards 15 Block after causing him injuries. He rushed towards 4 Block park where he become SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 unconscious. When he regained consciousness, he was still in the said park. He went towards Block No. 1 Chowk while sitting intermittently and there he saw a TSR. He sat in the TSR and driver took him to LBS Hospital. He became unconscious in the hospital. He had been bleeding throughout the way to Hospital and when he regained consciousness he found himself in the ward. Police also met him and recorded his statement. After discharge from the hospital, he had shown the place of incident to the police and police had prepared site plan at his instance which is Ex.PW3/A. When he was bleeding. He had taken out my shirt and tied it against the wound on my stomach to stop the bleeding. That shirt had become book stained. He can identify his shirt if shown to him. The shirt is Ex.P1 and Vest Ex.P2. During the cross examination by Ld. Addl. P.P., PW3 Deepak @ Vicky has been suggested that accused Deepak @ Mirgi had exhorted accused Sumit to kill him. In his cross examination by Ld. Defence counsel, it has been deposed by him that he was having a meat shop at Gazipur Mandi and he used to go to Mandi at 5 am and remain at his shop till 1011 am. On the day of incident, he went to his shop at 5 am and came back at about 11 am or 12 noon. He had consumed liquor at about 45 pm at his house on that day, he was alone when he has taken liquor. At that time only his brother Babu was present in the house. His Nani, Mama, mother and sister namely Radhika live in the said house besides him and Babu. His house is situated in Jhuggi cluster. His elder Mama's jhuggi is situated adjacent to his Jhuggi. He went to his bed at about 1 am on that day. Other members of his family SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 including Babu were already asleep by 89 pm. Two cots can be laid in his Jhuggi. It was also suggested to him that he was accused in 12 criminal cases in which he has been acquitted. One was of theft and one was of quarrel. He was also one of the accused in the abovesaid cases. He was convicted the theft case by the lower court and he was acquitted by the Session court. He himself had bolted the door of jhuggi from inside at about 89 pm. Again said, his Nani bolted the door. On the date of incident, he was not having any mobile phone. I did not know whether Babu was having any mobile phone. He did not know who was using mobile No. 8860506886 in his house on the day of incident. At the relevant time, Babu was also in business of selling chicken. On the day of incident, Babu had gone to shop with him and came back with him. Houses of accused Deep Singh @ Deepla and Deepak @ Mirgi are at 5 minutes walking distance from his Jhuggi. Prior to the day of incident, he had met accused Deep Singh @ Deepla and Deepak @ Mirgi one day before also. Accused Deep Singh @ Deepla and Deepak @ Mirgi had come to his Jhuggi on the day of incident at about 2 am. Accused Sumit was not with them at that time. He was standing outside at that time. He had seen accused Sumit at a distance of about 1015 steps towards Mandir from his Jhuggi. He had told to do 'hisab kitab' due with accused Sumit. His Nani had opened the door of the Jhuggi and Babu woke up at that time. Prior to the incident, he had never gone with accused persons at 2.003.00 am. The spot of incident is about 810 minutes walking distance from his Jhuggi. He had earlier never seen the TSR driver who took him to SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 the hospital. He saw the TSR at 23 minutes walking distance from the place where he regained the consciousness. He was bleeding from his mouth in the TSR. He was unconscious at the hospital as well. He did not know at what time Babu had come in the hospital. He met with Babu when he came out from the ICU. He cannot tell whether he came out from the ICU on the same day or after four days. He did not know when his statement was recorded. He did not note down the name of the TSR driver and number of the TSR. He cannot say whether he was discharged from the hospital after two days or after one month. He was wearing shirt (Ex.P1) and vest (Ex.P
2) at the time of incident when he received injuries. After sustained injuries, he became unconscious so he cannot tell at what time the impact of consumption of alcohol by him was ended. He did not tell his name, parentage and address to the doctor in the hospital. Police did not meet him at his Kalyanpuri address after discharged from the hospital. After about one week of his discharge from the hospital, he had gone to Modi Nagar to his permanent address and police did not meet him there also. It is denied that he was having enmity with other persons or that those persons had caused injuries to him. It is denied that due to enmity with the present accused persons, he had falsely implicated the present accused persons. It is denied that he was under the influence of liquor and he was not aware who had caused injuries to him or that accused Deepak @ Mirgi and Deep Singh @ Deepla was not involved in the incident. It is denied that he has been deposing falsely. It is denied that there was enmity between him and accused SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 Deep Singh @ Deepla. It is denied that due to this enmity he has falsely implicated him in this case. It is denied that accused Deepl Singh @ Deepla was not present at th time of incident at the spot or that accused Deep Singh @ Deepla never came to his house to call him on that day.
13. PW1 Deen Dayal, TSR driver who had taken the victim to the hospital when he received injuries. Injured has not known to him.
