Delhi District Court
The Offence Punishable Under Section ... vs State Of Uttar Pradesh And Another on 24 June, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC-254/17
CNR No.DLNE01-008964-2016
FIR: 224/17
POLICE STATION: GOKALPURI
UNDER SECTION: 307/34 IPC
STATE
V
1. AJAY @ BADAKKA
S/O RAM DULARE
R/O E-73/B-6, SANJAY COLONY
GOKAL PURI
DELHI
2. GOVIND @ GENDA LAL
S/O MANAK CHAND
R/O E-73/A279, SANJAY COLONY
GOKAL PURI
DELHI
3. HARI KISHAN @ KALU
S/O NAND KISHORE
R/O E-73/A-443, SANJAY COLONY
GOKALPURI
DELHI
INSTITUTION: 18.09.2017
ARGUMENTS: 24.02.2020
JUDGMENT:24.06.2020 JUDGMENT FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 1/28
1. The offence punishable under Section 307 of the Indian Penal Code, 1860 (here- inafter referred to as "IPC") falls in the category of heinous and serious offences and is to be generally treated as crime against the society and not against the indi- vidual alone. Section 307 IPC is about attempt to murder and reads as under:-
307. Attempt to murder.--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 hereinbefore mentioned.
2. HC Virender posted at GTB Hospital on 09.06.2017 at about 10:00 gave information to Police Station Gokalpuri regarding admission of Rajender (hereinafter referred to as "the injured") in injured condition as the injured received stab injuries by a knife in a quarrel and said information was reduced into writing vide DD no 20A. DD no.20A was assigned to SI Ompal Singh (hereinafter referred to as "the investigating officer") who along with Ct. Nitin reached at GTB hospital and collected MLC of the injured who was found not fit for statement. Rukka was prepared. FIR bearing no 224/17 under section 307 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") was got registered. The investigating officer reached at the spot and called District Crime Team which inspected the spot. The investigating officer collected exhibits. Eye witness Kallu joined investigation who stated that he is working as a labourer and on the day of incident at about 9:00PM, he saw Ajay @ Badakka, Govind @ Genda Lal and Hari Kishan @ Kalu (hereinafter referred to as "the accused") were abusing the injured after surrounding him. The accused Ajay @ Badakka asked the accused Hari Kishan @ Kalu and Govind @ Genda Lal to finish the injured. The accused Hari Kishan @ Kallu caught hold of the injured and the accused Govind @ Genda Lal gave knife blows on the neck and stomach of the injured and thereafter all of them fled away from the spot. The father of the injured namely Deewan was informed who removed the injured to GTB hospital and handed over the blood stained clothes of the injured to the investigating officer. The investigating officer FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 2/28 also recorded the statement of the injured. The accused Ajay @ Badakka and Govind @ Gende Lal were arrested on 11.06.2017 l at the instance of father of injured. The accused Govind @ Gende Lal got recovered weapon of offence i.e. knife. The accused Hari Kishan @ Kalu was arrested on 16.06.02017 at the instance of father of the injured. ASI Karan Singh was assigned further investigation. The accused after completion of the investigation were charge sheeted for offences punishable under sections 307/34 IPC.
3. The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). The concerned Metropolitan Magistrate vide committal order dated 08.09.2017 committed the case to the Court of Sessions and thereafter assigned to this Court for trial in accordance with law.
4. The charge for the offence punishable under section 307/34 IPC was framed against the accused vide order dated 26.09.2017 on allegations that on 09.06.2017 at about 9.00 pm in furtherance of their common intention caused grievous injuries to the injured by using a knife. The accused pleaded not guilty and claimed trial.
5. The prosecution examined Kallu as PW1, Rajender as PW2, Deewan as PW3, HC Mangal Singh as PW4, Dr. Feroz Khan as PW5, Dr. Rana Pratap Singh, Senior Resident, GTB Hospital, Delhi as PW6, Ct. Nitin as PW7, Ct.Shailender as PW8, ASI Inderpal Singh as PW9, ASI Karan Singh as PW10, HC Virender as PW11, SI Ompal Singh as PW12 and ASI Mahavir as PW13.
