For conviction, weapon recovery is not essential: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 491 2020 Reserved on : 01.12.2021 Date of Decision : 05.01.2022 IN THE MATTER OF: SALEEM KHAN THE STATEThrough: Mr. B. Badrinath Advocate ..... Appellant Respondent Through: Mr. Ashok Kumar Garg APP for State HON BLE MR. JUSTICE MANOJ KUMAR OHRI VIA VIDEO CONFERENCING) JUDGMENT MANOJ KUMAR OHRI J. The present appeal has been preferred under Section 374(2) read with Section 482 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 24.10.2019 and the order on sentence dated 30.10.2019 passed by the learned Addl. Sessions Judge 02 Karkardooma Courts Delhi in Sessions Case No. 257 2017 arising out of FIR No. 244 2017 registered under Sections 307 324 IPC at Police Station Khajuri Khas Delhi. CRL.A. 491 2020 Vide the impugned judgment the appellant was convicted for the offences punishable under Sections 307 324 IPC and vide the order on sentence he was sentenced as follows: for the offence punishable under Section 307 IPC to undergo Rigorous Imprisonment for a period of 06 years alongwith payment of fine of Rs.5 000 in default whereof to further undergo Simple Imprisonment for a period of 03 months and for the offence punishable under Section 324 IPC to undergo Rigorous Imprisonment for a period of 01 year alongwith payment of fine of Rs.1 000 in default whereof to further undergo Simple Imprisonment for a period of 01 month. The benefit of Section 428 Cr.P.C. was extended to the appellant. All the sentences were directed to run concurrently and the fines have already been paid. The brief facts as noted by the Trial Court are as under: “1. In brief the facts of the prosecution case are that on 24.05.2017 ASI Surender Pal received DD No. 115B. On receipt of the DD ASI Surender Pal along with Ct. Jhabar Ram reached at the spot i.e. Purani Chowki Mustafabad Delhi. On reaching there they came to know that the injured had already been removed to GTB Hospital. Thereafter ASI Surender Pal along with Ct. Jhabar Ram reached GTB Hospital and collected the MLC No. A 4451 17 of injured Yunus S o Sh. Yusuf wherein the doctor had mentioned ‘physical assault and U O’. In the meantime brother of injured Yusuf namely Sahil also came in the hospital in an injured condition who was also got admitted in the hospital by ASI Surender Pal vide MLC No. C 1908 17 and the doctor had mentioned on his MLC as ‘physical assault fit & U O sharp’. Thereafter ASI Surender Pal recorded statement of injured Yunus wherein he stated that he is the permanent resident of Village Daurala PS Daurala Meerut UP and along with his CRL.A. 491 2020 family was residing on rent and works as sewing machine mechanic. On 24.05.2017 he along with his brother Sahil was going to buy some medicine and when at about 10.00 PM they reached at the corner of Block Gali No.7 Nehru Vihar accused Saleem who resided in Gali o.6 Dayalpur assaulted upon him with knife on his neck and right shoulder. When Sahilcame to rescue him he was also assaulted by accused Saleem and caused injuries to him. He further narrated that accused Saleem had met him in the day time and had said ‘tune hamare upar mukadma karaya hai mai tujhe aaj shaam tak jaan se maar dunga’ and also threatened him. On this Sahilcalled at 100 number PCR van came and took him and his brother Sahil to the GTB hospital.” After completion of investigation the charge sheet was filed under Sections 307 324 506 IPC. Vide order dated 06.09.2018 charges were framed against the appellant under Sections 307 324 IPC to which he pled not guilty and claimed trial. Learned counsel for the appellant contended that the testimony of complainant Mohd. Yunus is unreliable on account of prior enmity with the appellant which has been admitted by the complainant himself. It was submitted that neither the weapon of offence was recovered during investigation nor were the complainant’s blood stained clothes seized. Further the testimony of brother of the complainant Sahil was contended to be unreliable on the ground that Sahil had not accompanied his brother to the hospital. It was also submitted that the PCR Form pertaining to call on 100 number was not produced. Learned counsel also contended testimonies of complainant and his brother have material contradictions inasmuch as the complainant stated that the incident had occurred at about 10:00 p.m. but CRL.A. 491 2020 his brother stated that the incident occurred at about 8:00 p.m. It was further contended that Dr. Deepika who proved the nature of injuries recorded in the MLC of the complainant did not depose regarding preparation of the same. Lastly it was contended that the Investigating Officer had not recorded the statement of any public witness. In the alternative learned counsel submitted that the appellant was not pressing his appeal on merit and he may be released on the period already undergone by him. 7. Learned APP for the State on the other hand supported the impugned judgment and order. It was submitted that the testimonies of both Mohd. Yunus and Sahil are consistent with each other and reliable as both have deposed that they were