State Of Nct Of Delhi vs Suraj @ Sanjay & Anr

Madhu Jain, J

The present appeal has been preferred by the Appellant/State of NCT of Delhi under Sections 377/378 of the Code of Criminal Procedure (hereinafter 'Cr.P.C'), assailing the judgment dated 7th May 2016 and the order on sentence dated 23rd May 2016, passed by ld. ASJ-03, Patiala House Courts, New Delhi, in Sessions Case No. 63/2014 titled State vs. Suraj @ Sanjay & Anr., arising out of FIR No. 173/2013 registered at P.S. Naraina.

By way of the impugned judgment, the ld. Trial Court convicted the Respondents for a lesser offence under Sections 308/34 of the Indian Penal Code, 1860 (hereinafter 'IPC')instead of Sections 307/34 IPC. Thereafter, vide order on sentence dated 23rd May 2016, the Respondents were released on probation of good conduct for a period of three years upon furnishing personal bonds in the sum of Rs. 10,000/- each with one surety in the like amount. Additionally, Respondent No. 1, Suraj, was directed to pay compensation of Rs. 10,000/- and Respondent No. 2, Ajay, Rs. 5,000/- to the victims. The relevant portion of the conclusion of the Trial Court is set out below:

"28. In the case in hand, it has categorically come on record in the deposition of PW2 Akash Kumar - injured that on the night of 28.07.2013 accused Suraj was under the influence of liquor and it was late in the night therefore, parents of Smt.Chanda were refusing to send her with Suraj. Accused Suraj was abusing and threatening that he would take Chanda with him at all the consequences. At about 01:30 AM when they were asleep accused Suraj along with his brother Ajay and his sister Laxmi (juvenile) again come to the house of Chanda. There were loud noises and abuses being hurled by the accused. Mother of PW2 went upstairs to know the reasons as to why accused was giving abuses. But accused Suraj and his sister began abusing her too saying that "why she is interfering". Despite many requests accused persons did not stop. PW2 also went upstairs and objected the accused. Thereafter, accused Ajay and his sister Laxmi (juvenile) caught hold of PW2 Akash and accused Suraj caused knife blows to PW2. In this scuffle PW3 Vidya also suffered knife injury. Testimony of PW2 has duly been corroborated by the testimonies of PW1 Ankit Kumar, PW3 Vidya, PW5 Sunil Prasad and PW8 Phoolo Devi. All these witnesses have correctly identified the accused persons as culprits who caused knife injuries to the victims namely PW2 Akash and PW3 Vidya. MLCs of injured persons namely PW2 Akash and PW3 Vidya have also been proved on record vide deposition of PW7 Dr. Ajay Sharma and MLC Ex. PW7/A (of injured Vidya) & MLC Ex.PW7/B (of injured Akash). PW10 Dr. Abhishek Gupta has opined the nature of injuries sustained by Vidya as grievous and injuries sustained by Akash as dangerous. Other witnesses as well as police officials are formal in nature. Taking all these facts and circumstances into consideration, I am of the view that question arises whether ingredients of section 307 IPC are met out or not. Section 307 of IPC spells out about attempt to murder. The act done by accused must be with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. In the case in hand, it has categorically come on record in the deposition of PW2 Akash that accused Suraj was under the influence of liquor, meaning thereby that he was not in his sound sense. Apart from this, it has also come on record that the injuries were caused to the injured persons with a vegetable cutting knife, which indicates that weapon of offence was not dangerous. Moreover, to prove intention or knowledge for the offence u/s 307 IPC, there must have been some connections of prior meeting of mind to cause injuries to the victim persons. Circumstances of the case clearly indicate that victim persons themselves reached at the spot to pacify the quarrel between accused Suraj and his in-laws and at that time accused Suraj was under the influence of liquor. Therefore, in these facts and circumstances, I am of the view that prosecution has miserably failed to prove the ingredients of section 307 IPC that accused persons had intention or knowledge to cause death to the victims. However, it has categorically proved on record that accused Suraj had caused knife injuries on the persons of PW2 Akash and PW3 Vidya and this act of accused persons was done 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. Therefore, I am of the view that prosecution has successfully proved its case beyond reasonable doubt for the offence u/s 308 / 34 IPC precisely for the reasons that accused Ajay and his sister caught hold of PW2 Akash and accused Suraj gave knife blows to PW2 Akash Jain. He has also caused knife blow injury to PW3 Vidya."

