Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : July 04, 2017
+ CRL.A. 290/2002
DHARMENDER
..... Appellant
Through: Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh,
Mr.Shivankur Shukla, Advocates
versus
STATE
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
+ CRL.A. 331/2002
MANOJ
..... Appellant
Through: Mr. R.S. Malik, Mr. Kapil Dahiya Mr.
Sahil Malik, Advocates
versus
THE STATE (NCT OF DELHI)
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
+ CRL.A. 342/2002
KAMLESH YADAV
..... Appellant
Through: Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh,
Mr.Shivankur Shukla, Advocates
versus
STATE
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 1 of 12
+ CRL.A. 436/2002
SHIV PRASAD @ BHOLU & ORS.
..... Appellant
Through: Mr. R.S. Malik, Mr. Kapil Dahiya Mr.
Sahil Malik, Advocates
versus
THE STATE (NCT OF DELHI)
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J
1. The present four appeals have been filed assailing the judgment
dated 22.03.2002 vide which the appellants-Dharmender, Manoj,
Kamlesh Yadav, Shiv Prasad @ Bholu, Shiv Bachan and Lal Bachan
have been convicted under Section 307/34 IPC and sentenced vide
order on sentence dated 27.03.2002. Therefore, all these appeals are
being 6decided together.
2. The above captioned four appeals arise out of a common
judgment dated 22.03.2002 passed by learned Additional Sessions
Judge whereby the appellants have been held guilty for the offence
punishable under Section 307/34 of Indian Penal Code (hereinafter
referred to as I.P.C.) and vide order on sentence dated 27.03.2002, the
appellants have been sentenced to undergo rigorous imprisonment for
a period of five years each and fine of Rs.5,000/- each for the offence
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 2 of 12
under Section 307/34 of IPC and in default of payment of fine they
were further sentenced to undergo rigorous imprisonment for three
months.
3. The facts as emerging from the impugned judgment are that on
12.10.1996, an information was received at Police Station that one
person had been stabbed on which ASI Partap Singh went to the spot
and started investigation of this case. During investigation, the
evidence was collected that all the accused persons alongwith
complainant Roshan Lal had gone to play cricket at Surajmal Stadium
where the accused persons started abusing the complainant. When it
was objected to by the complainant he was stabbed by the accused
persons, as a result of which he received injuries.
4. To prove the charges against the appellant, the prosecution
examined 19 witnesses. They are; Roshan Lal (PW-1); Prahlad (PW-
2); Parmod Kumar (PW-3); Naresh Kumar (PW-4); Constable Pawan
Kumar (PW-5); Dr. A. Bhasin, Radiologist (PW-6); Dr. K.K. Kumra
(PW-7); Constable Surinder Kumar (PW-8), Rajinder Singh (PW-9);
Constable Jai Pal Singh (PW-10); Parvinder Singh, Photographer
(PW-11); Sub-Inspector Ajit Singh (PW-12); Dr. K.K. Kamra (PW-
13); Mr. Karamjogi (PW-14); Head Constable Munshi Lal (PW-15);
Constable Silandera Singh (PW-16); Sub-Inspector Jarnail Singh
(PW-17); ASI Pratap Singh (PW-18); and Constable Tara Chand (PW-
19).
5. After examination of the prosecution evidence the statement of
accused persons under Section 313 Cr.P.C. were recorded wherein all
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 3 of 12
the appellants claimed to be innocent. However, they did not produce
any evidence in their defence.
6. Upon considering the facts, evidence led and the material on
record, the learned Additional Sessions Judge held the appellants
guilty for offence punishable under Sections 307/34 of IPC by
impugned judgment dated 22.03.2002, and vide order on sentence
dated 27.03.2002 the appellants were sentenced as indicated above.
Hence, the appellants have filed the instant appeal against the
impugned judgment and order on sentence passed by learned
Additional Sessions Judge. During pendency of the present appeal, the
sentence imposed upon the appellants was suspended.
