Delhi District Court
Statements Of Accused Persons vs State Of Nct on 23 December, 2021
IN THE COURT OF MS DEEPALI SHARMA :
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010027982014
SC No. 1192/2016
FIR No. 839/2014
U/S 307/34 IPC
P.S. New Ashok Nagar
State
versus
1) Waseem Akram,
S/o Jamshed Ali,
R/o 15/246, Trilokpuri,
Delhi91.
2) Waseem Khan,
S/o Mateen Khan,
R/o 15/245, Trilokpuri,
Delhi91.
Date of Institution : 11.11.2014
Date of reserving Judgment : 17.12.2021
Date of pronouncement : 23.12.2021
Appearances
For the State : Shri. Santosh Kumar,
Additional Public Prosecutor.
For both the accused persons : Shri S.K.Singh, Advocate.
SC No. 1192/2016 Page 1 of 32 ASJ04/KKD/Delhi
JUDGMENT
1. Briefly stated facts of the present case are that on 27.07.2014 information was received telephonically at PS New Ashok Nagar that someone had injured a girl with a blade regarding which DD No. 26A was recorded at 08.50 hours. The IO alongwith Const. Dinesh reached the place of incident at Kondli Bridge and they were informed that the injured had already been taken to LBS Hospital. Thereafter the IO reached the LBS Hospital alongwith Const. Dinesh. Since the victim was not in a position to give her statement properly, her statement was not recorded at that time. The IO collected the MLC of the victim and went to the spot, where he made inquiries and thereafter again went to LBS Hospital and recorded the statement of victim Jyoti wherein she stated that on 27.07.2014, at about 08.30 pm, while she was returning to her house from her beauty parlor and reached at Kondli Pul, accused Waseem Akram, s/o Jamshed Ali, whose was known to her from earlier as he used to trouble her, was coming from front side alongwith his friend Waseem Khan and caused injury on her left hand with a sharp edged weapon without saying anything and when she tried to run away from there, accused Waseem Khan caught hold of her and accused Waseem Akram again attacked on her face and head with a sharp edged weapon many times endangering her life and thereafter both the accused persons ran away from the spot.
SC No. 1192/2016 Page 2 of 32 ASJ04/KKD/Delhi Accused Waseem Akram was pressurizing her for friendship to which she had declined many times and he had threatened her to face the consequences. In that regard she made a complaint to the police that accused Waseem Akram and his companion Waseem Khan had made a life threatening attack upon her with the intention to kill her. The said statement of the victim is Ex. PW1/A.
2. On the basis of the above said statement of victim Jyoti Ex. PW1/A, FIR bearing No. 839/2014 was registered under section 307/34 IPC on 28.07.2014 at Police Station New Ashok Nagar.
3. Necessary investigation was conducted. Crime Team was called at the spot and photographs were taken. IO prepared the site plan Ex. PW16/B. Accused Waseem Akram was arrested upon the identification of PW Laxman (father of the complainant). Accused Waseem Akram was arrested vide Arrest Memo Ex. PW2/A and his Personal Search was conducted vide memo Ex. PW2/B. His disclosure statement was recorded vide Ex. PW4/A. Subsequently, he was medically examined at LBS Hospital. On 29.07.2014 accused Waseem Akram led the police to Kondli Bridge towards Mayur Vihar and further to the bushes at a distance of about 50 meters and got recovered one blood stained paper cutter from the bushes. The IO seized the same vide seizure memo Ex.
SC No. 1192/2016 Page 3 of 32 ASJ04/KKD/Delhi PW7/A. The IO also seized the earlier complaints and FIR from the house of the complainant Jyoti vide Ex. PW2/C. PW Laxman also handed over blood stained clothes of the complainant Jyoti i.e. blue colour Tshirt, one black colour jeans and one blue innerwear, one blood stained steel tiffin box containing bus tickets and one blood stained carry bag, which were seized by the IO vide seizure memo Ex. PW7/B.
4. Subsequently, on 09.08.2014 accused Waseem Khan was apprehended upon identification by Laxman, father of complainant, and was arrested vide arrest memo Ex. PW2/D and his personal search was conducted vide memo Ex. PW2/E. His disclosure statement was recorded vide Ex. PW7/D. He was got medically examined. The IO obtained the opinion on the MLC of the victim. On 02.10.2014 the complainant alongwith her mother were taken to LBS Hospital and the blood sample of the complainant was seized by the IO vide seizure memo Ex. PW16/D. The IO had also taken the photographs of the complainant/injured Jyoti indicating her injuries vide Ex. PW16/E (Colly). The IO sent the exhibits to FSL Rohini for their evaluation and analysis.
5. After recording the statements of witnesses and upon completion of investigation, the charge sheet was filed by the IO under section 307/326A/34 IPC.
