Vijay Singh vs State

Mukta Gupta, J.

1 By this appeal the Appellant lays challenge to the judgment convicting him for an offence punishable u/s 307 IPC and a sentence of Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 200 and in default of payment of fine to further undergo RI for 15 days.

2 Briefly the prosecution case is that the Appellant owed Rs. 3,000 to one Shiv Shankar PW4 and on 11th March, 1998 he along with the Appellant went to the room of Uncle of the Appellant near Patparganj where they were served food. Thereafter, the said Uncle of the Appellant along with his brother-in-law went away for their duty. When PW4 Shiv Shanker asked Vijay Singh to return his Rs. 3,000/- which he had given to him earlier, Vijay Singh asked him to wait till his Uncle returns back. At about 12.00 noon when the Appellant told Vijay Singh that he had to go back to his house and again demanded his money, the Appellant asked him to stop and took out the knife from the pocket of his pant and gave 10-12 knife blows on the stomach, chest, back and arm of PW4 Shiv Shanker. PW4 fell down and after some time the police arrived and took him to the hospital. When the Appellant gave knife blows on the person of PW 4, he was only wearing an angocha (towel) tied around his waist. As the injured was not fit for statement, his statement could not be recorded. The FIR was registered on the statement of PW 2 Subhash. On completion of investigation, the charge sheet was filed. All the prosecution witnesses, except PW2 who is the complainant, supported the prosecution case. On consideration of the statements of the prosecution witnesses, statement of the Appellant u/s 313 Code of Criminal Procedure and his defence evidence, the learned Trial Court convicted the Appellant as above.

Learned Counsel for the Appellant challenging the conviction contends that PW4 was injured on 11th March, 1998 and discharged on 6th April, 1998, and despite the X-ray being conducted no X-ray report was filed by the prosecution and thus, an adverse inference should be drawn. There was no opinion of the Doctor that the injuries were fatal. As per the MLC, the injuries have been opined to be dangerous and thus, at best the same would be an offence either u/s 324 or 326 IPC. The prosecution case has not been supported by the only alleged eye witness on whose statement the FIR was registered. Despite being a populated area, no independent witness was examined. The PCR reached at the spot and the Appellant was allegedly apprehended on the spot. This conduct of the Appellant is inconsistent with his guilt. There are variations in the testimony of the witnesses as to the place of recovery of the weapon of offence. As per PW14 HC Bodan Lal, he had apprehended the Appellant along with the knife while fleeing from the spot. Whereas PW 12 HC Ram Charan and PW 15 Inspector Deshbandhu state that when they brought the Appellant to the spot, the Appellant disclosed that the knife was concealed beneath the gadda and got the same recovered. The defence version has not been considered by the learned Trial Court as though the prosecution case is that the Appellant owed Rs. 3,000/- however, in fact it was Appellant who was to take the money from PW 4 Shiv Shanker. Despite the Appellant being not unfit to make the statement his statement was recorded on the next day. Even the call made to the PCR was that a fight was going on and thus the prosecution case is unreliable and the Appellant is entitled to be acquitted.

Per contra learned APP for the State contends that the testimony of PW4 Shiv Shankar, the injured is sufficient to prove the case of the prosecution beyond reasonable doubt against the Appellant. This witness has categorically stated about the incident and soon after the incident he was admitted in a serious condition for nearly 25 days in the hospital. The Appellant was apprehended at the spot along with the blood stained knife. As per the CFSL report Ex. PW 15/C, the blood stains on the knife are of human original of ''A'' Group and the same tallied with the blood group of the injured. The Appellant in his statement u/s 313 Code of Criminal Procedure has admitted that there was a scuffle at the spot and thus he admits his presence at the spot. He was apprehended immediately thereafter on the spot. The version that the injuries on PW 4 were as a result of falling down on the broken glass pieces is an afterthought as no such suggestion has been given to the witness. Relying on Sunil Kumar v. State of NCT of Delhi 1999 (1) JCC (SC) 92,it is contended that for an offence punishable u/s 307 IPC the intention and knowledge of the accused has to be looked into and whether an injury is caused in the process is immaterial.