7. The main grounds of challenge are that no independent witness
supported the allegations that the appellants had caught hold of the
complainant and then he was attacked with knives and hockey. There
was no common intention between the appellants for making an
attempt to commit the murder of the complainant. There was no
dispute between the complainant and accused persons prior to the
incident. Independent witnesses Pramod Kumar (PW3) and Naresh
Kumar (PW4) did not support the case of prosecution or the version of
the complainant. There is no sufficient evidence on record to convict
the appellants. It has been submitted that the knives were never
recovered and the recovery shown is the planted one. It was further
submitted that the father of the complainant had not been made a
witness by the prosecution. There is no opinion of the doctor with
regard to use of recovered knife. It was further submitted that the
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 4 of 12
doctor who had given the opinion had not been examined to prove his
opinion.
8. Per contra, argument advanced by learned Additional Public
Prosecutor for the State was that the appellants were rightly held the
guilty under Section 307/34 of the IPC inasmuch as the appellants
with their common intention caused knife injuries on the person of the
complainant/injured and the injured had duly supported the case of
prosecution. It was further submitted that the medical evidence in the
form of MLC of the injured had further corroborated the case of the
prosecution that he received dangereous injuries. The prosecution has
successfully proven the offence of the appellants beyond all
reasonable doubts and in such circumstances, the impugned judgment
and order on sentence passed by learned Additional Sessions Judge do
not call for any interference and the same are liable to be upheld.
9. I have heard the submissions made on behalf of the State and
gone through the appeals, impugned judgment and order on sentence
and the material available on record. To test the impugned judgment
and order on sentence on the touchstone of the evidence led by
prosecution, let the statement of material witnesses be scrutinized first.
10. The impugned judgment is based on the statement of the main
witness, i.e., complainant Roshan Lal (PW-1). He deposed before the
court that on 08.10.1996, it was Sunday and he was present at his
house. Lal Bachan, Shiv Bachan, Kamlesh came to his house and
invited him to play cricket. He went to Suraj Mal Stadium with those
persons where he met Bholu, Dharmender and Manoj. He further
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 5 of 12
deposed that they reached the Stadium at 3.30 PM. He was asked to
pick the wickets and he fixed the three wickets. All the accused started
accusing him as to why he had fixed the wickets on which he stated
that all of them had suggested to do so. Thereafter they started abusing
him. When he asked as to why they were abusing him, Lal Bachan,
Shiv Bachan and Kamlesh stated that they will teach him a lesson.
Thereafter, all the three persons, armed with knives, stabbed him with
their respective knives. He further deposed that the accused Bholu and
Dharmender caught hold of his hands and Manoj hit him with a
hockey. Thereafter, all the accused ran away by jumping the stadium
wall. It is further deposed that Pramod and Naresh were also present
in stadium. His father came there and took him to the hospital. His
statement was recorded by the police on 08.10.1996. He became
unconscious as a result of the multiple injuries he received. The
clothes worn by him were taken into possession by the hospital and
handed over to the police. In his re-examination he deposed that
Kamlesh was the first person who stabbed him, thereafter Shiv Bachan
and Lal Bachan stabbed him and at that time Bholu and Dharminder
caught hold of his hands. It is further deposed that there was no
dispute between him and any of the accused persons prior to the said
incident. In his cross-examination, he deposed that there was no
enmity between him and any of the accused persons in the past.
11. Pramod Kumar (PW-3) deposed in his statement that on
06.10.1996 he was in Suraj Mal Stadium at about 2.30 to 3.00 PM,
where a number of boys were playing in the stadium. He did not see
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 6 of 12
the person who actually assaulted the injured but he saw the injured.
The injured Roshan was taken near the gate of the stadium where after
some time his family members came and took him to the hospital.
12. PW3 Pramod Kumar was declared hostile and was cross-
examined by the learned APP for the State. During his cross-
examination, he stated that he knows all the six accused persons
because they all were living in the same locality. He stated that he did
not give any statement to the police. He denied that accused Lal
Bachan, Shiv Bachan and Kamlesh assaulted Roshan Lal with knife
and chhuries in his presence and Manohar had beaten Roshan Lal with
hockey or that accused Dharmender and Bholu caught hold of Roshan
Lal. He further stated that he had seen the accused running but he did
not see any knife or any object with any of the accused. He further
stated that he did not see knife in the hands of any of the accused or
any hockey with any of the accused.