assaulted by the appellant who was already known to them. I have heard learned counsels for the parties and have also gone through the Trial Court Record as well as the written submissions filed on behalf of the appellant. In support of its case the prosecution had examined a total of seven witnesses. The complainant injured Mohd. Yunus was examined as PW 1 the complainant’s brother Sahil who was also injured in the incident was examined as PW 2 Ct. Jhabar Ramand HC Rajender Singhwere examined to prove the arrest memo and registration of the FIR respectively Dr. Arvind Gautam who proved the MLCs of Mohd. Yunus and Sahil on behalf of Dr. Deepika was examined as PW 5 ASI Surender Pal the Investigating Officer of the case was examined as PW 6 Dr. Deepika who also proved the MLC of complainant Mohd. Yunus wherein nature of injury was opined as grievous by Dr. Ramandeep Kaur was examined as PW 7. CRL.A. 491 2020 10. The complainant Mohd. Yunus deposed in his testimony that he was residing alongwith his parents in a rented accommodation and worked as a mechanic of sewing machines. On the day of the incident i.e. on 24.05.2017 at about 10:00 p.m. while he was going alongwith his brother Sahil to take medicine the appellant came and assaulted him with a knife. The assault resulted in injuries to the witness on his neck and on front side of his right shoulder. When the complainant’s brother Sahil tried to save him he was also given a knife blow by the appellant on his left cheek. After being assaulted the brother of the witness made a complaint at 100 number whereafter PCR came to the spot and took them to the GTB Hospital. It was further deposed that the appellant had attacked the complainant on an earlier occasion as well with a hockey and danda regarding which complaint was given to the police and a case was registered. It was also deposed that in order to take revenge the appellant had asked the complainant about a day prior to the day of the incident to withdraw the earlier complaint. In this regard he was also given life threats. After about three days of the incident in question the appellant came to be arrested at the instance of the witness. He was also identified by the complainant in the Court. In cross examination the witness stated that on the date of the incident he went to buy medicine for himself as he was having eye pain due to injuries which were earlier caused by the appellant. He further stated that though he remained hospitalized for three days his brother was discharged on the same day. He denied the suggestion that injuries received by him were caused by some other person and not the appellant. A suggestion that the appellant was falsely implicated as the complainant’s family members had enmity with some other person or that the appellant was falsely CRL.A. 491 2020 implicated at the instance of complainant’s family members was also denied. He also denied the suggestion that he had not seen the face of the appellant at the time of incident. Sahil i.e. the brother of Mohd. Yunus deposed that two days prior to the incident the appellant had assaulted his brother in respect of which a complaint was lodged at the police station. He further deposed that on the day of the incident the appellant had caused injuries on the neck and other parts of the body of his brother with a chhurri. When he tried to save his brother he was also assaulted by the appellant with the chhurri on his left cheek whereafter the appellant ran away. Subsequently the witness had made a call to 100 number. While he went to call his family members the PCR Van took his brother Mohd. Yunus to GTB Hospital where he was also taken later by the police. In cross examinationthe witness denied the suggestion that he was not present on the spot at the time of the incident or that he had deposed falsely to implicate the appellant. 12. Dr. Arvind Gautam CMO GTB Hospital Delhi proved the MLC dated 24.05.2017 of Mohd. Yunus and deposed that it was prepared under his supervision by Dr. Deepika then JRand at his pointing out arrested the appellant on 27.05.2017. He also deposed that despite best efforts the weapon of offence could not be recovered. 15. The appellant’s statement under Section 313 Cr.P.C. was recorded wherein he stated that he was falsely implicated in the present case. Needless to state Mohd. Yunus was the star witness of the prosecution case being the complainant who suffered injuries at the time of the incident. The law on appreciation of testimony of an injured witness has been enunciated by the Supreme Court in a catena of decisions including State of Uttar Pradesh v. Naresh and Others reported as4 SCC 324 where it was held as under: “27. The evidence of an injured witness must be given due weightage being a stamped witness thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an CRL.A. 491 2020 injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. 