SC No. 1192/2016 Page 4 of 32 ASJ04/KKD/Delhi
6. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 307/326A/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 03.11.2014 committed the case to the Court of Session for 11.11.2014.
Charge
7. On 18.12.2014, after hearing the learned Additional Public Prosecutor for the State and Ld. counsel for both the accused persons, charge was framed against both the accused persons for commission of offences punishable under Section 307/34 IPC. The charge so framed was read over and explained to both the accused persons to which they did not plead guilty and claimed trial.
Testimonies of Prosecution Witnesses
8. In all, sixteen witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder :
SC No. 1192/2016 Page 5 of 32 ASJ04/KKD/Delhi
S.No Name of PW Nature of Testimony
of PW
PW1 Jyoti Complainant/victim herself.
PW2 Laxman Father of complainant/victim.
PW3 Dr. Sushil Proved the MLC of injured Jyoti.
Kumar
PW4 Const. Kapil Deposed about arrest of the accused Waseem
Akram from 15 Block, Trilok Puri, at the
instance of Laxman, father of injured, by
IO/SI Ranvir Mavi and also recording his
disclosure statement.
PW5 Const. Dinesh Deposed about investigation conducted by
Kumar the IO/SI Ranvir Mavi. IO recorded
statement of injured Jyoti in the hospital,
prepared rukka and he took the rukka to PS
and got the FIR registered. He further
deposed about arrest of the accused Waseem
Akram from 15 Block, Trilok Puri, at the
instance of Laxman, father of injured, and
recording of his disclosure statement by the
IO.
PW6 HC Amarjeet He deposed about recording of FIR, his
Singh (Duty endorsement on the rukka and issuance of Officer) certificate under section 65B of Indian Evidence Act.
PW7 Const. Raj Pal Deposed about joining investigation with the IO/SI Ranveer Mavi, recovery of paper cutter (weapon of offence) at the instance of SC No. 1192/2016 Page 6 of 32 ASJ04/KKD/Delhi accused Waseem Akram and also preparation of its sketch. He further deposed about seizure of blood stained clothes of injured, carry bag and steel tiffinbox of the injured, which were produced by her father Laxman.
Further, about arrest of the accused Waseem Khan at the instance of Laxman, father of injured, and recording of disclosure statement of the accused Waseem Khan by the IO.
PW8 HC Yatvir He deposed about recording of FIR No. Singh (Duty 168/14 dated 24.02.2014, under section Officer) 354/354D IPC at PS Kalyanpuri on the complaint of Jyoti D/o Laxman.
PW9 Dr. Ruchi Proved the Biological and DNA report as Sharma (Jr. well as Serological Report.
Forensic/Chem
ical Examiner)
PW10 Const. Umesh Proved the DD No. 34B dated 16.03.2013
Kumar regarding receiving of complaint of Ms.
(Reader of Jyoti, regarding which Entry No. J10 dated
SHO PS 16.03.2013 was recorded.
Gazipur)
PW11 Dr. Abhishek Proved opinion qua nature of injury given by
Dr. Rohan on 02.09.2014 on MLC No.
13203 dated 27.07.2014.
PW12 ASI Narayan Deposed about receiving of a complaint of
Dev Jyoti at PS Gazipur vide DD No. 34B dated
16.03.2013. On 17.03.2013 complainant
alongwith her parents as well as accused
Waseem Akram was called at police station,
SC No. 1192/2016 Page 7 of 32 ASJ04/KKD/Delhi
where matter was compromised between the
parties. He further deposed about recording
of statement of complainant Jyoti and
accused in respect of compromise and
thereafter preparation of a report by him.
PW13 PSI Sandeep Proved the photographer of scene of crime.
Kumar
(photographer)
PW14 ASI Ashok Proved the DD No. 26A dated 27.07.2014.
Kumar
PW15 ASI Shivraj Deposed that after reaching at spot, he had
taken the injured girl Jyoti to LBS Hospital
in PCR van.
PW16 SI Ranveer Deposed about the investigation conducted
Mavi by him in the instant case.