13. Naresh Kumar (PW-4) is the other independent witness. He had
deposed that on 06.10.1996, he was at Suraj Mal Stadium to play
cricket. The accused persons also came to play cricket. Roshan was
also there in the stadium. This witness was in the visitor gallery side
and he saw the accused persons quarrelling with Roshan. He went to
the house of Roshan to call his family members. He deposed that one
of the accused assaulted Roshan with the wickets. When he returned
from the house of Roshan, he found him lying outside the Stadium and
he was bleeding. His father took him to the hospital. Police came to
the stadium but police did not record his statement.
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 7 of 12
14. PW4- Naresh Kumar was declared hostile and during his cross-
examination by the learned APP, he deposed that none of the accused
persons assaulted the injured with any knife or hockey stick in his
presence.
15. Dr. K.K.Kamra, CMO, DDU Hospital (PW-7) had deposed that
on 06.10.1996, he was on supervisory duty as CMO, when the patient
named Roshan was brought to casualty of the hospital at about 4.20
PM with alleged history of assault. The MLC Ex.PW7/A was prepared
by Dr. Archana Mishra. He further deposed that the final opinion
given by the Dr. Mukesh, Sr. Resident Surgery as being dangerous
and caused by sharp edged weapon. Since both the doctors have left
the services of the hospital, he identified the hand writing and
signatures of both the doctors having seen them during the course of
the duty.
16. Sub-Inspector Ajit Singh (PW-12) deposed before the court that
on 09.10.1996, he was posted at Police Station Nangloi and he had
conducted the investigation of this case. He had stated that PW Ram
Bachan stated that he has brought his brother to surrender before the
police and they were surrendered in a taxi stand and at his instance
three accused Manoj, Lal Bachan and Shiv Bachan were arrested.
Their search memos were prepared and they were interrogated and
their disclosure statement was recorded. Thereafter they came to the
Suraj Mal Stadium where at the instance of Lal Bachan from near the
bushes of cremation ground near the stadium one Chhura was
recovered, sketch for the place of recovery was also prepared. In his
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 8 of 12
cross-examination he deposed that only Prahlad met them at New
Delhi Station and he came with them in the bus alongwith the accused
to the stadium. He further deposed about the length of the knife being
of 13.6 cm., having blade of 8.8 cm.
17. PW-19 Constable Tara Chand deposed before the court that on
12.10.1996, he was posted at Police Station Nangloi. On that day he
alongwith Constable Jaipal joined the investigation with Ajit singh
Sub-Inspector and went to New Delhi Railway Station towards Ajmeri
Gate where at the instance of Ram Bachan, they apprehended three
accused namely Shiv Bachan, Lal Bachan and Manoj. Their personal
searches were taken and they were interrogated and made their
disclosures. Thereafter all of them came to the place of occurrence and
accused lal Bachan got recovered chhura from cremation ground near
Surajmal Stadium for which sketch was prepared. The chhura was put
into parcel and sealed and seized vide memo Ex. PW-2/E. Sketch of
recovery memo was signed by him alongwith Constable Jaipal and
PW-Prahlad.
18. In the facts of the present case, the appellants have allegedly
caused injuries on the person of injured Roshan Lal with knives. Dr.
K.K. Kamra (PW-7) had proved the MLC of the injured as Ex.PW7/A
prepared by Dr.Archna Mishra. He also proved the opinion of
Dr.Mukesh regarding nature of injuries sustained by the injured as
dangerous caused by sharp edged weapon. Dr.K.K. Kamra (PW7) had
deposed that Dr.Archna Mishra and Dr.Mukesh had left the services of
the hospital. Herein, it would be relevant to discuss the case laws on
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 9 of 12
this point. In Amar Singh Singh v. State 1994 (29) DRJ relied upon
by the appellants, it was stated that since the doctor who found the
injuries on the victim to be of a grievous nature, never entered the
witness box and whose whereabouts were not known, the prosecution
could not take advantage of the opinion given by him on the nature of
injuries of the victim.