9 SCC 719 Balraje v. State of Maharashtra6 SCC 673 and Abdul Sayeed v. State of M.P.10 SCC 259)” 17. A perusal of the material on record in the present case would show that the complainant Mohd. Yunus had clearly deposed that there was pre existing enmity between the accused appellant and him as earlier also the appellant had caused injuries to him and in pursuance thereto a police complaint was made. In the incident in question the complainant received injuries on the neck and on front shoulder which are corroborated by his MLC and are alleged to have been caused by a chhurri. Sahil i.e. brother of the complainant was also injured in the same incident and he also deposed that it was the appellant who inflicted injuries on him and his brother with a chhurri. The testimony of Sahil is not only cumulative to the testimony of the complainant but also consistent and it finds corroboration from his own MLC which has been proved on the record as Ex.PW 5 B. During the trial the suggestion given on behalf of the appellant that the injuries were possible on account of fall was denied by Dr. Arvind Gautam as the injuries were sharp in nature. The incident is stated to have taken place at about 10:00 p.m. The complainant’s MLC was prepared on CRL.A. 491 2020 the same day at about 10:45 p.m. i.e. immediately after the incident. The FIR came to be registered at 03:30 a.m. and the appellant being already known was named in the FIR itself. It is seen that the testimonies of both the complainant Mohd. Yunus and his brother Sahil are consistent with their earlier statements and find support not only from each other but also from the respective MLCs which have been duly proved on record. In view of the aforesaid and the other evidence placed on record this Court finds the testimonies of the complainant Mohd. Yunus and his brother Sahil to be both creditworthy and reliable. 19. A contention was raised on behalf of the appellant with respect to non recovery of the weapon of offence. In connection therewith it is noted that the Supreme Court has observed in Rakesh and Another v. State of Uttar Pradesh and Another reported as 7 SCC 188 that recovery of the weapon of offence is not a sine qua non for convicting an accused. Albeit under Sections 302 34 IPC the Court in this case also opined that it was not possible to reject the ocular evidence of eye witnesses to the incident who were reliable and trustworthy. Combined with the fact that the testimonies of the complainant and his brother Sahil are cogent and consistent the contention raised on behalf of the appellant that the weapon of offence was not recovered has no merit. The same is rejected accordingly. 20. The next contention raised on behalf of the appellant was that the testimonies of the complainant and his brother exhibit material contradiction on the aspect of the time of the incident. While the complainant deposed that the incident occurred around 10:00 p.m. his brother Sahil deposed that the CRL.A. 491 2020 incident occurred around 08:00 p.m. In this regard it is noted that in the alleged history of offence recorded by the concerned Doctor in the MLC of Sahil it was mentioned that the physical assault took place around 10:00 p.m. as per the patient himself. Even otherwise the contradiction as suggested is immaterial insofar as the appellant was already known to both the injured persons and their testimonies are consistent on all other aspects of the incident. 21. Another contention raised on behalf of the appellant was that Dr. Deepika had not deposed about preparation of the complainant’s MLC. However this contention as well lacks merit as the said MLC was also proved by Dr. Arvind Gautam. Dr. Arvind Gautam categorically deposed that the complainant’s MLC was prepared under his supervision by Dr. Deepika who was working as a JR under him at the time. Further while appearing as PW 7 Dr. Deepika proved the nature of injuries appearing on the complainant’s MLC as grievous and no suggestion was given to her in cross examination that she had not prepared the complainant’s MLC. It was also contended on behalf of the appellant that the blood stained clothes of the complainant were not seized and the PCR Form was not produced. However in view of the fact that the complainant was medically examined within 45 minutes of the incident the contention bears no merit and is rejected. Insofar as the contention with respect to non examination of public witness is concerned suffice it to note that when the testimony of an injured complainant is consistent and finds support not only from his own MLC but also from the testimony of another injured then such a contention pales into insignificance. In this regard it is deemed expedient to refer to the decision CRL.A. 491 2020 of the Supreme Court in Sadakat Kotwar and Another v. State of Jharkhand reported as 2021 SCC OnLine SC 1046 where the Court observed as “7. …As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles when the deadly weapon dagger has been used there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused it is rightly held that the appellants have committed the offence under Section 307 IPC.” 24. Note is also taken of the fact that the injuries suffered by the complainant allegedly caused by a chhurri were inflicted on vital part of his body i.e. the neck. The nature of the corresponding injury was opined to be grievous. It was deposed by the complainant that earlier also he was assaulted by the appellant pursuant to which a complaint was lodged with the police. The appellant’s Nominal Roll also indicates that he is involved in FIR No. 235 2017 registered under Sections 308 34 IPC at Police Station Khajuri Khas Delhi. 