Factual Matrix

On 29th July, 2013 vide DD No. 6A and 7A, a call regarding an incident which occurred on the intervening night of 28th and 29th July, 2013 at premises bearing No. WZ-421, Naraina Village, New Delhi was received at P.S. Naraina, and FIR No. 173/2013 was registered.

The Respondent No. 1, Suraj @ Sanjay (hereinafter,'Suraj') was married to Smt. Chanda in the year 2011 and had a minor son, who at the time of incident was about 8/9 months old. As per the Prosecution case, on 28th July 2013, Suraj visited the house of his in-laws around 3 P.M. along with his wife Smt. Chanda. At about 10 P.M., he insisted on taking his wife back to the matrimonial home the same night. However, his father-in-law, Sunil Prasad (PW-5), requested them to stay the night and leave early the next morning, considering it was late at night and whatever food Suraj wanted, would be cooked as per his wish, however, Suraj insisted on taking Chanda along with him. Thereafter, Suraj demanded Rs.100 from Sunil (PW-5), however, Sunil (PW-5) expressed his inability to give the same. Suraj was given Rs. 100/- by his mother-in-law and thereafter, he went outside to drink. Thereafter, he returned at about 10:30 P.M. and was adamant to return to his house and at about 11-11:30 P.M., Suraj returned to his house alone.

At about 1:30 A.M. on 29th July 2013, Sunil (PW-5) testified that Suraj returned to the said premises along with his brother Respondent No. 2/Ajay (hereinafter'Ajay') and his sister Laxmi, who was a juvenile at the time and insisted on taking Chanda back to their residence and started quarrelling. He further testified that upon hearing noises of the quarrel, the neighbours residing at the lower floor of their residence, namely, Smt. Vidya w/o Vijay Kumar and her kids, namely, Akash and Ankit, came out from their residence and Smt. Vidya asked the Respondents not to abuse and quarrel. This annoyed the Respondents and the Respondent Ajay and his sister, Laxmi caught hold of Akash and Respondent Suraj took out a vegetable knife, which he was carrying and stabbed the abdomen of Akash and when Vidya tried to rescue her son, Respondent Suraj stabbed her also and thereafter, when Laxmi tried to intervene in the scuffle, she also received injuries on her mouth. Sunil (PW5) further deposed that both the Respondents had also assaulted them with kicks and fists and in the meantime Sunil's (PW-5) another neighbour, Abhishek made a call at 100 number. The PCR came and both were handed over to the PCR Official. Meanwhile, Akash was taken to hospital by Ankit (PW-1) using a borrowed scooter and Vidya went on foot to the nearby hospital and thereafter after receiving first aid, they were shifted to Deen Dayal Upadhyay Hospital, New Delhi (hereinafter 'DDU Hospital'). Meanwhile, Sunil along with his daughter Chanda and his wife went to the police station and narrated the facts to the police official present there.

On the basis of the statement of Ankit Kumar (PW-1) recorded at the hospital, a rukka was prepared and the present FIR was registered. The investigation was initially conducted by SI Mukesh Rana (PW-13) and later taken over by Inspector Rajesh Kumar. The site-plan was also prepared by Rajesh Kumar (PW-16) at the instance of Ankit Kumar (PW-1).