19. Morever, this court in the matter of Rajvir & anr. v. State
(Cr.A 630/1999 decided by this court on 04.01.2005) found that the
MLC of one of the two injured was proved by a person who did not
examine the said injured person and that the same was prepared by
another doctor. The said witness in that case had proved the MLC
being of a colleague and the court opined that the “ the witness has
obviously deposed callously and the learned Trial Judge too has been
negligent ”. The court thus did not place any reliance on the same.
20. In the case of Rajesh @ Vimal Kumar & Anr. v State (Del
Admn) 1995 JCC 148 the ground taken by the appellant was that the
doctor who had examined the injured and opined that the injuries were
dangerous in nature had not been examined. This court in that case
observed that, “ though the medico-legal report has been placed on
record, it was never thought of examining the doctor who had opined
that the injuries were dangerous in nature. Since that particular
opinion has not been proved through the doctor who gave it and since
we do not know on what basis he formed that opinion, and keeping
also in view the medico-legal report placed on record, I do not feel
that in the present case the conviction shall have to be only under
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 10 of 12
Section 324 read with Section 34 of the Indian Penal Code. The
appeal with regard to conviction is accepted to that extent.”
21. Resultantly, as per the ratio laid down in the judgments referred
to above and in the facts and circumstances of the present case it is
explicitly clear that it was for the prosecution to prove conclusively by
producing not only the medical record relating to the treatment given
to the injured but also by producing the doctor who had attended on
the injured and examined him with respect to the said injury being of
such a depth or of such a nature which could be opined as dangerous
or simple. In the present case though the injuries of the injured Roshan
Lal have been labeled as dangerous by Dr.Mukesh, the same have
neither been corroborated by him at a later stage during trial nor has
he given any reasons for forming the said opinion, inasmuch as he was
not produced as a witness by the prosecution. In the light of the same,
the opinion leveled by him cannot be taken into consideration.
22. As per the discussions made above and the facts and
circumstances of the present case, the prosecution cannot take
advantage of the opinion of the Doctor by which the injuries of the
injured Roshan Lal have been labeled as “dangerous”. And once this
position is accepted, the ground for convicting the appellants under
Section 307 is washed away.
23. From the evidence discussed above, it has been established on
record that all the appellants in furtherance of their common intention
had caused hurt to Jeet Pal and that too with a sharp edged object i.e.
knife and thus the acts of the appellants squarely fall under Section
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 11 of 12
324/34 IPC. Since the prosecution has failed to establish the offence
committed by the appellants under Section 307 IPC, their conviction is
liable to be converted into Section 324/34 IPC.
24. In view of the above observations, the appeal is partly allowed.
The conviction is converted from Section 307/34 of the Indian Penal
Code to one under Section 324/34 of the IPC.
25. The present matter is one of the occurrence of the year 1996;
charge against the appellants was framed on 25.05.1999; the judgment
of conviction was passed on 22.03.2002; order on sentence was passed
on 27.03.2002; the present appeals were preferred in the year 2002
and now we are in the year 2017. Apparently, the appellants have
faced the protracted trial for about 21 years.
26. In view of the above mentioned facts and circumstances of the
present case and in order to meet the ends of justice, the sentence of
the appellants is modified to undergo rigorous imprisonment for a
period of two years each and fine of Rs.10,000/- each for the offence
under Section 324/34 of IPC. In default of payment of fine they shall
further sentenced to undergo rigorous imprisonment for six months.
27. In view of the aforesaid, the present appeals filed by the
appellants is partly allowed to the extent indicate above and are
disposed of as such.
