Delhi District Court
State vs Jafar Ali on 1 February, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28248/2016)
FIR No. 325/2012
Police Station Burari
Charge-sheet filed under Section 307 IPC.
Charge framed against accused under 307 IPC.
Section.
Convicted under Section. 325 IPC.
State Versus Jafar Ali,
S/o Sh. Seikh Tahir,
R/o Nausad Ka Makaan,
Gali No. 5, Sangam Vihar, Burari,
Delhi-110084.
Permanent Address:-
Village Pokhariya Tola,
Baldobe, PS Arariya,
District Arariya, Bihar.
...Accused.
Date of Institution of case 03.04.2013
Date of Arguments 21.01.2025
Judgment reserved on 21.01.2025
Judgment pronounced on 01.02.2025
Decision Convicted
JUDGMENT
1. Accused Jafar Ali is facing trial for the offence punishable
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 1 of 39
under Sec. 307 IPC. The story of the prosecution is that on
25.12.2012 at about 06:30 pm at Jhuggi of Shyamsundar, Jal
Board, Delhi-110084, accused Jafar Ali caused injury on the
person of Akhilesh with such intention and in such circumstances
that, if by that act he had caused the death of above said
Akhilesh, he would have been guilty of murder.
2. The brief facts which are borne out from the record of the
case are that on 25.12.2012, on receiving of DD No. 23A, Ex.
PW-22/A regarding quarrel at Pump House, Delhi Jal Board,
Burari, Delhi, PW-22 IO/Inspector Naveen Kumar along with
PW-10 HC Shyam Pal went to the spot of incident i.e. Pump
House, Jal Board, Main Road Burari, Delhi, where PW-12 Ct.
Vinod and PW-14 ASI Subhash were present and who had
already apprehended accused Jafar Ali, who was under the
influence of alcohol. Thereafter, it was revealed that accused
Jafar Ali had caused injury to one person who had been shifted to
hospital by PCR. PW-22 IO/Inspector Naveen Kumar searched
the spot of incident and found that blood was scattered at
different places. Thereafter, PW-22 IO/Inspector Naveen Kumar
got inspected the spot of incident through Mobile Crime Team.
PW-22 IO/Inspector Naveen Kumar also seized empty Can and
bottles of beer/whiskey scattered on the ground of Pump House
premises, earth control and blood stained earth control, blood on
gauze, one pair of black colour sandal from the spot. Thereafter,
Ct. Rakesh brought DD No. 24A, Ex. PW-9/A regarding taking
the injured to Trauma Centre. Thereafter PW-22 IO/Inspector
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State Vs. Jafar Ali Page No. 2 of 39
Naveen Kumar along with Ct. Vinod and Ct. Shyam Pal went to
Trauma Center after leaving the accused in the custody of Ct.
Rakesh, where he collected MLC of injured who was unfit for
statement and he also seized blood sample of injured. Thereafter
PW-22 Inspector Naveen Kumar returned to the spot of incident
where he recorded the statement of Guard namely Sh. Shyam
Sundar, Ex. PW-5/A, prepared rukka, Ex. PW-22/C and got
registered the present FIR at PS Burari through Ct. Rajesh.
IO/PW-22 Inspector Naveen Kumar also prepared site plan, Ex.
PW-22/D at the instance of PW-5/complainant Shyam Sundar.
Thereafter IO arrested accused Jafar Ali in the present case,
conducted his personal search and recorded his disclosure
statement. During investigation, accused also pointed out the spot
where they consumed liquor and hot arguments ensued between
him and injured and the spot where he assaulted the injured.
During investigation, IO also collected the Radiology Report and
NCCT Head Report of injured from Trauma Centre and obtained
opinion about nature of injuries as ‘grievous’ from concerned
doctor. During investigation, IO also collected PCR form, sent
the exhibits to FSL and collected FSL report. On completion of
investigation, charge-sheet was filed by the IO before the court
through SHO.
3. Vide order dated 19.03.2013, copy of the charge-sheet
under Section 207 Cr.P.C was supplied to the accused by the
court of Ld. MM and vide order dated 02.04.2013, the case was
committed to the Court of Sessions under Sec. 209 Cr.P.C.