PW1 Kallu is the eye witness of the incident. PW2 Rajender is the injured. PW3 Deewan is the father of the injured. PW4 HC Mangal Singh participated in the investigation with the Investigating Officer. PW5 Dr. Feroz Khan on 09.06.2017 medically examined the injured. PW6 Dr. Rana Pratap Singh proved nature of injuries received by the injured as grievous. PW7 Ct. Nitin and PW8 Ct. Shailender participated in the investigation with the Investigating Officer. PW9 ASI Inderpal Singh registered FIR bearing no.224/17 under section 307 IPC on the basis of rukka. PW10 ASI Karan Singh conducted part investigation after transfer of the investigating officer. PW11 HC Virender gave information to Police Station FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 3/28 Gokalpuri on 09.06.2017 regarding admission of the injured in GTB hospital. PW12 SI Ompal Singh being the Investigating Officer conducted investigation. PW13 ASI Mahavir on 09.06.2017 was posted with Mobile Crime Team, North East and took ten photographs of the spot.
The prosecution proved DD no.20A as Ex. PW9/C, endorsement on DD no 20A as Ex.PW12/A, computerized copy of the FIR as Ex.PW9/B, endorsement on rukka as Ex.PW9/A, MLC of the injured as Ex.PW5/A, photographs of the spot as Ex.PX1 to Ex.PX10, opinion regarding the nature of injuries as grievous as Ex.PW6/B, , seizure memo of earth control and blood lifted as Ex.PW7/B, site plan as Ex.PW7/A, seizure memo of the clothes of the injured as Ex.PW3/A, arrest memos of the accused Govind @ Genda Lal and Ajay @ Badakka as Ex.PW4/A and Ex.PW4/D, personal search memos of the accused Govind @ Gende Lal and Ajay @ Badakka as Ex.PW4/B and Ex.PW4/E, disclosure statements of the accused Govind @ Genda Lal and Ajay @ Badakka as Ex.PW4/C and Ex.PW4/F, pointing out memos prepared at the instance of the accused Govind @ Genda Lal and Ajay @ Badakka as Ex.PW12/B and Ex. PW12/C, sketch of the knife recovered at instance of the accused Govind @ Genda Lal and seizure memo as Ex.PW4/H and Ex.PW4/J, site plan regarding the recovery of the knife as Ex.PW4/G, arrest memo and personal search memos of the accused Hari Kishan @ Kallu as Ex.PW8/A and Ex.PW8/B, disclosure statement of the accused Hari Kishan @ Kallu as Ex.PW8/D, pointing out memo of the spot prepared at the instance of the accused Hari Kishan @ Kallu as Ex.PW8/C and FSL result as Ex. PX. The prosecution witnesses identified exhibits and weapon of offence as Ex.P1 to Ex.P7. The prosecution evidence was ordered to be close vide order dated 23.07.2019.
6. The respective statement of the accused Govind @ Genda Lal, Ajay @ Badakka and the accused Hari Kishan @ Kallu were recorded under section 313 Cr.P.C vide proceedings dated 13.08.2019. The accused denied the incriminating evidence and pleaded false implication and innocence. The accused stated that the father and the paternal uncle namely Kallu of alleged injured are habitual in lodging false FIRs against the peoples residing in the locality to extort money from them. Deewan FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 4/28 father of the injured is complainant in FIRs no. 591/13, 738/15, 798/15, 804/15 registered at police station Gokalpuri. Deewan and family members of Deewan are the witnesses in said FIRs. The accused preferred to lead defence evidence and examined Ct. Sonu Tomar as DW1 who proved the copies of FIR no 591/13 as Ex.DW1/A, FIR no 738/15 as Ex.DW1/B, FIR no 798/15 as Ex.DW1/C, FIR no 804/15 as Ex.DW1/D
7. Sh. Masood Ahmad, Additional Public Prosecutor for the State and Sh. Rishi Chawla, Advocate/Amicus Curiae for the accused Govind @ Genda Lal, Sh.P. K. Manoj, Advocate for the accused Ajay @ Badakka and Sh.N. K. Gupta, Advocate for the accused Hari Kishan @ Kallu heard. Record perused.
8. The prosecution to prove its case examined the injured Rajender as PW2 and the eye witness as PW1. The role of a witness is paramount in the Criminal Justice de- livery System. A witness has relevant information about a crime and an important constituent of the administration of justice. The witness by giving evidence linking to the charge of the offence performs a sacred duty of assisting the court to dis- cover the truth. A witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. A witness by giving evidence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensation of justice. The Supreme Court in Mahender Chawla V Union of India, Writ Petition (Criminal) No. 156 / 2016 decided on 5 December, 2018 it was observed as under:-
Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The in- strument of evidence is the medium through which facts, ei- ther disputed or required to be proved, are effectively con- veyed to the courts. This evidence in the form of documen- tary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with convic- tion of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the cre- dence of such a victim. However, apart from these witnesses FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 5/28 or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system.