(Investigation
Officer)
Documentary Evidence
9. The prosecution also relied on following documents tendered into evidence i.e. statement of Jyoti (Ex. PW1/A), complaint dated 16.03.2013 of Jyoti (Ex. PW1/B), arrest memo of accused Waseem Akram (Ex. PW2/A), personal search memo of accused Waseem Akram (Ex. PW2/B), seizure memo of complaints earlier made by victim Jyoti against accused Waseem Akram to the police (Ex. PW2/C), arrest memo of accused Waseem Khan (Ex. PW2/D), personal search memo of accused Waseem Khan (Ex. PW2/E), MLC No. 13203 of Jyoti (Ex. PW3/A), disclosure SC No. 1192/2016 Page 8 of 32 ASJ04/KKD/Delhi statement of accused Waseem Akram (Ex. PW4/A), copy of FIR (Ex. PW6/A), endorsement of Duty Officer on rukka (Ex. PW6/B), certificate under section 65B of Indian Evidence Act (Ex. PW6/C), seizure memo of paper cutter (Ex. PW7/A), seizure memo of blood stained clothes of Jyoti, blood stained carry bag and steel tiffin box (Ex. PW7/B), sketch of paper cutter (Ex. PW7/C), disclosure statement of Waseem Khan (Ex. PW7/D), copy of FIR No. 168/2014 dated 24.02.2014 of PS Kalyanpuri (Ex. PW8/A), Biological and DNA reports (Ex. PW9/A), Serological report (Ex. PW9/B), entry No. J10 dated 16.03.2013 in respect of DD No. 34B in DD register (Ex. PW10/A), complaint dated 16.03.2013 made by Jyoti at PS Gazipur (Ex. PW12/A), written statement in respect of compromise given by Jyoti at PS Gazipur (Ex. PW12/B), written statement given by accused Waseem Akram at PS Gazipur (Ex. PW12/C), report prepared by ASI Narayan Dev of PS Gazipur (Ex. PW12/D), five photographs of scene of crime (Ex. PW13/A1 to PW13/A5), negatives of photographs (Ex. PW13/B1 to Ex. PW13/B5), DD No. 26A dated 27.07.2014 (Ex. PW14/A), endorsement made by IO on the rukka (Ex. PW16/A), site plan (Ex. PW16/B), application seeking PC remand of accused Waseem Akram (Ex. PW16/C), seizure memo of sealed exhibits of blood sample (Ex. PW16/D) and five photographs of Jyoti regarding her injuries [Ex. PW16/E (colly)].
SC No. 1192/2016 Page 9 of 32 ASJ04/KKD/Delhi Statements of accused persons
10. After conclusion of prosecution evidence, on 16.07.2018, statements of both the accused under Section 313 Cr.P.C was recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them.
11. Both the accused persons further stated that they has been falsely implicated in this case. Both the accused persons also led evidence in their defence and got examined two witnesses i.e. DW1 Imran Khan, brother of accused Waseem Akram and DW2 Smt. Afroz, neighbour of accused Waseem Khan.
12. It is contended by ld. Counsel for the accused persons that the accused persons have been falsely implicated in this case. It is stated that the MLC of the complainant/victim reveals that injuries sustained by her were grievous in nature, however, they are not stated to be dangerous to life. It is stated that the MLC of the victim also reveals that she was conscious at the time of her examination and as per the testimony of victim herself she was discharged on the next day after the alleged incident took place. It is urged that the name of the applicants/accused persons is not mentioned in the MLC even though the accused persons were well known to the victim. It is stated that the offence of attempt to SC No. 1192/2016 Page 10 of 32 ASJ04/KKD/Delhi murder under section 307 IPC is not made out as the accused persons did not cause injuries on any vital part of the body of the victim and the alleged weapon used was not a dangerous weapon and hence the accused persons are liable to be acquitted of the offence under section 307 IPC. It is also stated that no blood stains were found on the clothes of the accused persons and if the injuries of the kind allegedly inflicted upon the victim were caused by the accused persons, blood stains should have been found on the clothes of the accused persons. In those circumstances, blood stained clothes of the accused persons were an important piece of evidence and the same were not seized by the IO. It is stated that the photographs of the victim placed on record are manufactured and no negatives of the said photographs have been placed on record and therefore, no reliance can be placed upon them. It is stated that the accused Waseem Akram was arrested from his own house at about 03.20 am on 28.07.2014 and if the offence had been committed by him, he would not have remained there and would have run away. It is urged that the alleged weapon of offence i.e. a paper cutter was purportedly got recovered at the instance of accused Waseem Akram, however, no public witness was joined at the time of recovery nor any photographs taken at the time of alleged recovery, nor any site plan of recovery has been prepared.
13. It is also contended that the accused persons have been falsely SC No. 1192/2016 Page 11 of 32 ASJ04/KKD/Delhi implicated in the present matter as the victim and the accused Waseem Akram used to like each other and the family of victim used to object to it. It is stated that in February 2014 father of the victim had given beatings to accused Waseem Akram in the morning at around 10.00 am and subsequently in order to cover up the incident of beatings, the victim had lodged a FIR bearing no. 168/2014 at PS Kalyanpuri to save his father. It is stated that accused Waseem Akram stood acquitted in the said case. It is accordingly urged that the evidence on record does not reveal any common intention of the accused persons to kill the victim and as such the accused persons are liable to be acquitted for the offences they are charged with.