During the course of trial, the Prosecution examined 17 witnesses to establish its case. The same has been reproduced hereinbelow:

"Toprove and substantiate its case the prosecution examined 17 witnesses namely PW1 Ankit Kumar - eye witness; PW2 Akash Kumar - another eye witness; PW3 Vidya - victim; PW4 HC Vijay Singh - duty officer; PW5 Sunil Prasad - eye witness of the incident; PW6 HC Radha Krishan - formal witness being MHC(M) at PS Naraina; PW7 Dr. Ajay Sharma, Medical Officer, DDU hospital; PW8 Phoolo Devi - [mother in law of accused Suraj] - another eye witness; PW9 Ms. Chanda - wife of accused Suraj [she turned hostile]; PW10 Dr Abhishek Gupta, Sr. Resident Surgery, DDU hospital; PW11 HC Vikram Singh - duty officer from 8 p.m. to 8 a.m. on intervening night of 28/29.07.2013; PW12 SI Ami Chand - formal witness he had taken injured persons to the hospital on receipt of DD no.6A and 7A; PW13 SI Mukesh Rana - initial IO of the case; PW13 Dr. Abhishek - he gave the report on x-ray of Vidya; PW15 Ct. Ram Raj - he joined in the investigation with IO; PW16 Ins. Rajesh Kumar - 2nd IO Of the case; and PW17 Ms. Monika Chakravarty, Sr. Scientific Asstt. FSL, - formal witness.

During investigation, both the Respondents Suraj and Ajay were arrested on 29th July, 2013 vide their arrest and personal search memos Ex.PW15/B, Ex.PW15/C, Ex.PW15/B-1 and Ex.PW15/C-1 respectively. Their disclosure statement were recorded vide Ex.PW15/B-2 and Ex.PW15/C-2 respectively. The third accused Lakshmi was found to be Juvenile in conflict with law and accordingly ASI Manju was called from the Police Station, and she carried out necessary proceedings against JCL Lakshmi. It was found that the clothes which Respondent Suraj was wearing were blood stained and were taken into possession by Ct. Ram Raj. Ct. Ram Raj (PW-15) also took the blood stained clothes of JCL Laxmi into possession with the assistance of Lady Ct. Komal. Separate proceedings qua JCL Lakshmi were carried out which are not being repeated herein for the sake of brevity. Thereafter, both the Respondents were produced in the court and one day Police Custody remand was obtained for Respondent Suraj.

On 7th October, 2013 the Exhibits were deposited in FSL Rohini and the opinions pertaining to the nature of injuries on the MLC of Akash and Vidya Devi were obtained. The MLC report of the victims, clearly opined that the injuries sustained by Vidya were "grievous" in nature, whereas those sustained by Akash were "dangerous". The relevant portions of MLCs Ex. PW10/A and Ex. PW10/B of both the victims is reproduced hereinbelow for ease of reference:

MLC Ex. PW10/A of Vidya:

"Asper MLC

Pt admitted in xxx 202â†"Dr. A K Mongia unit

for further management

Nature of injury -grevious"

MLC Ex. PW10/B of Akash

"Asper MLC

Pt admitted in xxx 202â†"Dr. A K Mongia unit

for further management

Nature of injury- dangerous"

(emphasis supplied)

The MLCs of the victims was supported by the deposition of Dr. Abhishek Gupta (PW-10), Sr. Resident Surgery, DDU hospital. The ld. Trial Court has discussed it as under: -

"13. PW10 Dr. Abhishek Gupta had identified the handwriting and signatures of Dr. Anupam, who had examined Vidya and Akash on dated 29.07.2013. As per MLCs Ex.PW10/A and Ex.PW10/B the opinion as to the nature of injuries sustained by Vidya is grievous and the nature of injuries as per the MLC of Akash is dangerous."