(P.S.TEJI)
JUDGE
JULY 04, 2017
pkb/dd
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 12 of 12
Judgment delivered on : July 04, 2017
+ CRL.A. 290/2002
DHARMENDER
..... Appellant
Through: Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh,
Mr.Shivankur Shukla, Advocates
versus
STATE
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
+ CRL.A. 331/2002
MANOJ
..... Appellant
Through: Mr. R.S. Malik, Mr. Kapil Dahiya Mr.
Sahil Malik, Advocates
versus
THE STATE (NCT OF DELHI)
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
+ CRL.A. 342/2002
KAMLESH YADAV
..... Appellant
Through: Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh,
Mr.Shivankur Shukla, Advocates
versus
STATE
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 1 of 12
+ CRL.A. 436/2002
SHIV PRASAD @ BHOLU & ORS.
..... Appellant
Through: Mr. R.S. Malik, Mr. Kapil Dahiya Mr.
Sahil Malik, Advocates
versus
THE STATE (NCT OF DELHI)
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J
1. The present four appeals have been filed assailing the judgment
dated 22.03.2002 vide which the appellants-Dharmender, Manoj,
Kamlesh Yadav, Shiv Prasad @ Bholu, Shiv Bachan and Lal Bachan
have been convicted under Section 307/34 IPC and sentenced vide
order on sentence dated 27.03.2002. Therefore, all these appeals are
being 6decided together.
2. The above captioned four appeals arise out of a common
judgment dated 22.03.2002 passed by learned Additional Sessions
Judge whereby the appellants have been held guilty for the offence
punishable under Section 307/34 of Indian Penal Code (hereinafter
referred to as I.P.C.) and vide order on sentence dated 27.03.2002, the
appellants have been sentenced to undergo rigorous imprisonment for
a period of five years each and fine of Rs.5,000/- each for the offence
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 2 of 12
under Section 307/34 of IPC and in default of payment of fine they
were further sentenced to undergo rigorous imprisonment for three
months.
3. The facts as emerging from the impugned judgment are that on
12.10.1996, an information was received at Police Station that one
person had been stabbed on which ASI Partap Singh went to the spot
and started investigation of this case. During investigation, the
evidence was collected that all the accused persons alongwith
complainant Roshan Lal had gone to play cricket at Surajmal Stadium
where the accused persons started abusing the complainant. When it
was objected to by the complainant he was stabbed by the accused
persons, as a result of which he received injuries.
4. To prove the charges against the appellant, the prosecution
examined 19 witnesses. They are; Roshan Lal (PW-1); Prahlad (PW-
2); Parmod Kumar (PW-3); Naresh Kumar (PW-4); Constable Pawan
Kumar (PW-5); Dr. A. Bhasin, Radiologist (PW-6); Dr. K.K. Kumra
(PW-7); Constable Surinder Kumar (PW-8), Rajinder Singh (PW-9);
Constable Jai Pal Singh (PW-10); Parvinder Singh, Photographer
(PW-11); Sub-Inspector Ajit Singh (PW-12); Dr. K.K. Kamra (PW-
13); Mr. Karamjogi (PW-14); Head Constable Munshi Lal (PW-15);
Constable Silandera Singh (PW-16); Sub-Inspector Jarnail Singh
(PW-17); ASI Pratap Singh (PW-18); and Constable Tara Chand (PW-
19).
5. After examination of the prosecution evidence the statement of
accused persons under Section 313 Cr.P.C. were recorded wherein all
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 3 of 12
the appellants claimed to be innocent. However, they did not produce
any evidence in their defence.
6. Upon considering the facts, evidence led and the material on
record, the learned Additional Sessions Judge held the appellants
guilty for offence punishable under Sections 307/34 of IPC by
impugned judgment dated 22.03.2002, and vide order on sentence
dated 27.03.2002 the appellants were sentenced as indicated above.
Hence, the appellants have filed the instant appeal against the
impugned judgment and order on sentence passed by learned
Additional Sessions Judge. During pendency of the present appeal, the
sentence imposed upon the appellants was suspended.
