DHANI RAM ALIAS DHANI Vs. STATE

JUDGEMENT

(1.) Dhani Ram has been convicted for offences punishable under Section 307 Indian Penal Code . and Section 27 of the Amrs Act vide judgment dated May 20, 1988 of Shri K. S. Gupta. Additional Sessions Judge and has been sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 307 Indian Penal Code . and to undergo six months rigorous imprisonment for the offence punishable under Section 27 of the Arms Act vide subsequent judgment dated May 25, 1988 The convict has filed this appeal challenging his conviction and sentences.

(2.) On November 21, 1986 at about 8.45 P.M. Virender Kumar was got admitted in J.P.N. Hospital brought by his father Partap Singh in injured condition. It was mentioned in the history recorded in the MLC that he had been stabbed in abdomen by Dhani in Bhagat Singh Nagar. The MLC Ex. Public Witness 5/A shows that he had 1" long oblique stab wound in right iiiac fossa. The duty constable at the hospital sent the information to the police post Shidi Pura, Delhi where Daily Diary, copy of which is Ex. Public Witness 6/A was recorded. The copy of the same was handed over to S.I. Mohan Lal who proceeded to hospital along with constable Krishna Kumar. The statement of Sanjay, son of Mohan Lal was recorded on the basis of which the case was registered. It may be mentioned that the injured was decfined unfit for statement by the doctor when the I.O reached the hospital and Sanjay was found present at that place and on his statement the case was registered 'as he claimed to be eye witness. It was mentioned in that statement Ex. Public Witness 1/A that at about 8 P.M. he was present outside the shop of one Chunni Lal and in the same gali appellant Dhani Ram, washerman lives in House No. 10218, Bhagat Singh Nagar whom he knew earlier. He mentioned that Virender Kumar who is also resident of House No. 10280, Manak Pura whom also he knew earlier had come on his Scooter DIH 1076 from the side of his house and he drove his scooter a little bit fast while crossing the appellant and after few minutes he again came on the scooter and the appellant stopped him and gave him abuse and shouted that he had no business to take rounds on the scooter at such fast speed lo which Virender Kumar replied that he was coming and going for some work on which Dhani Ram held out the threat that he would see to him as to how he dare to come again and again and Virender Kumar retorted that he was no one to check, him and at that time Dhani Ram, appellant took out a knife (Chhura) from the dub of his pant and uttered the words that he would stop his coming and going for all times. He stabbed him with that knife in has abdomen on the right side and at that moment injured's father also came to the spot and be and injured's father rescued the appellant from Dhani Ram and Dhani Ram managed to escape. It was also mentioned by this witness that Virender Kumar had put his hand on his wound and did not allow the blood to come on his clothes or blood to fall on the grund. The 1.0. proceeded to the spot and took into possession the said scooter of the injured vide Memo Ex. PQ2/A which was signed by Sanjay Kumar. The clothes of the injured were taken off from his person and were converted into scaled parcels and were handed over to the police by the duty constable vide Memo Ex. Public Witness 7/A. The photographs of the spot showing the scooter present at the spot were taken which are Ex. Public Witness 5/1 to Ex. PW5/3. Case was registered vide FIR copy of which is Ex. PW11/B. On November 27, 1986 the appellant was arrested and he made a disclosure statement that he had kept the dagger concealed in a hedge at Faiz Road park and he could point out the same and get it recovered. The said statement is Ex. Public Witness 12/A and it was signed by witnesses constable Satbir Singh and constable Rajinder. In pursuance to the said statement, the appellant is stated to have led police party to the said park at Faiz Road and he got recovered the dagger which stood concealed in the bushes in the said park and sketch of the dagger Ex. Public Witness 12/B was prepared and dagger Ex. P-l was converted into sealed parcel and was taken into possession in the presence of the same constables. The sketch of the place of occurrence was prepared which is Ex. Public Witness 13/A. The pointing out Memo Ex. Public Witness 13/B was also prepared. The sealed parcels containing the clothes of the injured and the dagger were sent to CFSL and report, Ex. PY to PZ were received which show that blood was detected on the clothes of the injured and also on the dagger. The blood on the clothes as found to be of human origin of group 'A' while group of the human blood on dagger could not be detected. The cut marks were found on the pent Q-l to Q-8 and on the shirt Q-9 which were said to be possible by a weapon having both edges sharp like a dagger. No opinion has been given regarding the cut mark of Vest due to its stretchable nature of weaving pattern of fabric varn. The accused has pleaded not guilty to the charges framed against him.