9. The injured PW2 supported case of prosecution and deposed that on 09.06.2017 he was returning from his grocery shop situated at Mustafabad and at about 8- 8:30PM passing through public toilet situated near Building Wala School where he noticed that the accused were consuming liquor. The accused Ajay @ Badakka abused the injured PW2 and uttered words "aaj isse ladai lete hain (Lets quarrel with the injured)". The accused Genda showed a knife to the injured PW2 and threatened him to kill. The accused Govind @ Genda inflicted knife blows to the injured PW2 who sustained injuries on neck, stomach and the left arm. The complainant PW2 came back to home from where he was taken to hospital. The injured PW2 remained under treatment in hospital for five days and could discharge from the hospital after 16-17 days. The injured PW2 also handed over clothes worn by him at the time of incident to police. The injured PW2 in cross- examination conducted on behalf of the accused Govind @ Genda Lal deposed that weapon of offence i.e. knife was like a vegetable cutter knife. The injured PW2 denied suggestions that injuries were self-inflicted to falsely implicate the accused or that he falsely deposed against the accused due to previous enmity. The injured PW2 in cross-examination conducted on behalf of the accused Hari Kishan admitted that there were book shops in front of the spot which was also surrounded by residential area. The injured PW2 denied suggestions that no quarrel took place with the accused or that he sustained injuries somewhere else or that the accused Hari Kishan was not found present at the spot. The injured PW2 in cross- examination conducted on behalf of the accused Ajay @ Badakka deposed that he cannot tell name of public persons present at the spot at the time of incident but one egg vendor was also present at the spot at that time. The injured PW2 denied the suggestions that the accused Ajay @ Badakka did not have any role in the incident or he did not caught hold of the complainant/injured PW2. The prosecution to support and corroborate the testimony of the injured PW2 examined eye witness Kallu as PW1 who deposed that on 09.06.2017 at about 9:00PM he FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 6/28 reached near Building Wala School then he saw that the accused Ajay @ Badakka and Hari Kishan @ Kalu had caught hold of the injured PW2. The accused Ajay @ Badakka was uttering words "iska kaam tamam kar do (Let kill the injured PW2)"
and the accused Govind @ Genda inflicted knife blows on the neck and stomach of the injured PW2. PW1 Kallu informed the father of the injured PW2 and the injured PW2 was taken to hospital. PW1 in cross-examination could not tell the description of the knife used as a weapon of offence. PW3 Deewan, the father of the injured PW2 removed him to GTB hospital and also handed over blood stained clothes to the investigating officer. PW3 Deewan admitted that the injured PW2 was a drug addict and denied the suggestion that due to previous enmity the accused were falsely implicated. The prosecution to prove the injuries sustained by the injured PW2 examined PW5 Dr. Feroz Khan who on examination found three incised wounds as mentioned in MLC Ex.PW5/A. PW5 Dr. Feroz Khan could not tell whether injuries were self-inflicted. PW6 Dr. Rana Pratap Singh opined nature of injuries as grievous. The following facts are apparent from combined testimonies of the above referred PWs:-
i. The injured PW2 on 09.06.2017 was returning from grocery shop and at about 8-8:30PM reached near Building Wala School where the accused were consuming liquor. The accused Govind @ Genda inflicted knife blows to the injured PW2 on neck, stomach and the left arm. The incident was witnesses by PW1 Kallu.
ii. The injured PW2 came back to home and was removed to GTB hospital by PW3 where he was medically examined by PW5 Dr. Feroz Khan on examination found three incised wounds as mentioned in MLC Ex.PW5/A. PW6 Dr. Rana Pratap Singh opined nature of injuries as grievous.
10. The counsel for the accused Ajay @ Badakka argued that no public person was included in the investigation as eye witness PW1 Kallu is real uncle of the injured PW2. The counsel for accused Govind @ Gainda argued that the injured PW2 in cross examination admitted presence of egg vendor but he was not joined as witness. The counsel for the accused Hari Kishan @ Kalu argued that the investigating officer did not record statements of mother and tau ji (paternal uncle) FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 7/28 of the injured PW2 who accompanied the injured PW2 to hospital. The Additional Public Prosecutor argued that PW12 the investigating officer include eye witness namely Kallu PW2. The injured PW2 in cross-examination conducted on behalf of the accused Hari Kishan admitted that spot was surrounded by residential area and there were book shops in front of the spot and in cross-examination conducted on behalf of the accused Ajay @ Badakka admitted presence of one egg vendor at the spot at time of incident. PW12 the investigating officer in cross examination admitted that spot is situated in residential area and there were book shops opposite to the spot. PW12 the investigating officer in cross examination also deposed that no eye witness was available either at spot or at hospital. PW7 Ct. Nitin in cross examination admitted that spot is located in crowded residential area. It is apparent that PW12 the investigating officer did not or attempted to include any independent public person in any part of investigation except PW2 Kallu who is stated to be close relative of the injured PW2.
11. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 8/28 has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
12. The prosecution case is primarily rests on testimonies of the injured PW2 and another eye witness PW1 Kallu. The evidence on the facts of each case has to be analyzed and conclusions drawn, and there cannot be pigeon - holding of evidence on any set formula. In criminal cases court should not adopt mechanical approach in appreciating evidence of prosecution. The broad features of prosecution case, the probabilities and normal course of human conduct of prudent person and some of the factors which are always kept in mind while evaluating the merit of the case.
FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 9/28 The evidence of an injured witness has to be accorded great weightage and a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In Shivalingappa Kallayanappa V State of Karnataka, 1994 Supp (3) SCC 235 it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of MP V Mansingh, (2003) 10 SCC 414, the Supreme Court observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. In Abdul Sayeed V State of MP, (2010) 10 SCC 259, the Supreme Court held that the question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. The Supreme Court took similar view in Jarnail Singh V State of Punjab, (2009) 9 SCC 719 that the special evidentiary status is accorded to the testimony of an injured accused. In State of Uttar Pradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the statement of an injured witness was expressed in the following words:-
The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 10/28 be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
In Vijay & another V State, Crl. A. No. 83/2000 decided on 15.09.2015, the High Court of Delhi observed as under:-
It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else.
The Supreme Court in Duleshwar & another V the State Of M.P. (Now Chhattisgarh), Criminal Appeal No. 1813-1815 / 2017 decided on 21 st January, 2020 discussed two-witness theory which was adopted in case Binay Kumar Singh V State of Bihar,1997 1 SCC 283 wherein it was held when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. It was observed as under:-
It is the quality of evidence that matters and not the quantity; and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident; and when a witness deposes in general terms, it would be useful to adopt the test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question. However, even if adopting such a test of consistency, what is to be looked for is FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 11/28 the 'consistent account of the incident'; and the requirement of consistency cannot be overstretched as if to search for repetition of each and every name of the accused in each and every testimony. In other words, the comprehension of overall evidence on record is requisite; and mere counting of heads or mere recitation of names or omission of any name in the testimony of any particular witness cannot be decisive of the matter. In such facts and circumstances, even the relevance of the corroborating facts and factors like that of recovery of weapons or any other article co-related with the crime in question cannot be ignored altogether.
13. The respective testimony of the injured PW2 and eye witness PW2 Kallu are reliable, trustworthy, narrative of relevant facts connected or related with commission of offence, consistent and corroborating each other on material particulars. The respective testimony of the injured PW2 and eye witness PW2 Kallu are not suffering from any infirmity and can be safely relied on. If the eye witness PW2 Kallu is related to the injured PW2 it does not fatal to the case of the prosecution. If PW12 the investigating officer did not include egg seller or any person from book shop it is not fatal to the case of the prosecution. It is not case of the defense that incident was witnessed by large number of public persons. There is no legal force in argument that case of prosecution is bad for want of non- inclusion of any public person in investigation.
14. The defence counsels argued that alleged injuries on person of the injured PW2 are self-inflicted injuries and are not caused by the accused as alleged by the prosecution. The defence counsels in cross examination of the injured PW2 also attempted to establish that injuries received by him were self-inflicted. The Additional PP argued that there is no evidence which can reflect that injuries on person of the injured PW2 as mentioned in MLC Ex.PW5/A are self-inflicted injuries. Self-injury also known as self-harm, self-mutilation, or self-abuse occurs when someone intentionally and repeatedly harms herself/himself in a way that is impulsive and not intended to be lethal. The most common methods are Skin cutting/ Head banging / hitting / Burning/stab wounds. Self-inflicted injuries are usually superficial but assault meaning to make a physical attack by another person. The motives for creating fabricated injuries are to bring a fake charge of FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 12/28 assault against an enemy, to modify the appearance of a simple injury to draw more attention and severer punishment for the alleged accused. Self-inflicted injuries are seen on parts readily accessible to the individual and are usually superficial, multiple and not situated on vital parts of the body. The injured PW2 deposed that on 09.06.2017 he at about 8-8:30PM was passing through public toilet situated near Building Wala School where the accused Govind @ Genda inflicted knife injuries on neck, stomach and the left arm. The injured PW2 was taken to hospital where he was examined by PW5 Dr. Feroz Khan who on examination found three incised wounds as mentioned in MLC Ex.PW5/A. PW5 Dr. Feroz Khan in cross examination could not tell whether injuries were self- inflicted. PW6 Dr. Rana Pratap Singh opined nature of injuries as grievous. The injured PW2 in cross examination denied suggestions that injuries were self- inflicted to falsely implicate the accused or that he sustained injuries somewhere else. The testimony of the injured PW2 is supported and corroborated by the testimony of eye witness PW1 Kallu. There is no evidence which can reflect that injuries as mentioned in MLC Ex.PW5/A are self-inflicted injuries.