14. On the other hand, it is urged by the Ld. Addl.P.P. for the State that accused Waseem Akram alongwith accused Waseem Khan had been harassing the victim continuously over a period of time, regarding which the victim had filed complaints also, one before the SHO PS Gazipur and another at PS Kalyanpuri bearing FIR No. 168/2014. It is stated that the said facts indicate that the victim was being harassed by the accused persons. It is stated that the accused Waseem Akram behaved like a jilted lover and as such in furtherance of his common intension with coaccused Waseem Khan, he inflicted injuries of grievous nature upon the victim with the help of a dangerous weapon with intention to kill the victim, which is also evident from the fact that multiple injuries were caused to SC No. 1192/2016 Page 12 of 32 ASJ04/KKD/Delhi the victim on her face, arms and scalp. It is urged that the scalp is a vital part of the body and since multiple injuries were caused to the victim, by the accused persons with the help of a paper cutter, it reveals that the accused persons intended to kill her after overpowering her. It is stated that the victim has supported entire case of prosecution since the filing of the initial complaint and till recording of her testimony before the court and nothing has come on record to shake the testimony of the victim. It is urged that the accused persons in furtherance of their common intention had done everything in their capacity to cause injuries to the victim, which could have killed her with the dangerous weapon and hence the accused persons are liable to be held guilty of the offence they are charged with.
15. I have heard ld. Counsels for the parties and perused the record.
16. The accused persons in the present case have been charged for at tempt to murder under section 307 Cr.P.C. read with Section 34 IPC. Sec tion 307 IPC relating to attempt to murder provides as under :
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may ex tend 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 li able either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
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17. In this regard the victim PW1 Jyoti deposed that on 27.07.2014, she used to work in a beauty parlor and was returning home at about 08.30 pm by bus. When she got down from the bus and reached near Kondli bridge, accused Waseem Akram and Waseem Khan came there. Without saying anything accused Waseem Akram hit her on her left hand with some sharp object. When she tried to save herself and ran away from there, accused Waseem Khan pulled her and caught her by her hands and exhorted ac cused Waseem Akram to kill her. Thereafter, accused Waseem Akram caused several injuries to her with a sharp edged object upon her face, head and ears. Thereafter, both the accused persons fled away from the spot. The victim was bleeding profusely and was taken to LBS Hospital by PCR van. The victim also deposed that the accused persons had threat ened her several times to disfigure her face and that "Tujhe Apne Chahre Par Bahut Ghamand Hai, Tera Chahra Bigad Denge".
18. The victim also stated that the clothes that she was wearing on the day of incident were also blood stained and she was carrying one bag and tiffin. The victim identified the jeans pant Ex. P1, Top Ex. P2, inner wear Ex. P3, lunch box Ex. P4, carry bag Ex. P5 and the bus ticket Ex. P6. The clothes were identified by her as being the same clothes that she was wearing at the time of incident and the carry bag, lunch box and bus SC No. 1192/2016 Page 14 of 32 ASJ04/KKD/Delhi ticket as those that she was carrying at the time of incident.
19. It is accordingly evident from the testimony of victim that on the day of incident when the victim was returning to her home, she was in jured by the accused persons with a sharp object on her face, head and arms, after she got down from the bus, owing to which she bled profusely.
20. The father of victim namely Laxman was examined as PW2 and he deposed that on 27.07.2014 he was present at his home. He received a telephonic call from LBS Hospital. The caller informed him that someone had attacked Jyoti with blades and that she was under treatment at LBS Hospital. He reached LBS Hospital where he found his daughter to be under treatment. He deposed that his daughter told him in low voice that accused Waseem Akram and Waseem Khan had attacked her and caused injuries to her. The doctors at LBS Hospital told him that surgery was needed for victim Jyoti. Accordingly, PW2, the father of victim, also cor roborated the testimony of victim regarding the fact that she had received injuries by sharp object and the said injuries were inflicted upon her by ac cused Waseem Akram and Waseem Khan.
21. The victim was taken to LBS Hospital by the police and was exam ined by PW3 Dr. Sushil Kumar vide MLC No. 13203 of 2014 at 08.50 pm SC No. 1192/2016 Page 15 of 32 ASJ04/KKD/Delhi on 27.07.2014 itself vide Ex. PW3/A. PW3 deposed that following in juries were observed on the body of victim Jyoti at the time of her exami nation:
i) Incised wound present over right and left cheek extended upto left tragus with fresh active bleeding with right ear avulsion;
ii) Incised would present over scalp approximately 6 cm x 1 cm with active bleeding;
iii) Incised wound present over left trapizus muscle approximately 2 cm x 0.5 cm;
iv) Incised wound present over dorsum of left forearm approximately 6 cm x 1 cm with active bleeding; and
v) Incised would present over dorsum of left hand with tendon exposed with active bleeding approximately 4 cm x 1 cm involving 1st, 2nd and 3rd finger.