7. The main grounds of challenge are that no independent witness
supported the allegations that the appellants had caught hold of the
complainant and then he was attacked with knives and hockey. There
was no common intention between the appellants for making an
attempt to commit the murder of the complainant. There was no
dispute between the complainant and accused persons prior to the
incident. Independent witnesses Pramod Kumar (PW3) and Naresh
Kumar (PW4) did not support the case of prosecution or the version of
the complainant. There is no sufficient evidence on record to convict
the appellants. It has been submitted that the knives were never
recovered and the recovery shown is the planted one. It was further
submitted that the father of the complainant had not been made a
witness by the prosecution. There is no opinion of the doctor with
regard to use of recovered knife. It was further submitted that the
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 4 of 12
doctor who had given the opinion had not been examined to prove his
opinion.
8. Per contra, argument advanced by learned Additional Public
Prosecutor for the State was that the appellants were rightly held the
guilty under Section 307/34 of the IPC inasmuch as the appellants
with their common intention caused knife injuries on the person of the
complainant/injured and the injured had duly supported the case of
prosecution. It was further submitted that the medical evidence in the
form of MLC of the injured had further corroborated the case of the
prosecution that he received dangereous injuries. The prosecution has
successfully proven the offence of the appellants beyond all
reasonable doubts and in such circumstances, the impugned judgment
and order on sentence passed by learned Additional Sessions Judge do
not call for any interference and the same are liable to be upheld.
9. I have heard the submissions made on behalf of the State and
gone through the appeals, impugned judgment and order on sentence
and the material available on record. To test the impugned judgment
and order on sentence on the touchstone of the evidence led by
prosecution, let the statement of material witnesses be scrutinized first.
10. The impugned judgment is based on the statement of the main
witness, i.e., complainant Roshan Lal (PW-1). He deposed before the
court that on 08.10.1996, it was Sunday and he was present at his
house. Lal Bachan, Shiv Bachan, Kamlesh came to his house and
invited him to play cricket. He went to Suraj Mal Stadium with those
persons where he met Bholu, Dharmender and Manoj. He further
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 5 of 12
deposed that they reached the Stadium at 3.30 PM. He was asked to
pick the wickets and he fixed the three wickets. All the accused started
accusing him as to why he had fixed the wickets on which he stated
that all of them had suggested to do so. Thereafter they started abusing
him. When he asked as to why they were abusing him, Lal Bachan,
Shiv Bachan and Kamlesh stated that they will teach him a lesson.
Thereafter, all the three persons, armed with knives, stabbed him with
their respective knives. He further deposed that the accused Bholu and
Dharmender caught hold of his hands and Manoj hit him with a
hockey. Thereafter, all the accused ran away by jumping the stadium
wall. It is further deposed that Pramod and Naresh were also present
in stadium. His father came there and took him to the hospital. His
statement was recorded by the police on 08.10.1996. He became
unconscious as a result of the multiple injuries he received. The
clothes worn by him were taken into possession by the hospital and
handed over to the police. In his re-examination he deposed that
Kamlesh was the first person who stabbed him, thereafter Shiv Bachan
and Lal Bachan stabbed him and at that time Bholu and Dharminder
caught hold of his hands. It is further deposed that there was no
dispute between him and any of the accused persons prior to the said
incident. In his cross-examination, he deposed that there was no
enmity between him and any of the accused persons in the past.
11. Pramod Kumar (PW-3) deposed in his statement that on
06.10.1996 he was in Suraj Mal Stadium at about 2.30 to 3.00 PM,
where a number of boys were playing in the stadium. He did not see
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 6 of 12
the person who actually assaulted the injured but he saw the injured.
The injured Roshan was taken near the gate of the stadium where after
some time his family members came and took him to the hospital.
12. PW3 Pramod Kumar was declared hostile and was cross-
examined by the learned APP for the State. During his cross-
examination, he stated that he knows all the six accused persons
because they all were living in the same locality. He stated that he did
not give any statement to the police. He denied that accused Lal
Bachan, Shiv Bachan and Kamlesh assaulted Roshan Lal with knife
and chhuries in his presence and Manohar had beaten Roshan Lal with
hockey or that accused Dharmender and Bholu caught hold of Roshan
Lal. He further stated that he had seen the accused running but he did
not see any knife or any object with any of the accused. He further
stated that he did not see knife in the hands of any of the accused or
any hockey with any of the accused.