15. The defence counsels argued that there are contradictions in respective testimonies of prosecution witnesses which are raising serious doubts as to the prosecution case. The cousel for the accused Ajay @ Badaka argued that eye witness PW1 Kallu deposed that the accused Ajay @ Badaka and the accused Hari Kishan @ Kalu had caught hold of the injured PW2 and the accused Ajay @ Badakka was uttering words "iska kaam tamam kar do (Let kill the injured PW2)"while the injured PW2 deposed that the accused Ajay @ Badakka abused the injured PW2 and uttered words "aaj isse ladai lete hain (Lets quarrel with the injured)". PW1 Kallu deposed that after incident he went to house of the injured PW2 to inform about incident and informed PW3 Deewan, father of the injured PW2 about incident while the injured PW2 deposed that he ran away from the spot to home and his father PW3 Deewan was at home. Thereafter he was taken to hospital in TSR and his mother and tau ji (paternal uncle) also accompanied him to hospital. PW3 Deewan deposed that one of his neighbors informed him that his son i.e. the injured PW2 sustained knife injuries. Thereafter he informed police FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 13/28 and the injured PW2 was taken to the hospital. PW3 Deewan in cross examination deposed that he don't know name of the neighbor/boy who informed about incident and the injured PW2 was removed to hospital by SHO in his own vehicle. The counsels for the accused also pointed other discrepancies in testimonies of prosecution witnesses. The Additional PP argued that the minor contradictions in testimony of prosecution witnesses are not fatal to the prosecution.
16. Mere marginal variations in the statements of witnesses cannot be dubbed as improvements. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48held as under:-
When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
The Supreme Court in Bhagwan Jagannath Markad and oth- ers V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.
Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
It is apparent from respective testimonies of eye witness PW1 Kallu, the injured PW2 and PW3 Deewan that the injured PW2 received injuries FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 14/28 from knife and was taken to GTB Hospital. The accused Govind @ Gainda Lal inflicted knife blows to the injured PW2. The discrepancies as pointed out by the counsels for the accused are minor and insignificant and do not have any fatal effect on the prosecution case.
17. The counsel for the accused Hari Kishan @ Kalu argued that the prosecution could only prove of presence of the accused Hari Kishan @ Kalu but there is no evidence that the accused Hari Kishan @ Kalu actually participated in commission of offence. Section 34 IPC deals with common intention and the acts done by several persons in furtherance of Common intention. It provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. Section 34 IPC does not state for any specific offence. It only lays down the rule of evidence that if two or more persons commit a crime in order of common intention, each of them will be held jointly liable. Common intention under Section 34 IPC is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such act is done in furtherance of the common intention. Common intention cannot be confused with similar intention. To establish section 34 IPC pre-consent, presence and participation in respect of each accused must be established (See: Jagan Gope & others V State of West Bengal CRA 389/2012 decided on 16th December, 2019 decided by the Calcutta High Court). The injured PW2 deposed that on 09.06.2017 at about 8.00-8.30 pm he was passing through public toilet situated near Building Wala School then he saw that the accused were consuming liquor and the accused Govind @ Genda Lal inflicted knife blows on him. The eye witness PW1 Kallu deposed that the accused Ajay @ Badakka and the accused Hari Kishan @ Kalu caught hold of the injured PW2 and the accused Govind @ Genda Lal inflicted knife blows to the injured PW2. The combined testimony of the injured PW2 and eye witness PW1 Kallu proved that presence of the accused at the spot and infliction of knife blows to the injured PW2 by the accused Govind @ Genda Lal while the accused Hari Kishan @ Kalu and FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 15/28 the accused Ajay @ Badakka caught hold of the injured PW2. There is nothing in cross examination of the eye witness PW1 Kallu and the injured PW1 which can falsify their testimony. The above mentioned facts are sufficient to constitute common intention in commission of offence. There is no force in argument advanced by the counsel of the accused Hari Kishan @ Kalu that the accused Hari Kishan @ Kalu is not vicarious liable for offence.