The MLCs of victims was further supported by the deposition of Dr. Ajay Sharma (PW-7), Medical Officer, DDU Hospital. The ld. Trial Court has discussed it as under: -

"10. PW7 Dr. Ajay Sharma, had identified the handwriting and signature of Dr. Anurag, who had examined Vidya brought to the hospital with alleged history of physical assault and observed a stab wound present over left side of chest lower aspect and was referred to surgery emergency after giving first aid. As per the MLC Ex.PW 7/A the patient had suffered from sharp injuries. He further identified the signatures and handwriting of Dr. Sana Khanam, who had examined Akash, who was brought to the hospital with alleged history of physical assault and he observed a stab wound present over just below umbilicus and right side of back flank about hip joined and the patient was referred to surgery emergency after giving first aid. As per MLC Ex.PW7/B the patient has suffered from sharp injuries. PW 7 Dr. Ajay Sharma, had also identified the handwriting and signature of Dr. Anurag, who had examined one Ajay who was brought to the hospital with alleged history of physical assault. As per MLC there was a CLW right parital region and the patient was discharged after giving first aid. As per the MLC Ex.PW7/C the patient suffered from simple blunt injuries."

Both the Respondents had also sustained injuries during the quarrel, and they were also medically examined in DDU Hospital. Charges were framed by the Trial Court vide order on charge dated 9th January, 2014, under Sections 307/34 IPC.

After recording the prosecution evidence, statements of the Respondents were recorded under Section 313 Cr.P.C., wherein they pleaded innocence and stated that they have been falsely implicated. They did not lead any evidence in their defence.

After considering the evidence on record, the ld. Trial Court held that the Prosecution had successfully proved its case beyond reasonable doubt and converted the conviction of the Respondents under Sections 308/34 IPC and released the Respondents on probation of good conduct and directed the Respondents to furnish personal bond in the sum of Rs. l0,000/- each with one surety in the like amount for 3 years subject to the condition that Respondent Suraj shall pay Rs. l0,000/- and Respondent Ajay shall pay Rs.5000/- as compensation, which is to be paid to the victims.

Submissions on Behalf of the Appellant/State

Mr. Ashmeet Singh, ld. APP appearing for the State has vehemently submitted that the charge under Sections 307/34 IPC, as originally framed, stood fully proved beyond reasonable doubt. It is submitted that the Prosecution case rests on cogent, unequivocal, consistent, and reliable testimonies of material witnesses, namely Ankit Kumar (PW-1), Akash Kumar (PW-2) (injured witness), Vidya (PW-3) (injured witness), Sunil Prasad (PW-5), and Phoolo Devi (PW-8). The said witnesses have identified the Respondents in Court as the perpetrators who inflicted knife injuries upon the victims during the incident in question.

He submits that the ld. Trial Court errored in holding that, since Suraj was under the influence of liquor at the relevant time, the said Respondent neither harboured the requisite intention nor could knowledge be attributed to him that the injuries were likely to cause the victim's death. Intention, being a non-corporeal faculty of the mind of the Respondent, is to be gathered from the facts and circumstances, the Respondent having returned to his wife's parental home at 1:30 A.M. in the night, by premeditation carrying a knife, and the situs and multiplicity of injuries on vital parts of the body, establish the requisite intention to commit murder. Without prejudice, Respondent Suraj is, at the very least, attributable with knowledge that inflicting multiple stab injuries on vital parts was likely to cause death. He further submits that the ld. Court erred in holding that Respondent Suraj, being under the influence of liquor, was not in a sound state of his senses, there being no material on record in support thereof. He submits that as per law, a person acting in a state of intoxication shall be dealt with as though he possessed the same knowledge as he would have possessed had he not been intoxicated, unless such intoxication was without his knowledge or against his will, which circumstance is wholly absent in the present case. The ld. Trial Court, thus errored in extending the benefit of intoxication to the Respondent on this count.

Mr. Ashmeet Singh, places strong reliance upon the medical evidence on record. He submits that the MLC report of the victims, clearly opined that the injuries sustained by Vidya were "grievous" in nature, whereas those sustained by Akash were "dangerous". It is submitted that the situs of the injuries and their number were not considered by the ld. Trial court in the correct perspective while assessing what offence was made out in the facts of the present case.

