Full Text
HIGH COURT OF DELHI
STATE OF DELHI .....Appellant
Through: Mr. Aman Usman, APP for State
Industrial Area.
Through: Ms. Charu Sharma and Mr. Nishant Nain, Advocates for R-2.
JUDGMENT
1. The present appeal is filed on behalf of the appellant/State against the judgment dated 28th March, 2008 (hereinafter referred to as the “impugned judgement”) and against the order-on-sentence dated 28th March, 2008 (hereinafter referred to as the “impugned order on sentence”) passed by the court of Additional Sessions Judge, Patiala House Courts, Delhi (hereinafter referred to as the “Trial Court”) in Sessions Case bearing No. 163/07 arising out of the FIR bearing No. 703/2000 registered at Police Station- Okhla Industrial Area, Delhi.
2. The respondents vide the impugned judgement were held guilty for committing the offence punishable under Sections 325/323/34 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). The respondents vide the impugned order on sentence dated 28th March, 2008 were given benefit of probation and each of them were directed to pay a compensation of Rs. 10,000/- to the injured.
3. In the appeal, it has been prayed by the appellant that the impugned judgment be set aside and the respondents be punished for the offences punishable under Section 308/34 IPC and in the alternative, if the Court comes to the conclusion that the respondents were correctly convicted under Sections 325/323/34 IPC, then pass an order of conviction by setting aside the impugned order on sentence.
4. The respondents were charged under Sections 308/34 IPC on the allegations that on 26th November, 2000, at about 10:00 PM near House No. RZ-483, Gali No. 13B, Tughlakabad Extension, New Delhi, the respondents in furtherance of their common intention inflicted grievous injuries on the person of Bable S/o Satdev Sharma with such intention and knowledge and under such circumstances if by that act, they had caused the death of Bable, they would have been guilty of culpable homicide not amounting to murder, to which they pleaded not guilty and claimed trial. The Prosecution, in order to prove its case, examined 12 witnesses. The statement of the respondents were recorded under Section 313 CrPC, wherein the respondents had denied incriminating evidences, pleaded innocence and claimed false implication. The trial resulted in conviction under Sections 325/323/34 of the IPC. Pursuant thereto, the trial court, vide order on sentence released the respondents on probation of good behaviour. The apeal qua respondent no. 1 - Shyam stands abated during the pendency of the appeal.
5. The learned APP appearing for the State has argued that the impugned judgment in relation to not convicting the respondents under Section 308/34 IPC is contrary to the evidence of the prosecution witnesses and the gravity of offence. It was argued that the trial court erred by convicting the respondents for the offence punishable under section 323/325/34 IPC instead of that under sections 308/34 IPC despite the fact that the injuries sustained by the injured were grievous in nature and were inflicted on vital parts of his body. Learned APP for the State submitted that the respondents ought to have been convicted under Section 308 IPC and be sentenced to imprisonment. Accordingly, impugned judgment and order on sentence are liable to be set aside to that extent.
6. Learned counsel for the respondent No.2, has argued that the trial court has passed the impugned judgment and order on sentence after considering the evidence on record. The appeal is without any merits and is liable to be dismissed.
7. I have heard the learned APP for the State and ld. Counsel for the respondent No.2 and have examined the record.
8. The injured - Bable has been examined as PW-8 and has deposed that on 24th November, 2000, a quarrel had taken place between Brahm Parkash and Layak Ram he had intervened and pacified both of them. On 26th November, 2000 at about 10.00 p.m, while he was going for bathroom, the respondent-Harshwardhan came from his backside and told him as to why he had intervened in the quarrel that took place on 24th November, 2000 respondent-Harshwardhan was holding a Danda (wood stick), respondent- Shyam was holding a sariya (iron rod) and respondent Rajiv Saxena (since deceased) was alsothere. All the above named three persons started beating him with kicks, feets, danda and sariya, on account of which he sustained injuries on his left leg, right arm and on his head. He had sustained fracture injuries on his leg and arm. PW-1 - Dr. Sheela has examined PW-8 and has proved his MLC as Ex. PW-1/A and has opined that the nature of injuries as grievous by blunt object. She has deposed that on local examination of the patient, following injuries were found: (a) cut wound over the parietal of the head of about 2 cms; (b) swelling over the right elbow;
(c) tenderness over the left forearm;
(d) tenderness over the left foot.
PW-7 - Dr. Jyoti has proved the X-Ray report of PW-8 as Ex. PW- 7/A and as per the said report there was a fracture of head of metatarsal.
9. Vide the impugned judgment, the trial court gave a finding of guilt of the respondents and the reasoning given by the trial court is as follows: “10. Ld. APP has argued that the injured had received a fracture on his head which shows that the accused persons had intention to cause culpable homicide not amounting to murder. I disagree with Ld. APP in this respect. It would be pertinent to note that there is only one injury on the head and the remaining injuries have been caused on the hands and legs of the injured. This shows that the accused persons did not have intention to cause culpable homicide not amounting to murder. It would be safe to conclude that both the accused persons i.e. Harshwardhan and Shyam voluntarily caused grievous hurt and simple hurt on the person of Bablu Sharma in furtherance of common intention. I therefore convict both of them under Section 325/323/34 IPC.”
10. Section 308 IPC reads as follows: “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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” Under Section 308 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary if he by that act caused death, he would be guilty of culpable homicide not amounting to murder. Under Section 308 IPC the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. As to the said intention or knowledge, it is relevant here to mention the observations of the Hon’ble Supreme Court in Bishan Singh & Anr. vs. The State, AIR 2008 SC 131 held as under:
having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof.”
11. Perusal of the MLC Ex. PW-1/A of the PW-8 shows that when he was examined by PW-1, he was conscious oriented and his vital signs were stable. The injuries on the person of PW-8 have been caused with sariya, lathi, fist and leg blows. These weapons were not sharp-edged and it is also opined in the MLC Ex. PW-1/A that the injuries were with blunt object. Fracture was of the head of metatarsal (bone of foot) of PW-8. There are no such injuries on the person of PW-8 which could be fatal or life threatening. There is no evidence on record to show that repeated blows were given on the vital parts of PW-8.
12. From all these facts on record, it can be said that the injuries were not caused with such intention or knowledge to cause the death of PW-8. Accordingly, this Court does not find any infirmity in the impugned judgment as to the conviction of the respondent No.2 under Sections 323/325/34 IPC and it is upheld.
13. The appellant has argued that keeping in view the seriousness of the offence, the trial court should have sentenced the respondent no.2 to imprisonment instead of giving him the benefit of probation. On the other hand, ld. Counsel for the respondent no.2 has argued that at the time of commission of offence, the respondent no.2 was below 21 years of age. At present, he is married and has three minor children and is the only earning member in the family. There is also nothing on record to show that the respondent no. 2 has any past criminal record. The present case relates to an incident which had occurred 25 years ago, while the impugned judgment itself was delivered nearly about 17 years ago and so, sending the respondent no.2 to imprisonment, as prayed by the appellant, at this distant point of time would be too harsh. Keeping in view all these facts and circumstances of the case, this Court does not find any ground to set aside the impugned order on sentence. Accordingly, the impugned judgment is upheld.
14. In view of the above discussions, the present appeal is dismissed. Pending application(s), if any, also stand disposed of.
15. A copy of this judgment be communicated forthwith to the concerned Trial Court for necessary information.
RAJNEESH KUMAR GUPTA (JUDGE) SEPTEMBER 26, 2025/nd/ik