Banne Khan vs The State (NCT of Delhi)

Sanjay Kishan Kaul, J.—Briefly stated, case of the prosecution is that the complainant Farmida Begum (PW7) lost her husband about four years prior to the occurrence. The appellant Banne Khan had been pestering her to marry him, but she refused his offer. On 09.04.92 at about 7.00 AM in the morning, appellant Banne Khan is stated to have visited the house of the complainant and repeated his proposal of marriage to her. She, however, declined the offer and refused to marry him. Son of the complainant, Salim (PW6) also told the appellant to leave. After some time the complainant went to fetch water from the house of a neighbour. When she was coming back after fetching water, at about 7.30 AM, appellant Banne Khan is stated to have attacked her with a knife and inflicted knife injuries on her chest, head, nose, left shoulder, left buttock and right side of the stomach. The incident is stated to have been witnesses by PW5 Vinod Kumar, a neighbour and PW6 Salim, son of the complainant. Because of the injuries, the complainant became unconscious. She was shifted to GTB Hospital by her son. The information about her admission in GTB Hospital was conveyed to the Police Station, which was recorded in the daily diary register as DD No. 6A at the Police Station, Seelampur and investigation of the case was entrusted to ASI Kadam Singh. ASI Kadam Singh visited the hospital and obtained the MLC of the complainant who was declared unfit for statement. Thus, he appended his endorsement on the copy of DD No. 6A and sent it to the Police Station for registration of the case u/s 307 IPC.

After registration of the formal FIR, investigation was entrusted to ASI Kadam Singh. He recorded the statement of the witnesses and after completing the formalities of investigation submitted the challan against the appellant.

Appellant was charged u/s 307 IPC, to which he claimed to be not guilty and claimed to be tried.

On conclusion of trial, learned trial Judge relying on the testimony of the witnesses PW5 Vinod Kumar, PW6 Salim and PW7 Farmida Begum, convicted the appellant u/s 307 IPC and sentenced him vide impugned judgment and order on sentence.

Learned Counsel for the appellant has submitted though the learned trial Judge was right in convicting the appellant for assault and inflicting injuries on the person of Farmida Begum(PW7) with a knife, he erred in convicting the appellant u/s 307 IPC. He has submitted that the trial Judge failed to appreciate that there was neither any motive nor any intention on the part of the appellant to commit murder of complainant Farmida Begum. He has further submitted that the Trial Court also failed to take note of the fact that the prosecution had miserably failed to prove the nature of the injuries caused to the complainant which could give rise to an inference that those injuries were caused with an intention to commit murder. He has urged us to set aside the conviction u/s 307 IPC and convert it into the conviction u/s 324 IPC.

Learned Counsel for the State, on the other hand, defended the conviction u/s 307 IPC. He has submitted that PW9, SI Kadam Singh has proved the MLC of the complainant mark A. Besides, the Trial Court has accepted the testimony of PW5 Vinod Kumar, PW6 Salim and PW7 Farmida Begum, the complainant, and rightly concluded that the injuries inflicted on the person of the complainant cumulatively were sufficient to cause death under ordinary circumstances.

An offence u/s 307 IPC is a grave offence and it requires the same ingredients to be proved as are needed to prove the offence u/s 302 IPC, except that in the case of 307 IPC the act of the accused falls short of the death of the deceased, which is a necessary ingredient u/s 302 IPC. Sometimes, it becomes very difficult to differentiate between an offence of attempt to commit murder u/s 307 IPC and other offences like u/s 325, 326 IPC etc. In both the cases, the injuries may be there. The crucial factor to distinguish between the above offences is the existence of motive or intention on the part of the wrong doer that the injuries inflicted by him are so grave and dangerous as to result in the death of the victim. Therefore, care has to be taken that in such cases of injuries, there may not be wrong application of evidence looking into the serious consequences which may result from such error on the part of the Court, as the penalty prescribed u/s 307 IPC and the other offences of injuries to a person vary to a great extent.

Mens rea or intent, which is a state of mind can never be precisely proved by direct evidence as a fact and it can only be deduced or inferred from accompanying facts. Some relevant facts for inferring Mens rea are nature of offence, nature of injury caused and the place where the injuries were inflicted. In the instant case, as per the testimony of the eye witnesses namely, PW5 Vinod Kumar, PW6 Salim and PW7 Farmida Begum, the injured, the motive for the crime is stated to be the refusal of PW7 Farmida Begum to accept the marriage proposal of the appellant. In our view, the aforesaid refusal ordinarily would not push a reasonable person to take such an extreme step to assault the lady with the intention to take away her life. However, the fact remains that different people react to a situation in different manner. Therefore, in order to infer whether or not the appellant had intention to commit murder of the complainant Farmida Begum, it is essential to advert to the medical evidence with a view to find out the place of injuries as well as the nature of injuries. On perusal of record, it transpires that prosecution has failed to prove the MLC of the injured Farmida Begum. PW9 in his testimony has stated that mark A is the MLC of the injured Farmida Begum. In our view, identification of MLC mark A by the Investigating Officer is not sufficient proof of the document. The MLC could be proved by direct evidence i.e. from the original record of the hospital and by examining the Doctor who had attended to the injured and prepared the MLC. Prosecution has failed to do so. Therefore, we are of the view that MLC mark A has not been proved in accordance with law and its contents cannot be used against the appellant. In absence of the medical evidence, we find ourselves handicapped in coming to a conclusion about the place and the nature of injuries suffered by the complainant Farmida Begum which could help in coming to the conclusion about the intention of the appellant behind the assault on the complainant. Since the prosecution has failed to produce the best evidence pertaining to the injuries suffered by the complainant and the nature of the injuries, the benefit of the lapse must go to the appellant.

PW7, Farmida Begum, the injured has stated that she was attacked by the appellant with a knife and she sustained injuries on her head, nose, shoulder and back. She has not clarified in her testimony as to which of those injuries were caused with a knife or by a blunt force. In absence of any cogent evidence in that regard, particularly when the prosecution has not examined the Doctor concerned, we find it difficult to agree with the conclusion of the learned trial Judge that the appellant had inflicted knife injuries on the person of the complainant with the intention to cause her death. Thus, the conviction u/s 307 IPC cannot be sustained. Be that as it may, the fact remains that there is ocular evidence on the record that the appellant did inflict some knife injuries on the person of the complainant Farmida Begum. Therefore, we find him guilty of causing hurt to the complainant with a sharp object i.e. knife.

In view of the above, while holding the appellant guilty of having caused simple hurt to the complainant with a knife, we set aside the conviction of the appellant u/s 307 IPC and convict him u/s 324 IPC.

Now coming to the sentence, considering the nature of offence committed by the appellant, we sentence him to undergo RI for a period of three years.

From the nominal roll placed on record, it transpires that the appellant has already undergone incarceration in the instant case for a period of more than seven years. Therefore, there is no need to direct his arrest for undergoing the sentence.

Appeal is disposed of accordingly.

Appellant is on bail. His bail bond and surety bond stand discharged and cancelled.