22. It is also relevant to note that it is mentioned in the MLC that the said injuries were received from the sharp object. The aforesaid injuries were opined as grievous in nature by Dr. Rohan, whose handwriting and signature were identified by PW11 Dr. Abhishek.
23. It is also to be noted that sharp object that has been described by the SC No. 1192/2016 Page 16 of 32 ASJ04/KKD/Delhi victim to be sharp edged weapon with which she was injured was recov ered at the instance of accused Waseem Akram from bushes near Kondli Bridge towards Mayur Vihar and same was blood stained paper cutter Ex. P7, which was seized by the IO vide seizure memo, Ex PW7/A. The IO prepared sketch of paper cutter Ex. PW 7/C. The said paper cutter was also sent for its evaluation and analysis to FSL Rohini. The other exhibits of the victim, seized by the IO i.e. her clothes, carry bag and tickets, were also sent to FSL Rohini for their evaluation and analysis.
24. FSL result was proved by Dr. Ruchi Sharma (PW9) vide Ex PW9/A. In the Biological examination, blood was detected on exhibits '1'(paper cutter having plastic handle and metallic blade), '2'(blood sam ple of the injured), '3a'(jeans pant), '3b'(torn TShirt), '3c'(baniyan), '3d'(tiffin box) & '3e'(carry bag along with 4 tickets).
25. As per the the DNA Examination, Exhibits '1', '2', '3a', '3b', '3c', '3d' & '3e' were subjected to DNA isolation. DNA was isolated from source of exhibit '2'(blood sample of the injured), '3a'(jeans pant), '3b'(torn TShirt), '3c'(baniyan), However, DNA could not be isolated from source of exhibits '1'(paper cutter having plastic handle and metallic blade), '3d'(tiffin box) & '3e'(carry bag along with 4 tickets).
SC No. 1192/2016 Page 17 of 32 ASJ04/KKD/Delhi The Result of the FSL Analysis is as follows:
26. "The alleles from the source of exhibits '2' (blood sample of in jured) are accounted in alleles from source of exhibit "3a" (jeans pant of injured), '3b' (Tshirt of injured) & '3c' (baniyan of injured)."
27. Accordingly, it is manifest from the FSL result Ex. PW9/A that blood of human origin was found on the paper cutter, jeans pant (Ex. 3a), TShirt (Ex. 3b), baniyan (3c), '3d'(tiffin box) & '3e'(carry bag along with 4 tickets). It is also evident that the alleles from source of blood sample of injured were accounted in alleles from source of jeans pant of injured, Tshirt of injured and baniyan of injured and hence, the blood on the said articles of clothes was of the victim. Though blood of human original was detected on the paper cutter (Ex. 1), which was recovered at the instance of accused Waseem Akram, but DNA could not be isolated. However, the same does not distract from the fact that the blood was present on the paper cutter, thereby corroborating the version of the victim that she was injured with a sharp edged weapon.
28. Accordingly, the testimony of the victim that she had received in juries on her head, face and ears with the sharp object stands corroborated by her MLC Ex. PW3/A and the recovery of the paper cutter with blood stains on it. It is to be noted that as per the FSL result Ex. PW9/A, the SC No. 1192/2016 Page 18 of 32 ASJ04/KKD/Delhi blood stains which were found on the clothes of victim were from the source of blood of the victim and thereby indicating that the clothes of the victim got blood stained at the time of incident. It is also relevant to note that the photographs of the victim were taken after the incident and the same have been exhibited as Ex. PW16/E, which indicate that injuries were received by the victim at the time of incident. The injuries have been opined to be of grievous nature in the MLC of the victim.
29. Hence, it is proved on record that victim Jyoti received grievous in juries at the time of incident with the sharp edged weapon, which has been proved on record to be a paper cutter. The said injuries have been re ceived on the cheeks, scalp, left trapizus muscle, left forearm and left hand.
30. In order to determine if the accused persons are guilty of the offence under section 307/34 IPC, it would be worthwhile to consider the decision of Hon'ble Supreme Court of India in the matter of State of Madhya Pradesh v. Kedar Yadav, 2009 (17) SCC 280, wherein the Hon'ble Supreme Court of Indian enunciated the law in relation to Section 307 IPC and observed that for conviction under section 307 IPC it is sufficient if there is an intention or knowledge coupled with some overt act in execu tion of such intention / knowledge. It is not necessary that bodily injury SC No. 1192/2016 Page 19 of 32 ASJ04/KKD/Delhi capable of causing death should have been inflicted. If the act, irrespec tive of its result is done with the intention or knowledge and under the cir cumstances mentioned in the sections, the same may result conviction un der section 307 IPC and the accused cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
31. Accordingly in order to prove the offence under section 307 IPC it is essential to prove that there was intention or knowledge coupled with some overt act in execution of such intention / knowledge.
