Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 741

IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
BALI – Appellant
Versus
STATE THROUGH GOVERNMENT OF NCT – Respondent
Crl. Appeal No. 36 of 2021
Decided On : 14-03-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr. Ashok Mittal.
For the Respondent: Ms. Neelam Sharma.

Point of Law: Procedure under Section 313 Cr.P.C. is but a facet of principles of natural justice giving an opportunity to an accused to present defence. The burden of proof on an accused in support of defence taken under S. 313 Cr.P.C. is not beyond all reasonable doubt as it lies on prosecution to prove charge.

Headnote:
Criminal Procedure Code, 1973 - Section 374(2) and 313 - Indian Penal Code, 1860 - Section 307 and 308/34 - Criminal Trial - Wounds and Weapons - Offence of Attempt to Murder and Attempt to commit culpable homicide - Intention or knowledge - Testimonies of victims - Appeal against conviction - Alleged that when his son-in-law was returning home from work, then on the way accused Bali and his associate (JCL), (both used to reside in his neighborhood) had called son-in-law by saying “Haddi Kahan Se Aa Raha Hai.” On this, son-in-law did not respond to accused Bali and his associate (JCL). However, after reaching home, son-in-law disclosed abovesaid fact to him (complainant). Thereafter, complainant and son-in-law went to the house of JCL i.e. associate of Bali, where they met Bali and his associate (JCL) as well as father of JCL namely Mani Ram and they complained father of JCL namely Mani Ram against accused Bali and JCL. Complainant also alleged that on this accused Bali and his associate (JCL) threatened them to kill and in meanwhile, accused Bali had inflicted a knife blow on his cheek and accused Bali also inflicted knife blow on stomach of son-in-law and during said incident, associate of accused Bali i.e. JCL also caught hold him (complainant) and son-in-law and also beaten them and thereafter, when they (complainant and son-in-law) raised alarm then accused Bali and his associate (JCL) fled away from there.
Finding of the Court:
It is worthwhile to note that from the testimonies of the two injured witnesses in the present case, no intention or knowledge on the part of the appellant to cause death at the time of inflicting of injuries is made out - Court is of the opinion that the injuries caused to the victims were the outcome of a sudden fight and the act of the appellant, though voluntary, was not caused with such intention or knowledge and/or under such circumstances that if death was caused of the victims, the appellant would have been guilty of culpable homicide not amounting to murder. Accordingly, the essential ingredients to establish commission of offence under Sections 308/34 IPC cannot be culled out from the facts of the present case - The factum of injuries having been inflicted on the victims with a knife, i.e. a ‘dangerous weapon’ in terms of Section 324 IPC, has been consistently deposed by Bhagirath as well as Om Prakash, who are both injured eye-witnesses and whose testimonies have been found reliable. Besides the testimonies of the victims, the allegations in the present case are corroborated by the MLCs of the victims which were prepared on the day of the incident and which have been duly proved during trial by (PW-3) - Appellant is held not guilty of offence punishable under Sections 308/34 IPC and his conviction is altered to one under Section 324 IPC.
Result: Appeal allowed.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present appeal has been filed under Section 374(2) Cr.P.C. on behalf of the appellant assailing the judgment on conviction dated 29.10.2020 and the order on sentence dated 11.12.2020 passed by the learned ASJ-05, West District, Tis Hazari Courts, Delhi in Case No. 58264/2016 arising out of FIR No. 535/2015 registered under Section 307 IPC at P.S. Kirti Nagar, Delhi.

2. Vide the impugned judgment, the appellant was convicted for the offence punishable under Sections 308/34 IPC and the offence punishable under Sections 324/34 IPC. By way of the order on sentence dated 11.12.2020, he was sentenced as follows:

(i) For the offence punishable under Sections 308/34 IPC, to undergo Simple Imprisonment for a period of 02 years, alongwith payment of fine of Rs. 1,000/- in default whereof to further undergo Simple Imprisonment for a period of 01 month.

(ii) For the offence punishable under Sections 324/34 IPC, to undergo Simple Imprisonment for a period of 01 year, alongwith payment of fine of Rs. 1,000/- in default whereof to further undergo Simple Imprisonment for a period of 15 days.

Both the sentences were directed to run concurrently. The benefit of Section 428 Cr.P.C. was extended to the appellant.

3. Brief facts of the case, as noted by the Sessions Court, are as under:

“1. On 18.09.2015, DD No. 39A was assigned to SI Rajpal and thereafter, he alongwith Ct. Vijay went to the spot, where they came to know that injured have already been shifted to Acharya Bhikshu Hospital and thereafter, they also went to the said hospital where injured Bhagirath and injured Om Prakash met them under MLC No. 10906 and MLC No. 10801 respectively. Thereafter, SI Rajpal recorded the statement of injured/complainant Bhagirath. In his complaint, injured/complainant Bhagirath alleged that on 18.09.2015 at about 11:00 AM, when his son-in-law namely Om Prakash was returning home from work, then on the way accused Bali and his associate (JCL), (both used to reside in his neighborhood) had called Om Prakash by saying “Haddi Kahan Se Aa Raha Hai.” On this, Om Prakash did not respond to accused Bali and his associate (JCL). However, after reaching home, Om Prakash disclosed the abovesaid fact to him (Bhagirath). Thereafter, complainant Bhagirath and Om Prakash went to the house of JCL i.e. associate of Bali, where they met Bali and his associate (JCL) as well as father of JCL namely Mani Ram and they complained the father of JCL namely Mani Ram against the accused Bali and JCL. Complainant also alleged that on this accused Bali and his associate (JCL) threatened them to kill and in the meanwhile, accused Bali had inflicted a knife blow on his cheek and accused Bali also inflicted knife blow on the stomach of Om Prakash and during the said incident, the associate of accused Bali i.e. JCL also caught hold him (complainant) and Om Prakash and also beaten them and thereafter, when they (complainant Bhagirath and Om Prakash) raised alarm then accused Bali and his associate (JCL) fled away from there.”

4. After completion of investigation, the charge sheet was filed against the appellant under Sections 307/34 IPC. The case was committed by the learned Metropolitan Magistrate to the Sessions Court, wherefore charges were framed against the appellant under Sections 307/34 IPC and Sections 326/34 IPC, to which he pleaded not guilty and claimed trial.

5. Learned counsel for the appellant contended that the appellant has been falsely implicated in the present case, as the injured persons had a prior dispute with the appellant’s father over an amount of Rs. 500/-. It was further contended that the appellant could not have been convicted under Section 324 IPC, as the weapon of offence was not recovered and resultantly, there was no opinion from the concerned Doctor.

6. Learned APP for the State, on the other hand, supported the impugned judgment. It was submitted that injuries were caused by the appellant on the stomach and face of the victims wi