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State Vs. Jafar Ali Page No. 3 of 39
4. Vide order dated 04.07.2013 the Ld. Predecessor was
pleased to frame charge under Sec. 307 IPC against accused to
which he pleaded not guilty and claimed trial.
5. To prove its case, prosecution has examined 23 witnesses.
The testimonies of prosecution witnesses along with its nature
has been discussed briefly in the following paragraphs.
6. PW-1 Dr. Satyendra Kumar, CMO, LNJP Hospital deposed
that on 25.12.2012, he was posted as CMO at Sushruta Trauma
Centre, Delhi. He further deposed that on that day at around
08:55 pm, one unknown patient, aged about 35 years was
brought to the hospital by HC Manik Chand Tiwari of PCR with
alleged history of physical assault. He further deposed that he
examined the patient and prepared the MLC No. 158690 dated
25.12.2012, Ex. PW-1/A in this respect. He also deposed that he
referred the patient to Neuro Surgery, General Surgery & Ortho
Surgery for further examination. In his cross-examination, he
deposed that patient was unconscious at that time.
7. PW-2 Sh. Zakir Ali, deposed that in the year 2012, he was
residing at Jal Board, Pump House, Burari, Delhi. He further
deposed that on 25.12.2012 when he came back to Jal Board
from his work i.e. from Mukharjee Nagar at about 07:00 pm,
police was present there. He further deposed that he was forcibly
taken by the police to PS Burari where he was given beatings by
Police and he was forced by the police to make statement that he
had seen accused Jafar Ali with the injured to whom accused
Jafar Ali attacked accordingly, under pressure of the police, he
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gave this statement to the Police in PS Burari. This witness was
cross-examined by Ld. Addl. PP for the State but still he did not
support the case of prosecution. In his cross-examination, he
deposed that he had not seen accused Jafar Ali giving beatings to
anyone on 25.12.2012. He deposed that police had written his
statement under Sec. 161 Cr.PC on its own and he had not made
such statement.
8. PW-3 Sh. Rahul Sharma, deposed that on 25.12.2012 he
was present at his house and he received a telephone call made
by labour contractor accused Jafar Ali who informed him that a
quarrel took place with him and police had taken him to Police
Station. He further deposed that he made a call to his employer
Sh. Sunil Anand and informed about the call made by accused.
He further deposed that he requested his employer Sh. Sunil
Anand to provide a vehicle for going to PS but he refused to
provide the same. This witness was cross-examined by Ld. Addl.
PP for the State in which he admitted that accused Jafar Ali made
a call to him by his mobile no. 8447199786 at around 07:30-
07:45 pm and requested him to provide the JCB or any other
vehicle. He also admitted that he refused to provide the JCB in
the night and also asked about the purpose of demanding the
JCB. He also admitted that accused Jafar Ali informed him that a
quarrel took place with him and he wanted to remove the injured
by the JCB. He also admitted that on receiving information by
employer Sh. Sunil Anand he called him and he sent the
Supervisor Shashi Kant to Pump House. He also admitted that he
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State Vs. Jafar Ali Page No. 5 of 39
came to know that accused Jafar Ali tried to kill one Akhilesh
and he was admitted in the hospital. In his cross-examination, he
admitted that when he had received the phone call from accused
Jafar Ali from his phone no. 8447199786 at that time he was in
Police Station. He denied the suggestion that accused Jafar had
stated him that he took quarrel with the police. He also deposed
that accused Jafar Ali had informed him that he had been falsely
implicated by the Police and he had been falsely arrested by them
and he had not taken any quarrel with any person namely
Akhilesh.
9. PW-4 Sh. Sunil Anand, deposed that he was a Government
Contractor and was running a firm in the name of Kukhrain
Builders. He further deposed that on 25.12.2012 in the evening,
he received a telephone call made by Rahul Sharma who
informed him that labour contractor Jafar was taken by the
Police. He further deposed that Rahul Sharma demanded a
vehicle for going to the police station. He further deposed that he
refused to provide the vehicle and on the same night he visited
the police station Burari where accused Jafar was in Police
Station and police did not make any inquiry from him. This
witness was cross-examined by Ld. Addl. PP for the State in
which he denied the suggestion that he had stated before the
police that Rahul Sharma informed him that contractor Jafar Ali
was demanding a vehicle as he had quarrled with one person. He
admitted that he came to know that Jafar Ali caused injury to one
person who was admitted in the hospital. He also admitted that
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State Vs. Jafar Ali Page No. 6 of 39
accused Jafar Ali was his labour contractor in the year 2012. This
witness was confronted with his statement recorded under Sec.
