Rajbir vs The State of NCT of Delhi

Sunil Gaur, J.—By way of this appeal, the appellant Rajbir, is assailing the judgment and order on sentence of 10th August, 1999 and 18th August, 1999 respectively, of trial court, whereby he has been convicted to undergo RI for five years and to a fine of Rupees one thousand for the offence u/s 307 of the IPC and in default of payment of fine, to undergo RI for three months. Appellant has also been convicted and sentenced to undergo RI of six months for the offence u/s 27 of Arms Act. Both the sentences have been ordered to run concurrently.

The facts of this case which needs to be noticed for disposal of this appeal are that on 12th May, 1995, at about 6:00 p.m., on receipt of information at Police Station Bhajanpura, Delhi, ASI R.B. Joshi (PW-10) on receipt of DD No. 24 (EX. PW10/A) alongwith Constable Pradeep Kumar and SI Ishwar Singh reached at the spot and then proceeded to GTB Hospital where injured-Geeta (PW-1) was admitted. Her MLC was obtained and her statement (EX. PW1/A) was recorded. On the basis of her statement, FIR No. 242 of 1995, u/s 307 of the IPC was registered. After completion of investigation, Challan was filed in the trial court, where the appellant/accused was charged for the offence u/s 307 of the IPC and Section 27 of Arms Act, who which he pleaded not guilty and claimed trial.

Fourteen witnesses were examined on behalf of the prosecution. The material evidence is of Complainant-Geeta (PW-1) and one eye witness to the incident, Shyambir Singh (PW-3). Dr. T.S. Dalal (PW-6) has proved the MLC (EX. PW6/A) and Dr. Rajpal (PW-12) has examined the X-Ray report (EX. PW12/A) of the complainant - Geeta (PW-1). ASI R.B. Joshi (PW-3) is the Investigating Officer of this case.

In her testimony, ComplainantGeeta (PW-1) has deposed the material facts, on the basis of which FIR of this case was registered and trial of this case commenced and the appellant has been convicted, as noticed above. The brief narration of this case, as deposed by her, is as under:

On 12th May, 1995, while Complainant-Geeta (PW-1), was alone in her tenanted house, as her husband had gone to sell vegetables and her children were playing in the street, appellant/accusedRajbir, entered her house with an intention to make illicit relations with her. Geeta (PW-1) protested it but he caught hold her hand and told her that he wanted develop intimate relations. On being pushed by Geeta (PW-1), appellant/accused took out a knife from his pant pocket and gave knife blows twice on her right shoulder and right arm. Appellant/accused also stabbed on her left arm and on her belly. While Geeta shouted in pain, her neighbours gathered and appellant/accused managed to flew from the spot along with the knife. Geeta was taken to GTB hospital in unconscious condition where she was given medical aid.

After examining the witnesses, statement of accused u/s 313 of the Code of Criminal Procedure was recorded, in which appellant/accused accepted that he had illicit relations with complainant-Geeta (PW-1) but he stated that he has been falsely implicated in this case and the said injuries were cause to Geeta by her husband and she has been forced to depose against him. However, no evidence was led by appellant in his defence.

Both the sides have been heard and the evidence on record has been perused.

At the very outset, learned Counsel for Appellant does not challenge the impugned conviction of the Appellant on merits but states that the offence made out, does not fall u/s 307 of Indian Penal Code and infact, it falls u/s 324 of the Indian Penal Code.

Learned Counsel for Appellant has taken this Court through the evidence of the injured as well as through the evidence of Doctor (PW-6) to point out that there was no intention on the part of the Appellant to have attempted to cause death of the injured in this case and the only intention was to have illicit relations with the injured, who was married lady and was older than appellant and since she had resisted, therefore, in a fit of anger, Appellant had caused injuries with a knife, which although have been opined to be grievous but are not proved to be grievous. The attention of this Court has been drawn to the evidence of Dr. T.S. Dalal (PW-6) to point out that the opinion regarding nature of injuries has not been given by him but he has proved the said opinion.

It has been pointed out that this witness i.e. Dr. T.S. Dalal (PW-6) has however stated in his cross-examination that the depth of the injuries have not been given. The description of four injuries sustained by the injured is as under:

a) Two CIW on right forearm distal 1/3rd �" long

b) One CLW on left forearm near elbow 1" long

c) One CIW on abdominal wall right iliac fossa near anterior superior iliac spine 1" long penetrating.

d) Two CIWs one right scapula near upper border and another near the tip 1" long.

Dr. T.S. Dalal (PW-6) has admitted in his evidence that without giving the depth of the injuries, it is not possible for a doctor to opine regarding the nature of the injury as to whether it was simple, grievous or dangerous. It is also pointed out that there is nothing on record to establish that the injured had remained admitted in hospital for a period of twenty days. Thus, it is submitted that the injuries sustained by injured (PW-1) has to be taken as simple.

After having heard both the sides and upon perusal of the evidence on record, I find considerable substance in the aforesaid contention of counsel for the Appellant. The offence committed in this case would certainly fall u/s 324 of Indian Penal Code and not u/s 307 of Indian Penal Code. This aspect, regarding the nature of the offence committed by the Appellant, has not been considered in the impugned judgment. As a result thereof, conviction of the Appellant stands altered from Section 307 Indian Penal Code to Section 324 of Indian Penal Code.

On the quantum of sentence, learned Counsel for Appellant states that the Appellant was aged 23-24 years at the time of this incident and that he is not a previous convict. It is also stated that the Appellant has already faced agony of trial and appeal proceedings since May, 1995, and his conduct in jail has been satisfactory.

As per nominal roll of the Appellant, he has already undergone the sentence of two years, four months and twenty days (including remissions). Offence u/s 324 of IPC does not carry any minimum sentence.

In the facts and circumstances of this case, the Appellant is sentenced to the period already undergone by him for the offence punishable u/s 324 of Indian Penal Code. However, sentence of fine of Rs. 1,000/- is maintained. Learned Counsel for Appellant states that the fine has already been deposited.

This appeal stands partly allowed to the extent indicated above and is disposed of accordingly.