Crl. A. 992/2011. Case: Vikas Vs State Govt. of NCT of Delhi. High Court of Delhi (India)
| Case Number | Crl. A. 992/2011 |
| Counsel | For Appellant: M.L. Yadav, Advocate and For Respondents: Sunil Sharma, APP |
| Judges | G. S. Sistani and Sangita Dhingra Sehgal, JJ. |
| Issue | Arms Act, 1959 - Sections 25, 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 374; Indian Evidence Act, 1872 - Sections 32, 32(1); Indian Penal Code 1860, (IPC) - Sections 201, 212, 299, 300, 302, 304, 307, 34, 428 |
| Judgement Date | January 30, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
G. S. Sistani, J.
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Present appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure Code, 1973, against the judgment and order on sentence dated 4.6.2011 passed by learned Additional Sessions Judge- 01 (Outer), Rohini, Delhi, by which the appellant has been directed to undergo life imprisonment with fine of Rs. 4,000/- and in default of payment of fine Simple Imprisonment for two months for the offence punishable under Section 302 of the Indian Penal Code; Rigorous Imprisonment for two years with fine of Rs. 1000/- and in default of payment of fine Simple Imprisonment for one month for the offence punishable under Section 201 of the Indian Penal Code; and Rigorous Imprisonment for three years with fine of Rs. 2000/- and in default of payment of fine Simple Imprisonment for one month for the offence punishable under Sections 25/27 of the Arms Act, 1959. It was further directed that all the sentences would run concurrently. It was also directed that benefit of Section 428 of the Indian Penal Code would be given to the appellant.
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The case of the prosecution, as noticed by the learned trial court, is as under:
"Manu was residing at house no. D-3/154, Sultanpuri, Delhi. Manu was the brother of Ashok. Manu on 5.12.2009 at about 9.15 pm had gone to a park situated near to his house where 4-5 boys were playing with cards. Manu asked them not to play cards there. On this Vikas @ Vicky @ Ponga took out a sharp edged knife and inflicted knife blows in the stomach and other body parts of Manu. Ashok was standing near the park and heard the cries "maar diya maar diya" made by Manu. Manu came out from the park and fell down on the gate. Manu was bleeding at that time. Ashok removed the Manu to Sanjay Gandhi Memorial Hospital. The police was informed.
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SI Praveen Kumar after receipt of DD No. 44A regarding the admission of injured by his brother at Sanjay Gandhi Memorial Hospital along with PSI Deepak reached at Sanjay Gandhi Memorial Hospital. SI Parveen Kumar collected the MLC of Manu. Manu was medically examined by Dr.Sanjay Kaushik with the history of physical assault. The general condition of the Manu was stated to be poor due to the multiple sharp injuries. Dr.Sanjay Kaushik declared Manu fit for statement. SI Parveen Kumar recorded the statement of Manu which was signed by Manu. Ashok, brother of Manu also signed on the statement made by Manu and recorded by SI Parveen Kumar. Manu in his statement stated that when he asked 4/5 boys who were playing cards, not to play cards in the park then Vikas @ Vicky @ Ponga inflected knife injuries to him. Rukka was prepared. FIR No. 384/09 u/s 307 IPC was registered. Manu (hereinafter referred to as "deceased") expired in hospital. Thereafter the investigation was handed over to Inspector Mahesh Kumar. The case was converted u/s 302 IPC.
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Inspector Mahesh Kumar got conducted the post mortem on the dead body of the Manu. The cause of death was opined as haemorrhage and shock consequent to penetrating injuries in the chest. Exhibits were collected. Vikas @ Vicky @ Ponga was arrested. Subsequent investigation was handed over to Inspector Samarjeet Singh. Inspector Samarjeet Singh during investigation and at the instance of the accused got recovered knife stated to be used as a weapon of offence from the jhuggi bearing no. 8, Railway Phatak, Sanjay Gandhi Transport Nagar, Delhi, belonged to Jagiro. Knife was seized. Jagiro was also arrested. Inspector Samarjeet Singh during investigation collected Post Mortem Report, obtained subsequent opinion regarding weapon of offence, got prepared the scaled site plan, sent exhibits to FSL and completed other formalities of investigation. Inspector Samarjeet Singh (hereinafter referred to as "Investigating Officer") after completion of investigation charge sheeted the accused u/s 302/201/212/34 IPC and u/s 25/27 Arms Act, 1959. The charge sheet was submitted to the court of concerned Metropolitan Magistrate. The accused were put to trial."
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The prosecution has examined twenty two witnesses. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The appellant denied the allegations made against him. He stated that no such incident took place and that he was falsely arrested and his signatures were obtained on blank paper.
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The learned trial court after considering the entire material on record convicted and sentenced the appellant as stated above.
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The contentions raised by the Sh. M. L. Yadav, learned counsel for the appellant are that:
a) The trial Court lost track of the settled position of law while deciding the case against the appellant and the judgment of the trial Court is contrary to law and facts.
b) There is no legal evidence against the appellant justifying his conviction.
c) The appellant was falsely arrested at the instance of PW-1 Ashok, brother of the deceased and implicated in the present case though no such incident took place.
d) The trial Court failed to consider that the prosecution witnesses PW-6 Vijay and PW-7 Manish @ Mannu have not supported the case of the prosecution.
e) The knife was planted on the appellant and no recovery had been effected.
f) The statement Ex. PW-1/A made by the deceased cannot be relied upon and treated as a dying declaration under Section 32 of the Indian Evidence Act, 1872 for convicting the appellant as the same has neither been signed by any doctor nor the same was recorded in the presence of the Sub Divisional Magistrate.
g) No case under Section 302 of the Indian Penal Code is made out and at best the appellant could have been convicted under Section 304, Part II of the Indian Penal Code. The incident took place on account of a minor issue and the appellant had no intention to kill the deceased.
In support of this submission counsel for the appellant relied upon Jagtar Singh @ Jagga @ Ganja v. State of Delhi, reported at 2012 (2) JCC 950 in which it has been held that:
"10. It would now be relevant to discuss the main submission on behalf of the Appellant, i.e. that the offence in question was not Section 302, IPC, but was Section 304 IPC. In such cases, it has been held that the nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
The distinction between culpable homicide and murder was aptly drawn by the Hon'ble Supreme Court in Kandaswamy v. State of Tamil Nadu (2008) 11 SCC 97. It was held that:
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whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima jade found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code."
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On the other hand, Sh. Sunil Sharma, learned APP for the State argued that:
(a) PW-1 Ashok Kumar, brother of the deceased is an eye- witness and was present at the spot. According to PW-1 Ashok Kumar, Manu, his brother on 5.12.2009 at about 2.15 p.m. had gone to the nearby park where 2-3 boys were playing cards which were objected to by Manu, the deceased. He asked one of the boys, namely, Vikas alias Vicky alias Ponga not to play cards near their house on which the appellant...
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