14. PW2 Babu, brother of the victim stated in his examination in chief that at about 4 am, he woke up and found that his brother was not there. The police official met him at about 4 am at Chand Cinema after his call, thereafter he alongwith the police officials went to the LBS Hospital. His statement was recorded only once by the police at LBS Hospital. After about 34 days of the incident, police officials obtained his signatures on two papers. It is denied that accused Deepak @ Mirgi had not come to his house on that night or that his brother had not gone with accused persons. It is denied that accused Deepak @ Mirgi was not arrested in his presence. It is denied that he is deposing falsely.
15. PW6 Dr. Shaleen Tiwari proved the MLC No. 9664 /2012 of injured Deepak @ Vicky. He had opined that nature of injuries sustained by the patient as "grievous" on the basis of treatment papers and casesheet.
16. PW8 Dr. Rakesh Singh, CMO, LBS Hospital identifed the MLC No. 9464/12 regarding the nature of injuries dated 01.09.2012 Ex.PW8/A and same is in handwriting of Dr. Paras. As per examination by Dr. Paras, patient Deepak had sustained incised wound measuring 2 cm X 1 SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 cm on abdominal region and the patient was referred by Dr. Paras to S R Surgery for detailed examination of injury and expert opinion.
17. The accused persons are facing trial u/s 307/34 IPC. Section 307 IPC defined as "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 person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is herein before mentioned".
18. In case Hari Singh Vs. Sukhbir Singh, AIR 1988 SC 2127, the intention or knowledge of the accused must be such as is necessary to constitute murder. The question of intention to kill or the knowledge of death in terms of section 307, is a question of fact and not one of law. It would all depend on the facts of a given case. The important thing to be borne in mind in determining the question whether an offencer under section 307, is made out is the intention and not the injury. It is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract, the provisions of section 307 IPC is the guilty of intention or knowledge with all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the result. As per section 307 IPC, if a man commit an act with such intention and knowledge and under such SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 circumstances, that if death had been caused, the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual course of events but for something beyond his control which prevented that result his act would be punishable as an attempt to murder.
19. In case of Hari Kishan Vs. State of Haryana, AIR 1988 SC 2127, the Supreme Court held that while examining whether a case of commission of offence under section 307 IPC is made out, the Court is required to see, 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 IPC, the intention precedes the act attributed to the 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. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under section 307 IPC.
SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22
20. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim with an intention to cause death. Even so in a case, the Supreme Court held that where four or five persons attached a man with deadly weapons like Farsa etc., it could be presumed that they had intention to cause death but as the sharp edge of the Farsa was not used in causing the injuries, the accused were liable to be punished under section 326 and 324 IPC depending on the nature of injury caused by each and not under section 307 IPC.
21. 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 deducted 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 of 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 of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 in order to be criminal need not be the 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 the offence, 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 part of the body or the assailant lying in wait armed with dangerous weapon or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury.
22. The essential ingredients required to be proved in the case of an offence under Section 307 IPC are :
(i). that the death of a human being was 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.
23. In order that a person may be guilty of attempt to murder, the following two ingredients of the offence must be present :
(a) an intention or knowledge of committing murder SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22
(b) the doing of an act towards it.
For the purpose of Section 307 IPC, what is material is the intention or knowledge, and not the consequences of the actual act done for the purpose of carrying out the intention. That section clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the violation of the agent. To determine whether an act falls within the ambit of section 307 IPC, on the wording of this Section, three considerations appear to be essential :
(i) the nature of the act done,
(ii) the intention or knowledge of the agent, and
(iii) the circumstances under which the act is done.
24. In the instant case, PW3 Deepak @ Vicky himself in his examination in chief stated that he was called by accused Deepak @ Mirgi and Deep Singh @ Deepla who asked him to come out of the house as they were intending to talk him on some issue. Accused Sumit was also present in the gali. Accused Sumit took out one knife and attacked upon him with knife exhorting accused Deepak @ Mirgi "Jaan se maar de". Accused Sumit attacked him with knife on his stomach as a result of which, he sustained injury on his person. At that time when accused Sumit was attacking him with knife, other accused persons namely Deepak @ Mirgi and Deep Singh @ Deepla caught hold him. All of them fled away towards SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 15Block after causing injuries. While in his cross examination on behalf of the accused, it is stated by the victim Deepak @ Vicky that he was under the influence of liquor at about 4.00 5.00 pm at his house on that day. At that time, only his brother Babu was present in the house and his other family members also live in the said house besides him and Babu. His house is situated in jhuggi cluster and his elder Mama's jhuggi is situated adjacent to his jhuggi. He further stated that he went to his bed at about 1.00 pm on that day. Other family members including Babu were already asleep by 8.00 9.00 pm. It is further stated by him that accused Deepak @ Mirgi and Deep Singh @ Deepla had come to his jhuggi on the day of incident at about 2.00 am. Accused Sumit was not with them at that time. He was standing outside the house. It is denied by PW3 Deepak @ Vicky that he was having enmity with other persons or that those persons had caused injuries to him. It s further denied that due to enmity with the present accused persons, he had falsely implicated the present accused. It is further denied that accused Sumit was not involved in the incident in any manner nor he caused any injuries to him nor he was present at the spot.