(3.) Sanjay, the eye witness of the occurrence who appeared a PW-1 had turned hostile and denied having seen the occurence. He deposed that he had not seen the occurrence or even the injured at the spot. Partap Singh, Public Witness -2 the father of the injured has however deposed that he had witnessed the occurrence and he had taken his son in injured condition to the hospital. According to him on that day he had come out of his house to buy some cigarette and at that time his son was present in the house but when he reached the place of occurrence, he found his son coming on scooter and being stopped by the appellant and then altercation having taken place between the appellant and has son and appellant having stabbed his son with a knife in his abdomen. He could not remember of course the number of the scooter which his son was driving. Nothing came out of his cross-examination which shows that he had any reason to falsely implicate the appellant and save the real culprit who had caused injury to his son. He would have been the last perron to allow the real culprit to go scotfree and implicate the appellant in a false case. There is not even any suggestion that there is any enmity between the appellant and the injured prior to this occurrence. Virender Kumar, Public Witness -3 injured in the case gave the facts as has been mentioned by me in the opening of this judgment. It was suggested to him for the first time that he was coming out on the scooter with one Asha sitting on the pillion seat and the appellant and other residents of the Mohalla objected to his roaming on ths scooter with a girl and when later on the injured had come on scooter, the appellant was not even present and the appellant was given injury by some other person. No such story was suggested to Public Witness -2 in cross-examination who was examined prior to the injured. It is obvious that this story is an afterthought one which has been put to the injured. As a matter of fact, the learned counsel for the appellant could not point out any lacuna in the prosecution case. As far as the statement of the injured is concerned regarding his having been stabbed in the abdomen by the appellant is concerned he only pointed out that there have been found more cuts on the pent of the injured but no explanation has been forthcoming as to how appellant's pent received so many cuts when in fact he had received one injury. No question was put to the injured or his father in cross-examination to get their explanation as to how so many cuts came to be there on the pent of the appellant when in fact he received one injury on his abdomen. If such questions have been put the injured as well as the father could have given some explanation. The crucial question which needed to be decided was whether the stab wound had been infficted by the appellant on the abdomen of the injured or not. For that purpose no doubt can be thrown on the version of the prosecution on the mere fact that there have been same more cuts found on the pent of the appellant. The cuts on the rent of the appellant could have been caused for more than one reason and could be of any date prior to the occurrence. The learned Additional Sessions Judge has given sound reasons for believing the testimony of injured and the father of the injured in order to bring home the offence of the appellant. It is not out of place to mention that even in the MLC it was recorded that the stab injury had been caused by Dhani. The appellant in his statement under Section 313 Cr. P.C. has not given any good reason as to why he has been falsely implicated in this case. The learned counsel for the appellant has then contended that at least offence under Section 307 Indian Penal Code . is not made out because the doctors who had examined the appellant and prepared the MLC and had opined the injuary as dangerous have not been examined. No hospital record of the injured had been proved from where the Court can find out whether the injuiry inflicted on the injured was dangerous The MLC and the opinion of the doctor appearing on the MLC were proved to be in the handwriting of the doctors by the Record Clerk. The whereabouts of the doctors could not he traced. They had left the hospital without giving their addresses as stated by K. K. Chibbar, Record Clerk of J.P.N. Hospital However, it is correct that in the absence of any record of the injury of the injured in the hospital, it is not possible for this Court to opine whether the injury of the injured was dangerous to nature. It has been held in Ved Prakash versus The State 1980 C.C. Cases 51 (Delhi) (1) and also in Narinder Kumar versus The State of Delhi; 1980 C.C. Cases 62 (Delhi)(2) that if the prosecution did not produce the relevant medical record of the hospital relating to the injured and the doctor who had opined the injury as grievous also not examined, the Court cannot convict the accused for an offence punishable under Section 326 I.PC. In the said two cases the conviction was converted from Section 326 IPC to Section 324 Indian Penal Code on that score alone. The learned Additional Sessions Judge in his judgment has held that the appellant had. while inflicting the one stab injury uttered the words that he would stop his coming for ever meaning thereby that the appellant had intention to inflict the fatal injury to the injured. The narration of the facts above shows that the occurrence had taken place due to sudden quarrel developing between the appellant and the injured. The appellant could not obviously had any intention to cause death of the injured. He wanted only to teach some lesson to the injured. The fact that he inflicted one stab injury may be on the vital part of the injured docs not mean that appellant had intention to cause any fatal injury to the injured. The injury inflicted on the injured has to be treated as grievous injury. The injured remained in the hospital for a period of more than 20 days. So, the appellant should have been convicted for an offence punishable under Section 326 Indian Penal Code . As far as the recovery of dagger in question is concerned, the learned counsel for the appellant has argued that the recovery has been effected from a public park which is accessable to one and all and thus the appellant cannot be foisted with exclusive knowledge of dagger being concealed in the public park. The counsel for the appellant forgets that the dagger was not lying in open place. It was lying concealed in bushes and it is the appellant who got it recovered from the bushes. So the exclusive knowledge of the appellant regarding the presence of knife concealed in the park has to be inferred. There is no reason for the police to have unnecessarily foisted the recovery of dagger on the appellant. So, the Additional Sessions Judge was right in believing the statement of the police officials, although no public witness has been joined, in coming to the conclusion that the dagger in question was recovered at the instance of the appellant and the fact that the dagger had human blood on its blade indicates that the same must have been used for committing the offence in question. I, hence modify the conviction of the appellant, from one under Section 307 Indian Penal Code to under Section 326 IPC. I maintain the conviction of the appellant for offences punishable under Section 27 of the Arms Act. I direct that the appellant would undergo only rigorous imprisonment for two vears under Section 326 Indian Penal Code and sentence awarded under Section 307 is set aside. I maintain the sentence awarded under Section 27 of the Arms Act. The appeal is dismissed with above modification. The sentences shall be concurrently.