Mohd. Anis v. State

order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an 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."

¶28The testimony of a hostile witness is not to be discarded completely. The part of the evidence which is cogent and credible can be relied upon. Reference in this regard is made on the decision rendered in Himanshu @ Chintu Vs. State of NCT of Delhi reported as (2011) 2

SCC 36 and Koli Lakhman Bhai Chana Bhai Vs. State of Gujarat reported as (1999) 8 SCC 624.

¶29The testimony of the complainant, an injured is credible and trustworthy. Her presence at the spot is proved by the testimony of an independent witness. The MLC corroborates the testimony of the complainant about the incident as well as the timings. The prosecution successfully proved that the appellant caused injuries to the complainant on 27.01.2008 at his house. As such, non-recovery of knife, is of no significance in the facts of the present case.

¶30Whether an accused has the requisite intention for the offence punishable under Section 307 IPC, can be gathered from the attending circumstances of the case. In Sarju Prasad Vs. State of Bihar reported as AIR 1965 SC 843, it was held as under:- "9. It is true that the witnesses say that the appellant used a chhura. It is also true, that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore, it cannot be said that it was sufficiently for to penetrate the abdomen deep enough to cause an injury to a vital organ which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore, unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him."

¶31The Supreme Court in Jage Ram and Others vs. State of Haryana reported as (2015) 11 SCC 366, while affirming the conviction of Jage

Ram for having caused grievous injury on the injured, under Section 325 IPC, held as under:- "12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused. Such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature and severity of the blows given etc."

¶32Even in the decision relied upon by the learned counsel for the appellant rendered in Manoj Kumar (Supra), it was held as under: "18. One fact that stands out, that out of 3 incised wounds, two were skin deep. Only 1 was deep and penetrating. This shows that either intensity of the force used was weak, or the length of "Sua" was small.

¶19If the injuries are reflected of the intention, evidenced by weakness of the thrust, it certainly rules out intention to cause death of the injured."

¶33In view of the above enunciation of law, the requisite intention for the offence punishable under section 307 IPC can be gathered from the nature of the weapon used, situs of the injury, severity and persistence of the blows including the number of blows, nature of injury, words spoken by the accused at the time of the incident alongwith other attending circumstances.

¶34In the light of the evidence that has come on record, the nature of the injuries and the fact that no vital organ of the body was injured and also that the injured was discharged from the hospital on the same day, it cannot be said with certainty that the appellant had the intention as required in the offence punishable under Section 307 IPC.

¶35At the same time, it has been proved on record that the appellant had nevertheless, caused injuries to the complainant. A perusal of the MLC shows that the injuries were caused by a sharp weapon however, the same were opined to be simple in nature.

¶36The conviction of the accused under 307 IPC is set aside. Instead, the appellant is convicted for the offence punishable under Section 324 IPC. The appellant is sentenced to undergo RI for a period of 6 months. The fine of Rs. 5000/- has also been paid. As per the Nominal Roll dated

10.07.2019, the appellant has undergone 3 months and 4 days as on

15.01.2013. The appellant's bail bonds are cancelled and he is directed to surrender before the concerned court within a period of 2 weeks from today to undergo the remaining sentence.

¶37A copy of this judgment be sent to the trial court. Trial court record be sent back.

(MANOJ KUMAR OHRI) JUDGE

AUGUST 27th, 2019 na

* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 229/2013 Reserved on : 19.07.2019 Date of Decision : 27.08.2019 IN THE MATTER OF: MOHD. ANIS ..... Appellant Through : Mr. Vidur, Mr. Apurv and Ms. Sanjeevni Mittal Jain, Advocates versus STATE ..... Respondent Through : Ms. Kusum Dhalla, APP with Insp. Ratnesh Kr. and ASI Suresh Kr., New Delhi CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI 1. The present proceedings are instituted challenging the judgment on conviction dated 14.01.2013 passed by ASJ-03(NE), Karkardooma Courts, Delhi arising out of SC No.115/10 in FIR No.24/08 registered under Section 307 IPC at P.S. New Usmanpur, Delhi whereby the appellant was convicted for an offence punishable under Section 307 IPC and vide order on sentence dated 15.01.2013, the appellant was directed to undergo RI for two years with a fine of Rs.5,000/-, in default of which, the appellant was directed to undergo RI for a period of six months. The benefit of Section 428 Cr.P.C. was granted to the appellant. 2. The facts of the prosecution case, as noted by the trial court, are: "That on 27.01.08 on receipt of DD no. 23A HC Jagbir Singh along with Ct. Mehboob Ali reached the spot i.e. gali no. 20, H. no. R/118, Brahmpuri, Delhi where he came to know that the injured had already been removed to GTB hospital by PCR van. HC Jagbir Singh along with Ct. Mehboob Ali reached GTB hospital and collected MLC no. C-377/08 of injured Noorjahan and the MLC showed the alleged history of assault and patient was declared fit for statement. Statement of Noorjahan w/o Anis r/o H. no. R-118, Gali no. 20, Brahmpuri, Delhi aged 30 years was recorded wherein she disclosed that due to strained relationship with her husband i.e. accused Anis she had been living along with her children at her parental home i.e at Jhuggi no. 7, near S Block, Patel nagar. On 27.01.08 she had come to Aggarwal Electronics to pay the installment of washing machine at D-23/5, Chauhan Banger, Seelampur, Delhi. When she came out of the shop after making payment her husband i.e. accused Anis met her there. He took her to his home at H. no. R-118, Gali no. 20, Brahmpuri, Delhi. At about 8.00 PM he started abusing her and told her that he had married another woman and she should take away all her clothes and belongings. He further threatened her by saying that "mai tujhe saal bher se apne maa baap ke sath rehne ka maja chakhata hoon. Aur abhi tera kaam tamam ker deta hoon" (I will teach you a lesson for staying with your parents for the past 1 year. I will kill you). He took out a knife from the pocket of his pants and attacked her. She raised alarm for help. The accused fled away from the spot. Some body called the police at no. 100. She was removed to GTB hospital in a PCR and she wanted that legal action be initiated against accused Anis. HC Jagbir Singh put his endorsement on the rukka and got the FIR registered u/s 307 IPC. Further investigation was handed over to SI Naval Singh who got the spot photographed, prepared site plan at the instance of complainant. He also collected the blood which was lying at the spot by cutting vinyl floor covering on which the blood had fallen. He also seized Salwar, kurta and bra of the injured which were having bloodstains. He recorded supplementary statement of the complainant, also took into possession photocopy of her Nikahnama and photographs. Accused was arrested on 07.02.08. His disclosure statement was recorded. He could not get the knife recovered. The exhibits were sent to FSL and after completing other necessary formalities charge sheet was filed against the accused u/s 307 IPC." 3. After completing the investigation, a charge-sheet was filed. During the trial, the prosecution examined 15 witnesses. The complainant (estranged wife of the appellant) was examined as PW-2. Two independent witnesses, who were the neighbours i.e., Babloo and Rihana, were examined as PW-1 and PW-6 respectively. Dr. Parmeshwar Ram, who proved the MLC of the injured, was e