25. The pre existing enmity between the appellant and the complainant the receipt of two injuries by the complainant during the incident out of which one was on vital part of the body i.e. neck the nature of the injury being opined as grievous would indicate that the appellant had the requisite intention as well as the knowledge that such injuries could have been fatal. Thus in the opinion of this Court the ingredients of the offence punishable under Section 307 IPC are clearly proved against the appellant beyond any shadow of doubt. On the same parameters even though there was no CRL.A. 491 2020 opinion on the nature of injury suffered by Sahil the receipt of injury by him was proved through his MLC. In view of the aforesaid analysis this Court concurs with the impugned judgment on conviction passed by the Trial Court. Accordingly the impugned judgment is upheld. 27. Learned counsel for the appellant prayed that a lenient view on the appellant’s sentence may be taken as the appellant has already undergone about 04 years and 06 months out of the total sentence of 06 years awarded to him and the fine imposed on him has already been deposited. It was further stated that the appellant at the time of incident was a little over 18 years of age and he belongs to a poor family. It was also stated that the appellant has responsibility of his parents as well as five brothers and sisters on him. 28. As per the Nominal Roll of the appellant available on record he has already undergone sentence of 04 years 05 months and 09 days as on 07.11.2021 alongwith remission of 06 months and 03 days and his unexpired portion of sentence is 01 year and 18 days. The fine amount is stated to have been deposited. His jail conduct for the last one year is also stated to be satisfactory. 29. Keeping in view the appellant’s age the period of incarceration his jail conduct for the last one year and other mitigating circumstances this Court deems it fit to modify the order on sentence and direct that the appellant be released on the period already undergone by him unless required in any other case. CRL.A. 491 2020 The appeal is dismissed insofar as challenge to the judgment on conviction is concerned however the order on sentence is modified to the aforesaid extent. 31. A certified copy of this judgment be communicated to the appellant through the concerned Jail Superintendent and also to the Trial Court. MANOJ KUMAR OHRI) JUDGE JANUARY 5 2022 CRL.A. 491 2020 

Summary: The issue was in this case was whether a man found guilty of murder can be convicted when the weapon of crime was not recovered which was dealt by a bench of Delhi High Court  consisting of Justice Manoj Kumar Ohri in the matters between Saleem Khan v State (GNCTD) CRL. A. 491/2020 decided on 5.1.2022. The facts of this case are the accused is booked under section 307,324 and 506 of IPC for attempting to murder and causing grievous hurt to Yunus and his brother, for which he was sentenced to 6 years rigorous imprisonment with fine.According to Police, the injuries were caused by a knife which was not recovered.The accused appealed at the high court challenging the order of conviction. The appellant contended that the Investigating Officer did not record the statements of any public witnesses. The fact that the statements of the complainant and his brother contradicted materially in terms of the time when the incident occurred was immaterial as the appellant was already known to both the injured and them.The statements were consistent with all other aspects of the case. The complainant’s bloody clothes were not confiscated and the PCR Form was not presented but was rejected by the Supreme Court. Judging by the minutes of the incident, the claim has no value and was rejected and the Investigative Officer had not recorded the testimony of any public witnesses. The respondent contended that the statements of both Yunus and Sahil are consistent and reliable, as they both declared that they had been attacked by the appellant  whom they already knew. The Delhi High Court cited case of Loyalty Kotwar and Other v. Jharkhand State as observed and recognized in the judgments of this Court, no one can enter the mind of the accused and his intention must be high and the part of the body chosen for the attack from the weapon used and the nature of the injury caused. Considering the incident within the framework of the above-mentioned principles, it can be said that the use of a deadly weapon a knife blow to the stomach and the nature of injuries close to the chest are of vital importance. Given the nature of the corpses and wounds, it is justifiably accepted that the appellants committed the crime under Article 307.In the present case, the injuries sustained a knife and to the neck.The nature of the corresponding injury was considered severe.