Sanjay & Ors v. State N.C.T. of Delhi

ORDER ^QRALV

¶1The four appellants stood: trialj in the court of sessions (in SessionsCase no. 716/199b;on'tiie/K^ gatheredduring investigationof first infoiThUtip^^i-epo^^^^^^^ 168/1992of police station Janak Puri on the charge for the offence under Section 307 read with Section 34 of Indian Penal Code, 1860:-(IPC), with additional charge under Section 25 Arrris' Act Having been framed against appellant Bhupender Kumar (A-2). The gravamen of the charge of attempt to commit murder by acts in furtherance of their common intention, was essentially,that on 17.03.1992at about 9.30 p.m. in the vicinityof house no. 25, PanchsheelColony,UttaniNagar Delhi,they had over-powered Hira Lai (PW-3) and, upon exhortation from appellant Sanjay (A-l), appellants Bhupender Kumar (A-2) and Page I of9 Kamal Kumar (A-3) having caught hold of him, appellant Vijay Kumar had taken out a knife from his trousers and had given knife blows on the person of PW-3 statedly with the intent to cause death and with the knowledge that the resultant injuries would cause death, A-1 having also used the same very knife to inflict some injury on the same person after he had fallen on the ground upon assault with knife by A-4. It was also the case of the prosecution that knife was recovered from the possession of A-2 in the course of investigation, this leading to the separate charge, under Section 25 Arms Act, 1959 being framed against him. , ; •

¶2The trial court, by its judgment!dated 01.08.200^ held that the charge under Section25 Arm&:Actihad-^ proved againstA-2 and, thus, he was acquitted on that store. The trial court, however, found that the prosecutionhad jproVeE case beyond all reasonable doubts against these appellants^ri<th^|^^ under Sections 307/34 IPG and, thus, convicted^,,themi^-i •^ order dated

24.08.2001, the appellants were: sentenced to rigorous imprisonment for three years with fine of Rs. 5,000/- each, in default, further rigorous imprisonment for-jsix'Jjto of set off under Section 428 Cr.P.C. having been extended. It was also directed by the trial court that if the fine were to be released, Rs. 10,000/- would be paid to the victim Hira Lai.

¶3The record of this appeal would show that the trial court record was requisitioned and added, to be placed before the Court. The previous proceedings recorded on the file of this criminal appeal also Page2 of9 show that the said trial court record went missing for reasons which have not been discovered or found out till date. Some administrative inquiries were initiated primarily with the objective of pinning down the responsibility on the official(s) responsible for the loss of the record, the same, however, not taking the matter anywhere. Be that as it may, pursuant to certain directions given by this Court, in the wake, inter alia, of reports being called, amongst others, from the Registrar General of this Court, an administrative committee of two Hon'ble Judges of this court, is stated to have been constituted by the Chief Justice for taking steps so that;Such_lossesdo not recur in future.

¶4Meanwhile, directions were giyem registry to the trial court to re-construct the record. The ehtire fecord unfortunately could not be re-constructed, the medico l0go certificate (MLC) of the victim (PW-3)beingone ofthe crucial,documentswhichare not available. It is noted from the record, reconstructed^^^^^^ extent possibleby the trial court, that the examiningmedical''^ who had preparedthe MLC had also not been broughtto-tKe^#ialcourtfor his depositionto be recorded. In his lieu, another medical officer Dr. B. Mishra (PW-8) was examined, he only narrating the contents of the said document as also proving, in the process, his opinion as to the nature of injuries as had been recorded by him on 05.06.1992. The evidence of the first informant Savitri and her husband, the victim (PW-2 & PW-3), copies of deposition of Brij Nath Pal (PW-5) and Inspector Mahesh Kumar (PW-9) are mercifully available besides testimonies of certain other witnesses, this in addition to some of the documents filed with the charge-sheet. Page 3 of9

¶5Against the above backdrop, both sides have agreed that no usefulpurposewouldbe servedby sendingthe case for de novo trial, inasmuchas issues that arise can be examinedand addressedon the basis of the available re-constructed record.

