CRL.A.NO.606/2003 Page 1 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 606/2003 SANJAY & ORS. ..... Appellant Through: Mr. S. K. Pandey, Adv. versus STATE GOVT. OF N.C.T. OF DELHI ..... Respondent Through: Mr. Arvind Kumar Gupta, APP CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 27.04.2010 1. Appellants have been convicted under Section 307/34 Indian Penal Code and have been awarded 4 years rigorous imprisonment and have been directed to pay a fine of Rs.1000/- each and in default undergo further rigorous imprisonment for six months. 2. As per the finding recorded by the Learned trial court, three appellants had assaulted one Mohd. Idris on 21.9.1999 and Sanjay had given dagger blows on his right thigh and pubic region. Mohd. Idris appeared in the witness box and testified. 3. After some hearing, learned counsel for appellants has CRL.A.NO.606/2003 Page 2 confined his submission and submitted that appellants have been wrongly convicted under section 307/34 of the Indian Penal Code and infact they could have been convicted only under Section 324/34 IPC. There is merit in the contention raised by learned counsel for appellants. MLC in question Ex. PW 2/A records that the victim had sustained stab injuries. There were two injuries on the thigh of about 1 ½ and 3 inches. The depth of the injuries however is not indicated in the MLC Ex. PW 2/A. The MLC records that Mohd. Idris was smelling of alcohol. I also examined the statement of PW-3 Mohd. Idris. He had stated that after being stabbed, his son lifted him from the ground and made him sit on a bench. After sometime he was taken inside the house and thereafter he called the police. He was taken to the police station from where he was shifted to the hospital. Thus even after the said incident, the victim PW 3 Mohd. Idris was conscious and it was after some time that he was taken to the hospital. 4. For conviction under Section 307 IPC, it must be shown that the accused acted with such intention or knowledge and under such circumstances that if he by the act caused death, he would be guilty of murder. The act must be done with such mens rea as would have constituted the act of murder, if death had occurred. Where the CRL.A.NO.606/2003 Page 3 circumstances under which the incident was caused preclude any inference that assault was caused with an intent to murder, the case would fall within the scope of Section 324 IPC. 5. In the present case, the complainant Mohd Idris (PW-3) has stated that on 21.9.1999 he had accompanied appellant’s father Sopali to Ramgarh from where he returned to his house intoxicated. He was present in the ground floor of his house, when Sopali called him out and they stood on a culvert, where appellant Sanjay and Bunty were also present. A quarrel ensued and he was grappled by Sopali and Bunty, while appellant Sanjay stabbed him. 6. PW-4 Mohd. Jail also confirms that his father Mohd. Idris (PW- 3) had gone with Sopali and returned back in an inebriated state. After sometime again Sopali came and called out the complainant Mohd. Idris and took him to a culvert in the street where he heard a quarrel. He has stated that while the fight had ensued, the appellant who was present at the spot went to his house to get a dagger and returned after 2-3 minutes. Within this span of 2-3 minutes, the fight continued. Thereupon, Sopali and Bunty caught hold of his father and appellant Sanjay stabbed him. CRL.A.NO.606/2003 Page 4 7. The important thing to be borne in mind in determining the question whether an offence under section 307, is made out is intention i.e. the intention should be such to cause death. The circumstances and the injury inflicted on the complainant is reflective of the mens rea necessary to make a person liable under Section 307. In the present case, the appellant in consequence of a quarrel between his father and the PW-3, and stabbed the complainant’s thigh which reflects his intention to cause injury but precludes any inference that the assault was caused with guilty intent to murder. 8. In these circumstances, I am satisfied that the appellants did not have any intention or knowledge as to cause death of the victim. Conviction is accordingly confirmed but under Section 324 read with Section 34 IPC, instead of 307/34 IPC. 9. The appellants Sopali and Umarpal have already under gone sentence of one year, four months and 29 days and earned remission of four months and 14 days as per the nominal roll. Accused Sanjay has under gone sentence of one year, 11 months and 2 days and earned remission of five months. The alleged offence was committed in the year 1999 thereafter as per nominal roll there is no criminal case against the appellants. It is also a matter of fact that the appellants Sopali and Umarpal were released CRL.A.NO.606/2003 Page 5 on bail vide order dated 9th December, 2004 and thereafter Sanjay was released on bail vide order dated 6/5/2005. 10. Keeping in view the aforesaid facts the sentence is restricted to the period undergone. Appellants have already paid fine of Rs.1000/-. The sentence of fine is sustained. Appeal is accordingly disposed of. Dasti. SANJIV KHANNA, J. APRIL 27, 2010. Ab/VKR/J