32. Similarly, in Vikash Bhardwaj @ Sonu and Anr. V. State of NCT of Delhi, 2014 (2) JCC 996 : 2014 (15) R.C.R. (Criminal) 63, the Hon'ble Delhi High Court culled out the ingredients of section 307 IPC and observed as follows:
"21. The essential ingredients required for a conviction under section 307 of the 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;
(iii) That such act was done with the intention of causing death; or that it was SC No. 1192/2016 Page 20 of 32 ASJ04/KKD/Delhi done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act know to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
22. All the ingredients of the offence must be present before a conviction can be ordered. The injuries sustained, the manner of the assault and the weapons used are all relevant factors. The intention or knowledge which is foremost ingredient of section 307 of the IPC must precede the act attributed to the accused. This intention/knowledge has to be gathered from the circumstances and not necessarily from the ensuing result."
(emphasis supplied)
33. In the matter of Satish Kumar v. State (NCT of Delhi), 2013 (5) AD (Delhi) 674 : 2013 (3) JCC 1749, the Hon'ble Delhi High Court observed as under:
"8. The issue now arises is whether an offence under Section 307 IPC is made out or not. The SC No. 1192/2016 Page 21 of 32 ASJ04/KKD/Delhi essential ingredient of Section 307 IPC is the mensrea. Mensrea can be inferred from the kind of weapon used, the place of injury, motive etc. To bring home a charge under Section 307 IPC the onus lies on the prosecution to prove that the accused caused an act with the intention or knowledge and under such circumstances that if by that act death was caused he would be guilty of murder. In the present case on a quarrel ensuing, the Appellant caused a knife blow on the injured by a kitchen knife. The injury was caused on the back side and only one blow was given. In view of the weapon of offence and injury not being on the vital part it cannot be said that the Appellant had intention to cause murder of the injured. Further the Appellant certainly had intention to cause injury which was opined to be simple sharp in nature. Thus the Appellant is convicted for offence punishable under Section 324 IPC instead of Section 307 IPC and the conviction under Section 307 IPC is set aside".
34. Viewed in this light, the testimony of the witnesses has to now be examined to consider whether the conviction can be sustained under section 307 IPC on the basis of the evidence led in the present matter. As discussed herein above, before the conviction can be sustained under section 307 IPC, all the ingredients of section 307 IPC ought to be SC No. 1192/2016 Page 22 of 32 ASJ04/KKD/Delhi fulfilled. The injuries sustained, the manner of assault and the weapon used are all relevant factors. The foremost ingredients of section 307 IPC are the intention or knowledge which must precede the act attributed to the accused. The intention / knowledge has to be gathered from the surroundings circumstances and not necessarily from the results that follow, which may result in simple or grievous injury. In order to prove an offence under section 307 IPC essential mensrea to constitute the said offence has to be proved. Mensrea can be inferred from the kind of weapon used, nature of injury, place of injury, motive etc. The onus lies on the prosecution that the accused has caused an act with intention/knowledge and under such circumstances that if by that act death was caused, he would be guilty of murder.
35. In order to ascertain intention/knowledge of the accused persons it would be relevant to consider the deposition of victim PW1 Jyoti. The victim PW1 has deposed that she knew both the accused persons even prior to the incident as accused Waseem Akram used to chase her and tease her whenever she used to go to her work. He wanted to have friend ship with her, which she refused. She stated that accused Waseem Khan used to force her to have friendship with accused Waseem Akram. She also deposed that in the month of March 2013 she made a complaint at PS Gazipur against accused Waseem Akram as he had been harassing her a SC No. 1192/2016 Page 23 of 32 ASJ04/KKD/Delhi lot. She stated that she had discussed the matter with her parents also. Ac cused Waseem Akram had come to PS Gazipur alongwith his parents and apologized by saying that he would not harass her in future. The com plaint addressed to SHO Gazipur dated 16.03.2013 Ex. PW1/B was made by the victim in this regard. The assurance in writing dated 7.03.2013 given by accused Waseem Akram at PS Gazipur is MarkX1. No question was put to the victim controverting the said complaint or the assurance dated 07.03.2013. The victim also deposed that even thereafter accused persons did not mend their behavior and continued to tease her and harass her. In February 2014 she had lodged a complaint against both the ac cused persons at PS Kalyanpuri as they continued to harass her, threaten her and misbehave with her. In this regard FIR No. 168/2014 dated 24.02.2014, PS Kalyanpuri was lodged by the victim. The victim also de posed that both the accused persons had threatened her many times that they would disfigure her face by saying that she is very proud of her face so they would spoil it (Tujhe Apne Chahre Par Bahut Ghamand Hai, Tera Chahra Bigad Denge). The victim stated that the accused persons had ru ined her career and she wanted that the accused persons be punished se verely.
36. On the date of incident i.e. on 27.07.2014 the accused persons had caused wounds on the face, head and ears and hand of the victim when she SC No. 1192/2016 Page 24 of 32 ASJ04/KKD/Delhi got down from the bus and reached near Kondli Pull.