18. The counsel for Ajay @ Badakka argued that the investigating officer PW12 did not seize blood stained T-shirt of the injured PW2 which is fatal to the case of the prosecution. The injured PW2 deposed that at the time of incident he was wearing black colour trouser and T-shirt and T-shirt was torn due to injury. It is apparent that the injured PW2 after incident came to his home where the injured PW2 tied his injuries with towel and chunni. PW3 Deewan deposed that he handed over blood stained one white colour towel, one green colour chunni and one pant/trouser which the injured PW2 was wearing at the time of incident to police which were seized vide seizure memo Ex.PW3/A. PW12 the investigating officer also deposed that PW3 Deewan produced three clothes of the injured which were seized vide order seizure memo Ex.PW3/A. PW12 the investigating officer identified black colour pant as Ex.P1, white colour towel as Ex.P2 and green colour chunni as Ex.P3. It is proved from testimony of the injured PW2 that he was wearing T-shirt and pant Ex.P1 at the time of incident but it is also proved that said T-shirt was torn in incident. PW3 Deewan father of the injured PW2 handed over pant Ex.P1 to the investigating officer. There was no occasion for the investigating officer PW12 to seize T-shirt during investigation. There is no legal force in argument advanced by the counsel of the accused Ajay @ Badakka as mentioned hereinabove.
19. The defence counsels argued that the injuries as mentioned in MLC Ex.PW5/A are not sufficient to cause death of the injured PW2 in ordinary course of nature and do not fall within ambit of section 320 IPC which deals with grievous injuries. The injuries as mentioned in MLC Ex.PW5/A also do not reflect intention of the accused for inflicting such injuries which would have been sufficient to cause death of the injured PW2. The nature of injuries which is relevant to constitute FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 16/28 offence punishable under section 307 IPC was considered by the superior courts. Earlier it was observed that nature of the injury helps in determining the intention of the accused. In Kaluram V State of Assam, 1977 Crl.L.J. 98 it was found that the accused had dangerous weapon but he inflicted only minor injuries on the victim which clearly showed that he had no intention to murder and hence he was not convicted under section 307 IPC. However the nature of the injury is not always used to ascertain the intention, that is, a very serious injury need not be caused to prove attempt to murder, even if a simple injury is done with the intention, it will be enough to convict the person under section 307. In State of Maharashtra V Balram Bama Patil, (1983) 2 SCC 28) the Supreme Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted. It was observed as under:-
To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act 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 this section. An attempt 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 overt act in execution thereof.
The above position was followed in State of MP V Saleem, (2005) 5 SCC 554) it was observed as under:-
It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 17/28 section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
In State of MP V Kashiram & others, AIR 2009 SC 1642 it was observed as under:-
To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act 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 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 overt act in execution thereof.
10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
12. Whether there was intention to kill or knowledge that FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 18/28 death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.
In Jage Ram V State of Haryana, (2015) 11 SCC 366) the Supreme Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted.
For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc. In State of Madhya Pradesh V Kanha @ Omprakash, Criminal Appeal No 1589 of 2018 decided on 4 February, 2019 by the Supreme Court of India, the respondent was found guilty of the offence under section 307 IPC by the Trial Court. The respondent preferred an appeal before the High Court of Madhya Pradesh. The High Court converted the conviction of the respondent from that under section 307 to section 324 IPC. The State preferred appeal in the Supreme Court. The State submitted that eleven punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm were found on the body of the injured which were caused by a firearm and nature of injuries as well as the weapon of offence clearly proved an intention to commit murder and the hurt caused satisfies the ingredients of Section 307 IPC. The respondent submitted that there was no evidence to prove that the injuries caused were grievous in nature or life- threatening. It was FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 19/28 observed as under:-
The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act".
The proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case.
In State of Madhya Pradesh V Harjeet Singh & another, Criminal Appeal No. 1190 of 2009 decided on 19th February, 2019 the Criminal Appeal was filed by the Respondents against their conviction under Section 307 IPC. The High Court reduced the conviction of the respondents from Section 307 to Section 324 IPC. The prosecution proved beyond reasonable doubt that accused /respondent No. 1 inflicted four injuries on the complainant by using a knife. It was observed as under:-
The act of stabbing a person with a sharp knife, which is a dangerous weapon, near his vital organs, would ordinarily lead to the death of the victim. The weapon of offence was a 4inch long knife which is a dangerous weapon. The Accused /Respondent No. 1 had assaulted the Complainant with the said knife, and inflicted 14 multiple injuries on his chest, scapula, back, and buttocks. The multiple blows in- flicted by the Accused /Respondent No. 1 would prove the in-
FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 20/28 tention of causing bodily injury likely to cause the death of the victim. Stabbing a person with a knife, near his vital or- gans would in most circumstances lead to the death of the victim, thereby falling squarely within the meaning of Sec- tion 307.