161 Cr.PC, Ex. PW-4/A on various points. In his cross-
examination, he admitted that accused Jafar Ali was not working
with them since the day of his arrest and after his release on bail,
he was working somewhere else.
10. PW-5 Sh. Shyam Sunder is the complainant in the present
case. He deposed that two years ago, on the day of incident, it
was winter season and he went to the market in the evening hour.
He further deposed that when he returned from the market, he
saw that there was gathering at the gate of Pump House, Jal
Board at main Road Burari and while he was making inquiry
about the gathering, meanwhile police official came and made
inquiry from him. He furteher deposed that after that he was
taken to Police Station by the Police and he was detained there
for three hours. This witness was cross-examined by Ld. Addl.
PP for the State in which he deposed that he knew accused Jafar
Ali but he did not know Akhilesh. He denied the suggestion that
on the day of incident when he came back from the market, he
saw accused Jafar Ali was consuming liquor in his jhuggi with
one person and accused was calling him as Akhilesh. He denied
the suggestion that he thought that accused came to take pipe
then he asked his employer Sunil Anand about the same but he
refused to give the pipe to Jafar. He also denied the suggestion
that after some time there was hot altercation between Jafar Ali
and Akhilesh and Jafar stated that he will kill him and then he
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State Vs. Jafar Ali Page No. 7 of 39
asked both of them to go away. He also denied the suggestion
that from his jhuggi accused Jafar Ali and Akhilesh went away to
the back side of the Pump. He also denied the suggestion that he
had heard the noise ‘bachao-bachao’ and he went there and saw
that on Akhilesh was lying in injured condition on the ground and
accused Jafar Ali was running. He also denied the suggestion that
he chased the accused Jafar and apprehended him at the gate with
the help of two police officials and handed over the accused Jafar
Ali to the police. He also denied the suggestion that accused Jafar
caused injury to Akhilesh with the intention to kill him. He also
denied the suggestion that accused Jafar Ali was arrested by the
police in his presence. This witness was confronted with his
statement recorded under Sec. 161 Cr.PC, Ex. PW-5/A on various
points. However, he admitted his signatures on ducuments Ex.
PW-5/A & Ex. PW-5/B but he deposed that he had signed the
documents on asking of police. In his cross-examination, he
admitted that he was working with Khukhrain Builder and
accused was not working with Khukhrain Builder after his arrest
and release on bail i.e. for the last two years and he was working
with some one else.
11. PW-6 Sh. Shashi Kant Dubey, deposed that he did not
remember the date, month and year but it was month of August,
2013-14, he received a telephonic call from Rahul, Engineer of
his company and he directed him to go to the Pump House,
Burari. He further deposed that he received a call made by Sunil
Anand, Contractor and he made request to call the police as
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State Vs. Jafar Ali Page No. 8 of 39
quarrel took placed in the Pump House, Burari. He further
deposed that after that he made a call to the Police and went to
the Police Station where he informed that police went there. This
witness was cross-examined by Ld. Addl. PP for the State in
which he deposed that he did not remember whether incident
took place on 25.12.2012 due to lapse of time. He admitted that
he had been working as a Supervisor in Kokrain company since
2004. He denied the suggestion that after informing the police, he
reached at Pump House on next day of incident. He denied the
suggestion that after informing the police, he reached at the
Pump House where he came to know that Contractor Jafar Ali
had brutally beaten Akhilesh and had tried to kill him. This
witness was not cross-examined on behalf of accused despite
opportunity given to him.