13. Naresh Kumar (PW-4) is the other independent witness. He had
deposed that on 06.10.1996, he was at Suraj Mal Stadium to play
cricket. The accused persons also came to play cricket. Roshan was
also there in the stadium. This witness was in the visitor gallery side
and he saw the accused persons quarrelling with Roshan. He went to
the house of Roshan to call his family members. He deposed that one
of the accused assaulted Roshan with the wickets. When he returned
from the house of Roshan, he found him lying outside the Stadium and
he was bleeding. His father took him to the hospital. Police came to
the stadium but police did not record his statement.
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 7 of 12
14. PW4- Naresh Kumar was declared hostile and during his cross-
examination by the learned APP, he deposed that none of the accused
persons assaulted the injured with any knife or hockey stick in his
presence.
15. Dr. K.K.Kamra, CMO, DDU Hospital (PW-7) had deposed that
on 06.10.1996, he was on supervisory duty as CMO, when the patient
named Roshan was brought to casualty of the hospital at about 4.20
PM with alleged history of assault. The MLC Ex.PW7/A was prepared
by Dr. Archana Mishra. He further deposed that the final opinion
given by the Dr. Mukesh, Sr. Resident Surgery as being dangerous
and caused by sharp edged weapon. Since both the doctors have left
the services of the hospital, he identified the hand writing and
signatures of both the doctors having seen them during the course of
the duty.
16. Sub-Inspector Ajit Singh (PW-12) deposed before the court that
on 09.10.1996, he was posted at Police Station Nangloi and he had
conducted the investigation of this case. He had stated that PW Ram
Bachan stated that he has brought his brother to surrender before the
police and they were surrendered in a taxi stand and at his instance
three accused Manoj, Lal Bachan and Shiv Bachan were arrested.
Their search memos were prepared and they were interrogated and
their disclosure statement was recorded. Thereafter they came to the
Suraj Mal Stadium where at the instance of Lal Bachan from near the
bushes of cremation ground near the stadium one Chhura was
recovered, sketch for the place of recovery was also prepared. In his
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 8 of 12
cross-examination he deposed that only Prahlad met them at New
Delhi Station and he came with them in the bus alongwith the accused
to the stadium. He further deposed about the length of the knife being
of 13.6 cm., having blade of 8.8 cm.
17. PW-19 Constable Tara Chand deposed before the court that on
12.10.1996, he was posted at Police Station Nangloi. On that day he
alongwith Constable Jaipal joined the investigation with Ajit singh
Sub-Inspector and went to New Delhi Railway Station towards Ajmeri
Gate where at the instance of Ram Bachan, they apprehended three
accused namely Shiv Bachan, Lal Bachan and Manoj. Their personal
searches were taken and they were interrogated and made their
disclosures. Thereafter all of them came to the place of occurrence and
accused lal Bachan got recovered chhura from cremation ground near
Surajmal Stadium for which sketch was prepared. The chhura was put
into parcel and sealed and seized vide memo Ex. PW-2/E. Sketch of
recovery memo was signed by him alongwith Constable Jaipal and
PW-Prahlad.
18. In the facts of the present case, the appellants have allegedly
caused injuries on the person of injured Roshan Lal with knives. Dr.
K.K. Kamra (PW-7) had proved the MLC of the injured as Ex.PW7/A
prepared by Dr.Archna Mishra. He also proved the opinion of
Dr.Mukesh regarding nature of injuries sustained by the injured as
dangerous caused by sharp edged weapon. Dr.K.K. Kamra (PW7) had
deposed that Dr.Archna Mishra and Dr.Mukesh had left the services of
the hospital. Herein, it would be relevant to discuss the case laws on
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 9 of 12
this point. In Amar Singh Singh v. State 1994 (29) DRJ relied upon
by the appellants, it was stated that since the doctor who found the
injuries on the victim to be of a grievous nature, never entered the
witness box and whose whereabouts were not known, the prosecution
could not take advantage of the opinion given by him on the nature of
injuries of the victim.