He further submits that the sentence awarded to the Respondents even under Section 308 IPC was too lenient and wholly not in proportion with the gravity and magnitude of the offence. The release of the convicts on probation of good conduct is a wholly inadequate and inappropriate exercise of discretion. The considerations weighed by the ld. Trial Court in awarding a lighter sentence were not relevant to the question of sentencing. He further submits that it is settled law that the sentence must be in proportion with the gravity of the offence, which manifestly was not in the present case. No adequate consideration was accorded to the perspective of the injured victim, and the aspect of grant of compensation under Section 357 Cr.P.C. has not been considered in its correct perspective or with the adequacy that the provision demands.

Submissions on behalf of the Respondents

Per Contra, Ms. Anu Narula, ld. Counsel for the Respondents, submits that the incident dated 29th July 2013 arose out of a domestic dispute at the parents' home of Respondent No.1'swife, which escalated into a sudden scuffle involving the wife's parents, their neighbours and the Respondents. She further submits that the incident was not pre-planned and there was no prior animosity between the parties, and that the victims had intervened in the dispute. She further submits that there was no intention on the part of the Respondents to inflict injuries, and the incident occurred in the heat of the moment.

Further, Ms. Narula submits that Respondent No.1, Suraj, has undergone nine months of incarceration, whereas Respondent No. 2, Ajay, remained in judicial custody for about twelve days during the Trial, and that the Respondents have already been subjected to detention and punishment to a certain extent.

Analysis and Findings

The Court has heard the parties and considered the matter.

This Appeal raises an issue as to whether the conviction of the Respondents under Sections 308/34, IPC, and their subsequent release on probation by the ld. Trial Court is valid or not.

Before going into the merits of the Appeal, it is necessary to set out the statutory provisions which are to be considered. Sections 307 IPC and 308 IPC read as under:

"307. Attempt to murder.-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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1 [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempt to commit culpable homicide.-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."

Sections 307 and 308 IPC are similar in the sense that both require presence of intention or knowledge and consideration of the consequence had the death ensued. The difference lies in the nature of the offence that would follow.

Under Section 307 IPC, the act must be such as would amount to murder under Section 300 IPC. Whereas under Section 308 IPC, it would fall short of murder by reason of circumstances which bring the case within the exceptions to Section 300 IPC. The determination depends upon the surrounding circumstances, including whether the act was premeditated or had occurred during a sudden quarrel, the nature of the weapon used, the part of the body targeted, the number of injuries inflicted and the manner in which the assault took place.

In the present case, the incident arose out of a sudden dispute between Respondent No. 1 and his in-laws. There is no material on record to indicate any prior enmity between the Respondents and the victims, namely Akash (PW-2) and Vidya (PW-3). On the contrary, the evidence indicates that the said victims were neighbours who had intervened only to pacify the situation. Their presence at the spot was thus incidental and not pursuant to any pre-existing animosity or planning.

It is also not in dispute that Respondent Suraj was under the influence of liquor at the time of the incident. While intoxication is no defence in law, it is a relevant circumstance in assessing whether the act was premeditated or had occurred in the course of a sudden altercation. Section 86 IPC attributes knowledge notwithstanding intoxication, however, intention must be gathered from the surrounding facts and circumstances. In the facts of the present case, the conduct of Respondent Suraj appears to be a result of a sudden escalation of a domestic dispute rather than a deliberate or planned act. This distinction is well-supported by the Supreme Court's reasoning in Tukaram Gundu Naik v. State of Maharashtra, (1994) 1 SCC 465. The relevant portion of the same is reproduced hereinbelow for ease of reference:

"7....Nodoubt this witness was treated hostile but his evidence would show that it was dark and there was a scuffle. Further, the doctor's evidence would show that none of the vital organs was injured. Under these circumstances, a doubt arises whether the accused intended to commit murder and thus made an attempt. In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under Section 308 IPC. Section 308 lays down that such an offence is punishable with imprisonment which may extend to three years or with fine or with both and if hurt is caused, the assailant can be punished with imprisonment of either description which may extend to seven years or with fine or with both.