The Madhya Pradesh High Court in Rambabu V State of Madhya Pradesh, CRA 6064 of 2017 decided on 1st April, 2019 observed that proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 307 IPC. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and severity of the blows inflicted can be considered to infer intent. The nature of injuries inflicted to the injured PW2 does not have any relevance to determine culpability of the accused including intention for offence punishable under section 307 IPC.
20. The accused in respective statements recorded under section 313 Cr.P.C stated that the father and the paternal uncle namely Kallu PW1 of alleged injured are habitual in lodging false FIRs against the peoples residing in the locality to extort money from them. PW3 Deewan father of the injured is complainant in FIRs no. 591/13, 738/15, 798/15, 804/15 registered at police station Gokalpuri. Deewan and family members of Deewan are the witnesses in said FIRs. The accused preferred to lead defence evidence and examined Ct. Sonu Tomar as DW1 who proved the copies of FIR no 591/13 as Ex.DW1/A, FIR no 738/15 as Ex.DW1/B, FIR no 798/15 as Ex.DW1/C, FIR no 804/15 as Ex.DW1/D. The accused in cross examination of the injured PW2 and PW3 Deewan also established that the injured PW2 was a drug addict. The injured PW2 in cross examination admitted that he is a witness in other cases and he used to consume smack. PW3 Deewan in cross examination also admitted that the injured PW2 was a drug addict/alcoholic. The accused also took defence that due to previous enmity the injured PW2 falsely implicated them.
21. Statement under Section 313 Cr.P.C. is not a substantive piece of evidence. It is not equivalent to confession of accused. Section 313 Cr.P.C. ensures principle of natural justice to the accused. It empowers the court to examine the accused with FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 21/28 the purpose to enable the accused to explain incriminating circumstances in the prosecution evidence. The Supreme Court in Samsul Haque V State of Assam, Criminal Appeal No.1905 of 2009 decided on 26th August, 2019 considered the rights of the accused enshrined under Section 313 Cr.P.C. The appellant was convicted of murder and the conviction was upheld by the Gauhati High Court. The Supreme Court noted that only two questions were put to the accused in statement under Section 313 Cr.P.C. It further held that the incriminating material is to be put to the accused so that the accused gets a fair chance to defend him. This is in recognition of the principles of audi alteram partem. In view of the abridged recording of the Section 313 statement, the accused was acquitted. The Supreme Court in Samsul Haque had also relied on the observations made in Asraf Ali V State of Assam, Criminal Appeal No.1905 Of 2009 decided on 17th July,2008 which are as under:-
The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused be questioned about the matter and be given an op- portunity of explaining it. Where no specific question has been put by the trial court on inculpatory material in the prosecution evidence, it would vitiate the trial.
The Supreme Court in Reena Hazarika V State of Assam, Criminal Appeal No. 1330/2018 decided on 31st October, 2018 observed that a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. It was also held that Section 313 Cr.P.C. can- not be seen simply as a part of audi alteram partem rather it confers a valuable right upon an accused to establish his innocence. It also made it explicitly clear that if there has been no consideration of the defence taken by the accused under section 313 Cr.P.C. the conviction can stand vitiated.
In Manu Sao V State of Bihar, (2010) 12 SCC 310, the Supreme Court elaborated evidentiary value of statement of accused under Section 313 FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 22/28 Cr.P.C. as under:-
The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case.
The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 23/28 made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
22. The defence could not prove previous enmity of the accused with the injured PW2. There is nothing in cross examination of the injured PW2 that he falsely implicated the accused due to previous enmity. There is presumption that a previous drug would falsely implicate others in criminal cases. If the injured PW2 is in habit of lodging FIRs against persons residing in same locality it does not give license to the accused to inflict knives blows to the injured PW2. The defence as taken by the accused in statement under section 313 Cr.P.C does not inspire any confidence and appears to be after though, sham and contrary to the evidence.
23. The important issue which needs judicial consideration is that whether on basis of evidence and other material on record the offence under section 307 IPC or un- der section 325 IPC is made out. Section 307 gives weightage to the intention and the knowledge of the accused and the preparation that he makes before committing the crime. The offence of attempt to murder is a very serious offence because it is not very different from the offence of murder itself. The only difference between the two offences is the death of the victim which is not present under section 307 IPC. The act attempted should be of such a nature that if not prevented or inter- cepted, it would lead to the death of the victim. Section 307 IPC gives more impor- tance to mens rea or the intention than the actus reus or the actual act itself. The intention or mens rea to kill is needed to be proved. The attempt should arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. The intention to kill cannot be gauged simply by the seriousness of the injury caused. The intention and the knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under section 307 IPC.