¶6The submissionsof both sides have been heard and the record presented,afterreconstructionby thetrialcourt,has beenperused. •W, y js clear from the copy of the FIR that PW-2, wife of the victim,had informedthe victimon his arrivalfrom his duty, at the end ofthe day, thatthe reasonfor therebeingno electricityavailablein the householdwas becauseofcertain-actso^ or omissionon the partofthe appellants,she.accusmgtiifeofdisruptionby meddling with the electricsupplylines in the area,TheevidenceofPW-2 and PW-3, however, on being closely:examined, also brought out that there was no regular electric supply,,lin^.s in the locality or to the household of first informal-# supplies having been procured by the neighbourhoodti^by .u^ extraction of electricalenergyfrom the overheadpoweflines.

¶8Be that as itmay, it is clearfrom theirtestimonythatliponPW-2 informingPW-3 that it was trieappellaiitswho were responsiblefor the disruptionofthe electricalsupplyto his house,PW-3 proceededto confrontA-1. He is on recordto statethat he had gone straightto the house of A-1 and had questionedhim as to the reasons why he had done so. This questioningclearly was uncalled for as PW-2 has admittedduringher testimonyin the courtthat she had not seenany of the appellantsmeddlingwith the supply lines in such a way that it Crl.A.No.673/200I - • • Page4 of9 would disrupt the power supply to her house, she having made some inferences or assumptions because she had seen them moving around. These assumptions and inferences were wholly improper and unfair. Nonetheless, when PW-3 started improperly questioning A-1 as to his role in the matter it admittedly led to a scuffle. This is what both PW-2 and P-3 have naitated in their deposition. It does appear that the witnesses would also state that the members of the family of A-1 were present at such point of time. But then, no role was attributed to them, their presence not being mentioned ,in the FIR or in the statements made under Section Gr.P.|C. :recorded during investigation. Reference was made to the presence v6f-PW-5 at the time of assault with knife. But the said witness would|riot support the prosecution case,he onlynarratingthe saliencedlpventsfromthe timehe arrived 1- - 'i-i' )•: ,^1 at the scene to find PW-3 lying on the ground in a pool of blood. The effortsofprosecutorto bring;:faGt^s.,ih'|u|)^ortofthe prosecutioncase by cross-examinationofthisiwithe^sdiinotbearfruit.

¶9There is one more cruciaBeleinent-which has been brought out during the court testimony of PW-2 and PW-3 and it is that when PW-3 had approached the house QfArl", he was alone, that is to say the other appellants were not present at the scene. They would arrive together, later, when the scuffle was on. They assumably and consequently would not know the background facts. From this perspective, it is safe to assume that A-2, A-3 and A-4 jumped into the ongoing scuffle between PW-3 on one hand and A-1 on the other mindlessly taking side. A-1 undoubtedly had a cause to be angry. He had been wrongly accused, without any foundation, of disrupting the Page 5 of9 electricity supply to the house of the victim. He, thus, naturally would feel bad which is also how even PW^2 and PW-3 would describe his reaction. When this had resulted in a scuffle, it ended up in grappling, A-2, A-3 and A-4 having arrived at the scene after A-1 having caught hold of PW-3. It is at that stage when he is said to have calledupon A-4 to attack PW-3. The exhortation cannot be read as one intended to persuade A-4 to use the knife to kill. From this reading of the evidence, the knife blow given by A-4, in which regard PW-2 and PW-3 are consistent and, therefore, their evidence being reliable, it being corroborated by the evidence of PW-8, intent to kill, leading to the offence of attempt to commit murder, caniidt be established.

¶10In the available evidence,: tlie^Mtu^ the injury iiiflicted is loosely described as one on tHe chest regibn. It is not clarified in any manner, not even by PW-8, as ,tb which s^pecificpart of the chest had been aimed at. Similarly, ther,e,.ik-;n^^ of the dimensions of the injury sustained. An ^opihipn^as-and effect of the injuryhas to be formed by the.court.--^or this, the situsofthe injury and its dimensions are crucial in which regard there is deficiency in the materialwhichhas beeiiipf^errted. - .i"

¶11From the above facts and circumstances, it cannot also be inferred that the stab wound that was inflicted on the person of PW-3 was one likely to cause death or that it was such wherein while intendingto cause the injurythe assailantwas bound to know it to be likely to cause death. Page 6 of9

¶12Consequently, the conviction for the offence under Section 307 IPG cannot be upheld. The prosecution, however, has brought home its case for offence of the appellants having acted in furtherance of their common intention to voluntarily cause hurt to PW-3 by a dangerous weapon, a cutting instrument, which is an offence punishable under Section 324 IPG.