19. Morever, this court in the matter of Rajvir & anr. v. State
(Cr.A 630/1999 decided by this court on 04.01.2005) found that the
MLC of one of the two injured was proved by a person who did not
examine the said injured person and that the same was prepared by
another doctor. The said witness in that case had proved the MLC
being of a colleague and the court opined that the “ the witness has
obviously deposed callously and the learned Trial Judge too has been
negligent ”. The court thus did not place any reliance on the same.
20. In the case of Rajesh @ Vimal Kumar & Anr. v State (Del
Admn) 1995 JCC 148 the ground taken by the appellant was that the
doctor who had examined the injured and opined that the injuries were
dangerous in nature had not been examined. This court in that case
observed that, “ though the medico-legal report has been placed on
record, it was never thought of examining the doctor who had opined
that the injuries were dangerous in nature. Since that particular
opinion has not been proved through the doctor who gave it and since
we do not know on what basis he formed that opinion, and keeping
also in view the medico-legal report placed on record, I do not feel
that in the present case the conviction shall have to be only under
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 10 of 12
Section 324 read with Section 34 of the Indian Penal Code. The
appeal with regard to conviction is accepted to that extent.”
21. Resultantly, as per the ratio laid down in the judgments referred
to above and in the facts and circumstances of the present case it is
explicitly clear that it was for the prosecution to prove conclusively by
producing not only the medical record relating to the treatment given
to the injured but also by producing the doctor who had attended on
the injured and examined him with respect to the said injury being of
such a depth or of such a nature which could be opined as dangerous
or simple. In the present case though the injuries of the injured Roshan
Lal have been labeled as dangerous by Dr.Mukesh, the same have
neither been corroborated by him at a later stage during trial nor has
he given any reasons for forming the said opinion, inasmuch as he was
not produced as a witness by the prosecution. In the light of the same,
the opinion leveled by him cannot be taken into consideration.
22. As per the discussions made above and the facts and
circumstances of the present case, the prosecution cannot take
advantage of the opinion of the Doctor by which the injuries of the
injured Roshan Lal have been labeled as “dangerous”. And once this
position is accepted, the ground for convicting the appellants under
Section 307 is washed away.
23. From the evidence discussed above, it has been established on
record that all the appellants in furtherance of their common intention
had caused hurt to Jeet Pal and that too with a sharp edged object i.e.
knife and thus the acts of the appellants squarely fall under Section
Crl. A. No. 290/2002, 331/2002, 342/2002 & 436/2002 Page 11 of 12
324/34 IPC. Since the prosecution has failed to establish the offence
committed by the appellants under Section 307 IPC, their conviction is
liable to be converted into Section 324/34 IPC.
24. In view of the above observations, the appeal is partly allowed.
The conviction is converted from Section 307/34 of the Indian Penal
Code to one under Section 324/34 of the IPC.
25. The present matter is one of the occurrence of the year 1996;
charge against the appellants was framed on 25.05.1999; the judgment
of conviction was passed on 22.03.2002; order on sentence was passed
on 27.03.2002; the present appeals were preferred in the year 2002
and now we are in the year 2017. Apparently, the appellants have
faced the protracted trial for about 21 years.
26. In view of the above mentioned facts and circumstances of the
present case and in order to meet the ends of justice, the sentence of
the appellants is modified to undergo rigorous imprisonment for a
period of two years each and fine of Rs.10,000/- each for the offence
under Section 324/34 of IPC. In default of payment of fine they shall
further sentenced to undergo rigorous imprisonment for six months.
27. In view of the aforesaid, the present appeals filed by the
appellants is partly allowed to the extent indicate above and are
disposed of as such.
(P.S.TEJI)
JUDGE
JULY 04, 2017
pkb/dd
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