Rajinder Kumar vs State (Govt. NCT of Delhi)

Kailash Gambhir, J.—By way of this appeal filed u/s 374 Cr.P.C. the appellant seeks to challenge the judgment and order on sentence dated 24.4.2003 passed by the court of Sh. Babu Lal, Addl. Sessions Judge, Delhi arising from FIR No. 332/97 registered u/s 307/34 IPC at police station Dabri. Brief facts which led to the filing of the Challan by the police are as under:-

Muni Lal, father-in-law of accused Rajinder Kumar lodged a report with P.S. Dabri alleging that he had been employed as driver in B.E.L. Ghaziabad and in the same company his daughter had also been employed. They allegedly used to catch Charted Bus to go to their place of employment from Pankha road opposite Gandhi Market. To reach there they had to pass through Gandhi Market. From that very bus stop his daughter Sangita who was undergoing training course of ANM also used to catch bus. Santosh allegedly was crossing the road to reach bus stop at Pankha road when a sector hit his father from behind as a result of which he fell down. On that scooter his son-in-law Rajinder, his elder brother Dalip and another person were sitting having hockey sticks in their hands. Accused Rajinder started hitting on his legs with hockey stick. At that time one Maruti van was also standing there in which three persons were sitting and who were saying that it was the opportune time that the complainant should be finished. Dalip and his third associate also started beating the complainant with hockey sticks as a result of which he fell unconscious. The identity of third associate of accused persons is alleged to be one ''Chaudhary'' and who had threatened him outside court on 26.5.1997. On the basis of this complaint a case was registered and investigation commenced. Prior to lodging the report message was passed on to the police regarding the incident. PCR reached the spot and removed the injured to Safdarjung Hospital where injured was medically examined. On medical examination fractures were found on both the legs of the complainant. Statements of witnesses were recorded and accused persons were arrested. Site plan was prepared. After investigation the police came to the conclusion that a case under S. 307/34 IPC was made out against all the three accused persons. Accordingly, they filed the challan against the accused persons.

The prosecution had examined as many as eight witnesses in all and out of those, three are eye-witnesses who were alleged to have witnessed the said incident. Based on the prosecution evidence and the evidence led by the defence, the learned court of Sessions Judge found the appellant guilty for committing the offence punishable u/s 308 IPC. The court found that no case was proved by the prosecution as against the other two accused persons, namely, Dalip and Gulshan who were accordingly acquitted of the charges. Based on the said conviction the accused was sentenced to undergo R.I. for a period of three years along with imposition of fine of Rs. 500/-. The fine of Rs. 500/ - has already been paid by the appellant. Assailing the said conviction, counsel for the appellant contends that based on the same evidence led by the prosecution, the Sessions Court had acquitted the other two accused persons while, convicted the present appellant. Counsel for the appellant further submitted that even if it is accepted that the prosecution was successful in proving its case, then, also the offence u/s 308 IPC is not made out and at best it could be offence punishable u/s 325 IPC. The contention of the counsel for the appellant is that admittedly the complainant had received fracture injuries in the lower part of his legs, and, thus there was no intention on the part of the appellant to cause death of the complainant which is the necessary ingredient so as to attract Section 308 IPC. Counsel for the appellant has drawn my attention to the testimony of PW 1 Munni Lal, complainant/injured who had deposed that he could not tell as to who was driving the offending vehicle as when he was about to cross the road, one two wheeler scooter hit him from behind. Counsel for the appellant also referred to the testimony of PW 8 Dr. Sita Laxmi who in his statement stated that the complainant had received injuries in his lower legs and the same were caused by some blunt object. The argument of the counsel for the appellant is that with such injuries in the lower legs of the claimant/ injured it could not be inferred that such injuries were caused with the intention to cause death of the complainant. Based on above submissions counsel for the appellant states that the appellant has been wrongly convicted u/s 308 IPC.

Mr. Pawan Sharma, APP for the State, on the other hand contends that the case of the prosecution is that the complainant had received injuries when he was hit by a two wheeler scooter from behind. It has also been proved by the prosecution that the injured had received fracture injuries in his lower limbs. The MLC has also been proved on record as Ex. PW 8/A. The counsel for the State thus states that the Appellant has been rightly convicted and sentenced u/s 308 IPC.

I have heard learned counsel for the parties and perused the record.

To bring home the offence under S. 308 IPC, the prosecution must prove that:-

(i) the death of a human being was attempted;

(ii) such attempt was of the accused; &

(iii) the act was done with intention or knowledge & under the circumstances that if it had caused death, the act would amount to culpable homicide not amounting to murder.

In this regard the Apex Court also in Sunil Kumar Vs. N.C.T. of Delhi and Others, observed as under:-

The view taken by the High Court is obviously erroneous because offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s 308 IPC whereas punishment for simple hurts can be mated out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law.

In the instant case the injury disclosed in the MLC is in respect of assault on the lower legs of the complainant. Once the complainant had received injuries on his lower legs and that too fracture injuries, it is difficult to believe that appellant had any intention to kill or murder the complainant unless any cogent evidence to this fact is adduced and proved by the prosecution. Admittedly no such evidence is on record to prove that the appellant had any such intention to kill the complainant. In view of the above discussion no case u/s 308 IPC is made out against the appellant. At best, the appellant could be held guilty for an offence u/s 325 IPC. Resultantly, the impugned judgment and order on sentence is modified to the extent of holding the appellant guilty for committing offence u/s 325 of the Indian Penal Code. Without giving any direction to modify the substantive sentence & fine as imposed by the learned ASJ the appeal of the appellant is allowed in terms of the directions given above.