37. Accordingly, as per record the reason for accused persons for injur ing the victim on her face, head, ears and hand on the date of incident was the refusal of the victim not to accede to the request for friendship of ac cused Waseem Akram. Though on the date of incident accused Waseem Akram and Waseem Khan had started causing injuries to the victim with out saying anything, however, their intention is revealed in the preceding conduct and utterances made to the victim that they would spoil her face as she was very proud of it. Accused Waseem Khan also used to force the victim to have friendship with accused Waseem Akram and had joined him in causing injuries to the victim with the sharp object by catching hold of her and exhorting accused Waseem Akram to kill her. The victim was attacked when she got down from the bus and was going to her house. Accused Waseem Akram initially caused injury on her hand without say ing anything revealing that the attack on the victim was premeditated. The MLC Ex. PW3/A also reveals that injuries were caused to the victim on her cheeks, scalp, left trapizus muscle, left forearm and left hand and were opined to be grievous in nature. The said injuries were caused with sharp edged object which has been produced on record to be a paper cut ter. It is relevant to note that the victim in her crossexamination had stated that she was discharged from the hospital after one day of the inci dent.
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38. It is noteworthy that the victim was physically in complete control of the accused persons as accused Waseem Khan had caught hold of vic tim, while injuries were caused by accused Waseem Akram. Despite the same, injuries were not inflicted on any vital part of the body of victim. A paper cutter was used to cause injuries. It is also pertinent to note that ac cused persons on earlier occasions threatened the victim by saying that they will spoil her face as she was very proud of it. The said intention of the accused persons to spoil / disfigure face of victim is revealed in the fact that the accused persons in a premeditated manner caught hold of the victim and inflicted injuries on her face, arm and scalp with a paper cutter multiple times, at a public place. If the intention of the accused persons was to kill the victim in a premeditated manner, it is unlikely that they would have used a paper cutter to kill the victim and injuries would have been caused not only on the face, scalp and arm of the victim but on her vital part. Hence, the contention of the Ld. Addl.P.P. for the State that since the injuries have been caused on the scalp, face and arms multiple times, it reveals intention of the accused to kill the victim cannot be coun tenanced. However, the intention to disfigure the face of the victim is writ large, which could have been executed with the aid of weapon of of fence i.e. a paper cutter, which served the said purpose. The fact that mul tiple injuries were given does not lead to the conclusion that the intention SC No. 1192/2016 Page 26 of 32 ASJ04/KKD/Delhi was to kill the witness as the said injuries were manifestly given to disfig ure the face and head of the victim.
39. Hence, the aforesaid circumstances do not reveal any intention to kill the victim and in fact reveal that intention was to disfigure face and head of the victim. The said facts accordingly manifest that accused per sons wanted to teach a lesson to the victim for her refusal for friendship with accused Waseem Akram and therefore in furtherance of their com mon intention they disfigured her head and face by given her repeated in juries on her cheeks, scalp, left trapizus muscle, left forearm and left hand with sharp object i.e. a paper cutter. It is to be noted that if intention was to kill the victim and not to cause grievous hurt, in facts of the present case, in a premeditated manner, then the accused persons would not have used merely a paper cutter and could have caused a fatal injury to her by use of a weapon which would be appropriate to attain that object. Hence, it cannot be inferred from the facts and circumstances of the case that the injuries were inflicted upon the victim with the sole intention and purpose to cause her death. On the other hand, the act of the accused persons would amount to voluntarily causing grievous hurt as defined under sec tion 322 IPC in as much as the accused persons in furtherance of their common intention intended to cause grievous hurt upon the victim by causing permanent disfiguration of her face and head as envisaged under SC No. 1192/2016 Page 27 of 32 ASJ04/KKD/Delhi Clause 6th of the definition of grievous hurt under section 322 IPC. Since they used a paper cutter for causing grievous hurt upon the victim, their act would be covered under section 326 IPC.
Defence raised by the accused persons
40. In his statement recorded under section 313 Cr.P.C. the accused Waseem Akram has pleaded that he had been falsely implicated in the present case by the complainant Jyoti at the instance of her father in con nivance with the police officials of PS New Ashok Nagar. He also stated that the complainant Jyoti had filed a false complaint against him at PS Kalyanpuri FIR No. 168/2014 Ex. PW8/A, at the instance of her father and he had been acquitted in the said case. He further stated that the opin ion regarding nature of injuries was given by the doctor at the instance of SI Ranvir Mavi, the IO.