I have heard learned Counsel for the parties and perused the records. PW 4 Shiv Shankar is an injured witness. In his testimony he has stated that he along with Vijay Singh went to the room of his Uncle where they were offered food and thereafter the Uncle of Vijay Singh along with his brother-in-law went away for their duty. When PW 4 asked Vijay Singh to pay back his Rs. 3,000/- he asked him to wait till his Uncle comes back. Since PW4 was in a hurry and wanted to go back to his home, he asked for his payment on which Vijay Singh asked him to stop saying that he will pay him the money and took out a knife from the pocket of his pant and inflicted 10-12 knife blows on the stomach, chest, back and left arm of PW4, after which he fell unconscious. The testimony of this witness is duly corroborated by his MLC Exhibit PW3/A which shows the following injuries on the body:

Stab wound of 3" transversely placed over the epigastric region of abdomen towards the Le sub costal region.

A wound over the upper abdomen from wound intra abdominal viscera (on teotiur; pentoneam etc.) propping out.

A CIW of 5" x meesele drop over the back of Left side of chest.

Stab wound of 1" over the upp part of Rt. Chest anterior aspect.

As per PW9 Dr. A.K. Kulshreshtha, the injuries were dangerous in nature and caused by sharp weapon. PW 9 has not been cross-examined by the Appellant and thus, his testimony has gone unchallenged. A perusal of the injuries shows that they have been caused by sharp weapon on vital parts of the body.

I do not find any merit in the contention that the X-ray of PW 9 was held back and thus, an adverse inference should be drawn against the prosecution. Exhibit PW 9/A clearly notes that the X-ray of the injured could not be done though advised, as the patient was in a serious condition and thus, he was taken to the operation theatre directly.

In the present case the testimony of PW 4, the injured is further corroborated by the testimony of PW12 HC Ram Charan who was posted at PS Trilok Puri and had reached on receipt of DD No. 27B where he was told by one Subhash that on the first floor of the house ''Chaku chal rahe hai'' and that he had telephoned the police. Along with him, the PCR van also reached and they both opened the kundi of the door of the stairs and reached upstairs where the Appellant was present and his clothes and hands were blood stained. He tried to run away but was caught by them. The Appellant disclosed that Shiv Shankar was in room No. 3 and took them to room No. 3 where PW4 was lying in an injured condition while holding his stomach by his hand on a Takht. The clothes of the Appellant, that is, the shirt and the pant and the knife were sent to the CFSL and as per the report Ex. PW15/C human blood of ''A'' group was detected on them which tallied with that of the injured.

In Akhtar and Others Vs. State of Uttaranchal, their Lordships'' held that credence to the testimony of injured eyewitness is to be given since his presence at the scene of crime is seldom doubtful. The report reads:

In Krishan v. State of Haryana (2006) 12 SCC 459 this Court has taken the view that if the prosecution case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded.

Similarly, in Surender Singh Vs. State of Haryana, this Court has opined that:

The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes.

In view of the overwhelming evidence on record and the fact that the intention of the Appellant to cause injuries which if death would have been caused, he would be guilty of murder, was evident from the fact that the injuries were caused with a sharp weapon on the vital parts of the body, the prosecution has proved its case beyond reasonable doubt. Thus, the conviction of the Appellant for offence punishable u/s 307 IPC by the learned Trial Court is fully justified. As regards the quantum of sentence, the Appellant has undergone two months and 20 days. The Appellant has been awarded a sentence of Rigorous Imprisonment for a period of five years and a fine of Rs. 200/- and in default of payment of fine further Rigorous Imprisonment for 15 days. I find no ground to interfere with the same.

The appeal is, accordingly, dismissed. The bail bond and the surety bond are cancelled. The Appellant be taken into custody to undergo the remaining sentence.