24. The counsel for accused Ajay @ Badakka argued that the injured PW2 did not identify weapon of offence and as per FSL Report Ex. PX no blood stains were FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 24/28 found on knife Ex.P4 stated to be weapon of offence. The counsel for Hari Kishan @ Kalu argued that the injured PW2 did not identify weapon of offence i.e. knife Ex.P4.
25. Blood stains were not detected on knife Ex.P4 as per FSL Report Ex. PX. However, the Supreme Court in Balwan Singh V State of Chhattisgarh and an- other, Criminal Appeal No. 727 of 2015 decided on 06 th August, 2019 observed that it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insufficiency of bloodstains, or hematological changes etc. In such situations, the Court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the Court about the investigation. The Supreme Court re- ferred R. Shaji V State of Kerala, (2013) 14 SCC 266 wherein it was observed that a failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. If no blood stain is detected on knife Ex.P4, it is not fatal to the case of prosecution.
26. The injured PW2 deposed that the accused Govind @ Genda Lal inflicted knife blows to him and the injured PW2 received injuries on neck, stomach and left arms. The eye witness PW1 Kallu also deposed that the accused Gainda Lal inflicted knife blows on neck and stomach of the injured PW2. The injured PW2 did not identify knife Ex.P4 as weapon of offence and used in commission of offence but deposed that knife Ex.P4 was like a vegetables cutter knife. The investigating officer PW12 recovered knife Ex. P4 during investigation at instance of the accused Govind @ Genda Lal which was seized vide seizure memo Ex. PW4/J and sketch Ex. PW4/H was also prepared. The perusal of sketch Ex. PW4/H reflects that knife Ex.P4 was small in size and was like vegetables cutter knife. The knife Ex.P4 cannot be said to be a dangerous weapon.
The complainant PW1 was conscious and oriented with normal blood pressure and pulse rate when he was brought to hospital and medically examined by PW5 Dr. Feroz Khan and was further referred to Surgery Department and ENT FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 25/28 Department. The injured PW2 was found not fit for statement due to pain. The in- jured PW2 as per MLC Ex.PW5/A received three injuries which are incised wound at right mandibular region above right side measuring 3 x 2 cm; in- cised wound in epijuglar region measuring 4 x 3 cms and incised wound at left upper limb left humerous region medial aspect 1 x 1 cm and opined to be griev- ous as per medical opinion Ex.PW6/B given by Dr. Shamshad Ahmed. The injured PW2 also deposed that he remained under medical treatment for five days and was discharged from hospital after 16/17 days. The prosecution could not prove that the injured PW2 received medical treatment for five days and was discharged from hospital after 16/17 days. There is no medical evidence that injuries as mentioned in MLC Ex.PW5/A would be sufficient to cause death in ordinary course. No in- jury was noticed in stomach as deposed by the injured PW2 and the eye witness PW1 Kallu. The injuries as MLC Ex.PW5/A were not deep injuries. There is no evidence that the accused was having requisite intention or knowledge to cause culpable homicide. Mere fact that injuries were also inflicted in mandibular region i. e. lower jaw which may be vital part of the body, does not necessary mean that the accused were having necessary knowledge and intention to kill the injured PW2. The act complained of was not of such a nature which would have caused the death of the injured PW2 if it was not prevented. The prosecution could not prove requisite intention or mens rea on the part of the accused to commit offence punishable under section 307 IPC.
27. In the adversarial system every person accused of an offence is always pre- sumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maha- rashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurispruden-
FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 26/28 tial enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devo- tion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bi- har, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suf- fering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 27/28 available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
28. The prosecution has failed to prove offence under section 307 IPC beyond rea- sonable doubt. The prosecution could prove its case for the offence punishable un- der section 325 IPC against the accused by establishing that the accused on allega- tions that on 09.06.2017 at about 9.00 pm in furtherance of their common intention caused grievous injuries to the injured PW2 by using a knife Ex.P4. Accordingly the accused are convicted for offence under section 452/325/506/34 IPC.
ANNOUNCED IN THE COURT ON 24th JUNE, 2020 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE, NORTH- EAST KARKARDOOMA COURTS, DELHI FIR 224/17 SC No 254/17 STATE V AJAY @ BADAKKA AND ORS 28/28