41. Accused Waseem Akram led the evidence of his brother DW1 Im ran Khan, who deposed that on 27.07.2014 at about 08.00/08.15 pm ac cused Waseem Akram had gone with him for Namaz and they came back to his house at about 09.30 pm. They came to know that the police had come to their house and took away their 23 brothers, who were present in the house at that time. DW1 came to know that accused Waseem Akram had been called at the police station. He took accused Waseem Akram to SC No. 1192/2016 Page 28 of 32 ASJ04/KKD/Delhi PS Kalyanpuri and left him there. Later he went to PS New Ashok Nagar alongwith his father as he came to know that accused Waseem Akram had been taken to PS New Ashok Nagar and he came to know that accused Waseem Akram had been detained by the IO.
42. Accordingly, accused Waseem Akram has led the evidence of DW1 to show that he was not present at the spot at the time of incident and had gone to offer Namaz at the mosque alongwith DW1 Imran Khan. Hence, accused Waseem Akram has sought to raise a plea of alibi. As regards the plea of alibi, it is settled law that the plea of alibi has to be proved with absolute certainty so as to exclude any possibility of the presence of the accused at the place of occurrence. When the presence of the accused at the scene of occurrence has been satisfactorily established by the prosecu tion through reliable evidence, normally the court would slow to believe any counter evidence to the effect that he was elsewhere when the occur rence happened. It has accordingly been held that the burden on the ac cused to prove the plea of alibi is rather heavy and strict proof is required for establishing plea of alibi. (Binay Kumar Singh v. State of Bihar, AIR 1997 SC 322, referred to.)
43. It is pertinent to note that in his statement recorded under section 313 Cr.P.C. no such plea has been taken by the accused Waseem Akram SC No. 1192/2016 Page 29 of 32 ASJ04/KKD/Delhi that he was not present at the spot at the time of incident. No suggestion as regards the said fact has been given to PW1 i.e. the complainant Jyoti. Hence, the plea of alibi has been raised by accused Waseem Akram as an afterthought and therefore he has failed to discharge the heavy onus to prove the said plea. Infact the only defence taken in the statement under section 313 Cr.P.C. is that the complainant Jyoti had falsely implicated him at the behest of her father in connivance with the IO. No suggestion in this regard has been given to complainant Jyoti PW1 in her crossexam ination. No reason has been given as to why the IO would act in con nivance with the complainant and her father in falsely implicating accused Waseem Akram. Only a bald suggestion in this regard has been given to the IO that the complainant has lodged a false case against the accused persons at the instance of her father. No suggestion has even been put to the IO PW16 that he had connived with the complainant and her father to falsely implicate the accused persons. Hence, the defence raised by ac cused Waseem Akram remained a bald one and has not been proved on record.
44. In his statement recorded under section 313 Cr.P.C. accused Waseem Khan stated that he had been falsely implicated in the present case by the complainant Jyoti at the instance of her father in connivance with police officials of PS New Ashok Nagar as he was a friend of ac SC No. 1192/2016 Page 30 of 32 ASJ04/KKD/Delhi cused Waseem Akram. He also stated that he was not present on the spot at the time of incident.
45. Accused Waseem Khan led the evidence of Smt. Afroz as DW2, who deposed that on 09.08.2014 at about 8.008.30 am police officials had come to detain accused Waseem Khan, who used to live in her neighbour hood in the same gali prior to 09.08.2014. They went to the police station but the police did not release him.
46. Accordingly, accused Waseem Khan in his statement recorded un der section 313 Cr.P.C. took the defence of alibi and stated that he was not present at the spot at the time of incident. In this regard only a bald sug gestion has been given to the victim PW1 Jyoti by the accused that he was not present at the spot at the time of incident and that he had been falsely implicated because he was residing in the same block as that of accused Waseem Akram. No defence has been led by the accused Waseem Khan to show that he was present elsewhere at the time of incident. In his state ment under section 313 Cr.P.C accused has merely stated that he was not present there. No evidence has been led to show the presence of accused Waseem Khan elsewhere. No independent evidence of any defence wit ness has been led by the accused in support of his plea of alibi. Hence, ac cused Waseem Khan miserably failed to prove the plea of alibi and ac SC No. 1192/2016 Page 31 of 32 ASJ04/KKD/Delhi cordingly his defence in that regard does not stand proved.
47. In view of the aforesaid discussion, the prosecution has not been able to prove the charge under section 307/34 IPC against the accused per sons beyond reasonable doubt and the accused persons are acquitted of the charge under section 307/34 IPC. However, the accused persons are held guilty for causing grievous hurt by use of dangerous means to victim Jyoti in furtherance of their common intention and hence convicted for the of fence under section 326 IPC read with Section 34 IPC.
order
DEEPALI Digitally signed by
DEEPALI SHARMA
SHARMA Date: 2021.12.23 13:22:51
+0530
(Pronounced in the open ( Deepali Sharma )
Court on 23.12.2021) Addl. Sessions Judge 04 (East)
Court No. 10: Karkardooma Courts
Delhi
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