¶13Thus, the impugned judgment is modified. Instead of they being held guilty and convicted on the charge under Section 307 read with Section 34 IPG, the appellants are held guilty and convicted on the charge under Section 324 read with Section 34 IPG.

¶14The nominal roll show's that Vijayv'^K^ (A-4) has already undergone incarceration (including the 'reniission earned) for one year seven months and fifteen days. Similarly, the appellant Sanjay (A-1) has already suffered incarceratiqn (iriplusion remission earned) for a period of about nine months; Iheyperiod.of^ of Bhupender ' Kumar (A-2) and Kamal Tvumar:,4<^3)/i^ in the region ofthree months each.

¶15The role of Bhupender Kumar (A-2) and Kamal Kumar (A-3) is distinct from that of other two appellant's, in that they came on the scene later and they themselves did not inflict the knife injuries. They stand convicted because they had aided the other two in the incident. j The prim^e assault was committedby Vijay Kumar (A-4), the role attributed to Sanjay (A-1) coming later. The incident occurred 26 years ago. These appeals are being decided 17 years after the judgment. In these facts and circumstances, it seems just and proper Page 7 of9 that while restrictingthe substantivesentenceof imprisonmentto the terms of incarceration already undergone by each of the convicted persons, the amount of fine be suitably enhanced so that the complainant is thereby duly compensated.

¶16Thus,the orderon sentenceis modified. Each of the appellants shall stand sentencedto imprisonmentfor the periodof incarceration already suffered by them with fine of Rs.25,000/- each. In case of default in payment of fine, they shall suffer further simple imprisonment for six months each.r The amount of fine, upon realization,shall be paid as compensationto the victimHiraLai (PW-3). _ \ lr-: •

¶17The appellantsBhupenderKumar;(A-2)and VijayKumar(A-4) have shown receiptsdated 24.08.200:1.and 03.09.2001 whereby they had depositedthe fine amount earlier-imposedwith the trial court. Though the other appellantsaKoii/claim.that they have depositedthe fine as earlier imposed (Rs-S^p^ trial court, they are unableto m^ustercopiesofthereceiptsof suchdeposit.

¶18The amount of fifie asjmposedby the'trial court, if deposited, shall be liableto be adjusted.'The trial cdurtshall verifythis fi"om its own records before enforcing the modified order on sentence. The appellants are granted time to deposit the amount of fine, in terms of above directions, with the trial court, on or before 21.01.2019. In case ofany default,the trialjudgeshallbedutyboundto issueall necessary process in accordance with law to enforce the modified order on sentence. After the amount of fine has been realized,the trial judge Page8of9 shall take steps to remit the payment of compensation to the victim as above.

¶19The appeal is disposed of in above terms.

¶20The Station House Officer of the police station Janak Puri shall render all assistance to the trial court. DECEMBER 19, 2018 nk/yg Crl. A. No. 673/2001 "'v r. •-'v a','-. i-f 'v , -• -'.i.. i--: - t:'., -:i-. -V® -a .'.ii. '• R.K. GAUBA,J. Page 9 of9

IN THE HIGH COURT OF DELHI AT NEW DELHI Decidedon:19*'^December, 2018 .+ CRL. A. 673/2001 SANJAY & ORS. Appellants Through: Mr. Prag Chawla & Ms. Ruchi Kapoor, Advs. versus STATE (N.C.T. OF DELHI) ..... Respondent Through: Mr. K.S. Ahuja, APP for the . State with SI Badlu Rar^ CdRAM: HON'BLE MR. JUSTICE mK.GAUte