25. Though Ld. defence counsel has taken a defence that the injuries were caused to PW3 Deepak @ Vicky by some other persons and due to enmity with the accused persons, they have been falsely implicated in the present FIR. It is nowhere mentioned that the accused were present at their houses. On the contrary, PW1 stated in his examination that injured told him that he had received knife injuries and he took Deepak @ Vicky to SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 LBS Hospital at about 4.45 am.
26. In the present case, two different contrary defence has been taken, on the one hand it is stated that accused have some issues with PW3 Deepak @ Vicky and at the same time, it is stated that they have been falsely implicated due to enmity.
27. Prosecution has examined PW6 Dr. Shaleen Tiwari, Sr. Resident and PW8 Dr. Rakesh Singh, CMO, both from LBS Hospital to testify that victim Deepak @ Vicky has sustained injuries. MLC Ex.PW6/A prepared by; PW6 Dr. Shaleeen Tiwari in which it has been opined that the nature of injuries is grievous. PW14 Smt. Shashi Bala Pahuja, SSDO (Biology) FSL has examined one shirt and one torn baniyan of the victim and has prepared report Ex.PW14/A.
28. Moreover, as per the provision of 106 of Indian Evidence Act, 1872 says that "when any fact is specially within the knowledge of any person the burden of proving that fact is upon him". This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who assert a fact. The principle underlying section 106 which is an exception to the general rule governing burden of proof applies only to such matter of defence which are supposed to be especially within the knowledge of the applicant. It cannot apply when the fact is such as to be capable of being known also by a person other than the applicant.
29. In case of Sawal Das Vs. State of Bihar, AIR 1974 SC 2276, the Supreme Court observed that section 106 could not be called in aid by SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which, or the intention with which an accused did a particular act alleged to constitute any offence.
30. In the present case, prosecution has examined three material witnesses i.e. PW3 Deepak @ Vicky, PW1 Deen Dayal and PW2 Babu who proved the injuries caused to the victim corroborated with the MLC as well as corroborated with the evidence of PW6 Dr. Shaleen Tiwari, PW8 Dr. Rakesh Singh and PW14 Smt. Shashi Bala Pahuja. The investigation has carried out, does not suggest any influence of the IO at any point of time. Other prosecution witnesses are the official witnesses. In order to carry out a fair investigation, it is a matter of fact that weapon has not been recovered from the possession of the accused persons. It is a matter of fact that no blood stain was detected on the shirt of the victim as per the MLC. It has not been denied that victim had sustained injuries. Though, the accused persons admitted that the victim has sustained injuries. There is no other persons who have been named. The factum of injuries sustained in the abdomen is "grievous" with sharp edged weapon.
31. The Section 325 IPC should be read together with the following section 326 IPC. The graveman of offence of both the section is 'voluntary causing of grievous hurt. The expression 'grievous hurt' has been explained under section 320 IPC. Voluntarily causing grievous hurt has been explained in Notes under section 322 and 325 IPC and the expression hurt SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 has been defined in section 319 IPC. When this voluntarily caused hurt is caused by an instrument, weapon or element catalogued in section 326 IPC. It becomes an aggravated offence punishable under section 326 IPC when the hurt is caused by any other way, it answers the offence under section 325 IPC.
32. The essential ingredients to attract Section 325 IPC are :
i. Voluntarily causing hurt;
ii. Hurt caused must be grievous hurt; and
iii. The grievous hurt must have been caused by dangerous
weapons or means.
33. What would constitute a 'dangerous weapon' would depend upon the fact of each case and no generalization can be made. The heading of the section provides some insight into the factors to be considered. As was noted by Supreme Court in State of U.P. Vs. Indrajeet, 2000 Crl.J. 4663 (SC), there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. At this juncture, it would be relevant to note that in some provisions e.g. section 325 and 326 IPC, expression 'dangerous weapon' is used. In some other more serious offence the expression used is deadly weapon. The fact involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22 whether the weapon was a dangerous or deadly weapon or not.
34. In view of the aforesaid discussion, the ingredient of section 307 IPC does not attract under the present circumstances of the case. Hence, all the accused persons named Deepak @ Mirgi S/o Kiran Pal, Deep Singh @ Deepla S/o Bhajan Singh and Sumit S/o Munna are acquitted for the offence u/s 307 IPC. However, in view of the injuries received by the victim as well as other material and expert evidence on record, the prosecution has been able to prove the case against the accused persons beyond all reasonable doubt whereby all the accused persons namely Deepak @ Mirgi S/o Kiran Pal, Deep Singh @ Deepla S/o Bhajan Singh and Sumit S/o Munna are found guilty for the offence under section 325/34 IPC.
35. For the reasons stated above, all the accused persons namely Deepak @ Mirgi S/o Kiran Pal, Deep Singh @ Deepla S/o Bhajan Singh and Sumit S/o Munna are convicted for the offence u/s 325/34 IPC.
Digitally signed SATINDER by SATINDER
KUMAR
KUMAR GAUTAM
Announced in the open Court
GAUTAM Date: 2018.07.18
Dated : 18th July, 2018 16:04:10 +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
SC No. 571/16 State Vs. Deepak @ Mirgi Etc. Page No.: 22 of 22