Having given our earnest consideration and having regard to the age of the appellant and the suddenness in which the whole occurrence took place during the scuffle, we are of the view that the offence is one punishable under Section 308 IPC. Accordingly, we set aside the conviction of the appellant under Section 307 IPC and sentence of five years' RI awarded thereunder. Instead we convict him under Section 308 IPC and sentence him to undergo 1 1/2 years' RI and to pay a fine of Rs 1000 in default of payment of which to undergo further RI for three months. Accordingly the appeal is partly allowed. The appellant, who is on bail, shall surrender and serve out the remaining period of sentence, if any."

(emphasis supplied)

Respondent Suraj does not appear to be a dangerous or hardened criminal but rather a person who acted under provocation during a sudden quarrel. He was clearly swayed by emotions as he wanted his wife to accompany him back to the matrimonial home-even in the middle of the night. The parents of the wife suggested that she can go in the morning, and this triggered the entire incident. The Supreme Court in Hari Kishan and State of Haryana v. Sukhbir Singh, (1988) 4 SCC 551 has observed that where offenders are not habitual criminals and the occurrence is the result of a sudden flare up, the benefit of probation may be extended. The relevant portion of the same is reproduced hereinbelow for ease of reference:

"8....Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the court encourages their own sense of responsibility for their future and protects them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate."

The weapon used in the present case to commit the offence was a vegetable cutting knife. There is no material on record to show that the same was carried with any pre-planned intent to cause fatal injuries. The incident occurred during a sudden scuffle when the neighbours intervened. There is nothing on record to suggest that the Respondents had any intention to cause the death of the victims or they had taken undue advantage of the situation. Though the injuries have been described as grievous and dangerous by Dr. Abhishek Gupta (PW-10), such medical opinion, while relevant, is not conclusive of the intention or knowledge required under Section 307 IPC. The intention has to be gathered from the totality of circumstances, including the manner of assault and the surrounding facts.

Having regard to the material on record, this Court concurs with the finding of the ld. Trial Court that the ingredients of Section 307 IPC have not been established beyond reasonable doubt. The act in question, having occurred in the course of a sudden domestic altercation, without premeditation, and without any prior enmity, would more appropriately fall within the ambit of Sections 308/34 IPC. The view taken by the ld. Trial Court is a plausible view based on appreciation of evidence and does not suffer from any perversity or illegality warranting interference. Accordingly, the conviction of the Respondents under Sections 308/34 IPC is upheld.

On the question of sentence, it is noted that Respondent No. 1 Suraj has undergone about nine months of incarceration, whereas Respondent No. 2 Ajay remained in judicial custody for a limited duration, about twelve days, during the Trial. The incident arose out of a domestic dispute and no prior criminal antecedents have been brought on record. The ld. Trial Court has also directed payment of compensation to the victims, i.e., the Respondent Suraj shall pay Rs. 10,000/- and Respondent Ajay shall pay Rs. 5000/-, which has already been deposited by the Respondents. The object of the Probation of Offenders Act, 1958 is to promote reformation and rehabilitation of offenders who are not hardened criminals. The same has been reiterated by the Supreme court in Lakhvir Singh v. State of Punjab, (2021) 2 SCC 763. The relevant portion of the same is reproduced hereinbelow for ease of reference:

"6. We may notice that the Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved."

The sentence as awarded has already been undergone by the Respondents and does not warrant interference.

Conclusion

In view of the above discussion, the impugned judgment of conviction and order of sentence is hereby upheld and the Appeal is dismissed.

The directions regarding payment of compensation to the victims shall remain in force.

The Personal Bonds and Surety Bonds of the Respondents are cancelled.

Pending applications, if any, are also disposed of.