12. PW-7 Sh. Akhilesh is the victim/injured in the present
case. He deposed that on 25.12.2012 he had gone to Karawal
Nagar Extension where some work relating to water supply was
in progress. He further deposed that accused Jafar Ali met him
there and told him that he was a contractor and that he would
arrange work for him. He further deposed that he offered liquor
to him to which he agreed. He also deposed that he took him to
Jal Board, Burari on his motorcycle and he consumed more that
sufficient liquor offered by accused and thereafter he started
making inquiry. He further deposed that accused asked him about
water pipe which had already been stolen but he told him that he
did not know anything about the water pipe and on that accused
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State Vs. Jafar Ali Page No. 9 of 39
started beating him and during the said beating his head hit with
the wall and he sustained head injuries on his forehead. He
further deposed that accused Jafar Ali ran away from the spot and
one police official namely Naveen reached at the spot and took
him to the hospital. This witness was cross-examined by Ld.
Addl. PP for the State in which he admitted that accused Jafar
had offered liquor to him and since he had not taken liqour for
last few days so he accompanied him on his motorcycle and
reached at Wine Shop at Burari where accused got him some
liquor consumed and thereafter accused took him to Jal Board
Burari on his motorcycle. He also admitted that accused Jafar Ali
asked him about the pipe stolen from there and he refused to had
any knowledge about the said pipe and on that accused started
abusing him. He also admitted that during the said abuses uttered
by accused he went towards back side and in the mean time
accused hit his head with the wall and he received head injuries
and became unconsicious. He also admitted that he had stated the
abovesaid facts in his statement recorded by IO/SI Naveen
Kumar. In his cross-examination, he admitted that prejudice to
the rights of accused, he had received a Demand-draft of Rs.
40,000/- as compensation which he had already encashed. He
also deposed that he did not remember as to whether any liquor
was with accused when they reached at Jal Board, Burari as he
was under the influence of liquor due to consuming much liqour.
He further deposed that accused took him to a room at Jal Board,
Burari but he did not remember as to which side of wall his head
was hit by the accused as he was under the influence of liquor.
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State Vs. Jafar Ali Page No. 10 of 39
He denied the suggestion that accused Jafar had never met him at
Karawal Nagar or that accused did not get the liqour from the
Wine Shop or that accused had taken him to Jal Board Burari or
that accused had not hit his head to the wall.
13. PW-8 ASI Bheem Singh, was the Duty Officer who proved
the copy of present FIR, Ex. PW-8/A, endorsement on rukka Ex.
PW-8/B and certificate under Sec. 65B of The Evidence Act, Ex.
PW-8/C. In his cross-examination, he deposed that the computer
operator recorded the FIR on his instructions.
14. PW-9 Ct. Rakesh, has proved DD No. 24A, Ex. PW-9/A
regarding quarrel. He further deposed that after receiving the said
DD, he went to the spot of incident i.e. Pump House, Burari and
handed over the same to IO/SI Naveen. He further deposed that
IO left the spot by leaving him at the spot to look after the scene
of crime and after sometime, IO came back and recorded the
statement of Chowkidar Sh. Shyam Sundar, prepared rukka by
making his endorsement on the same and handed over the same
to him for getting the FIR registered. He further deposed that
after registration of FIR, Ex. PW-8/A, he came at the spot and
handed over the copy of FIR and original rukka to IO/SI Naveen.
In his cross-examination, he deposed that when he reached at the
spot, IO/SI Naveen along with Ct. Vinod and Ct. Shyam Pal was
present. He denied the suggestion that he had not visited the spot
or that all the writing work was done at the Police Station.
15. PW-10 HC Shyam Pal, deposed that on 25.12.2012 at
about 08:15 pm, IO/SI Naveen received DD No. 23A regarding
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State Vs. Jafar Ali Page No. 11 of 39
quarrel and thereafter he along with IO went to the spot of
incident i.e. Pump House, Delhi Jal Board, Burari where HC
Subhash alongwith Ct. Vinod produced accused Jafar Ali and
informed that accused had beaten a person mercilessly. He
further deposed that accused was having injury on his face and
he was under the influence of liquor. He narrated about the
proceedings conducted by the IO at the spot viz. inspection of
spot of incident by Mobile Crime Team and seizure of blood in
gauze, blood stained soil, earth control sample and sandal and
seizure of empty Can of beer from the spot of incident and
proved its seizure memos as Ex. PW-10/A & Ex. PW-10/B. He
further deposed that IO received DD No. 24A from Ct. Rakesh
and thereafter he along with IO went to Trauma Centre where the
victim/injured was found unfit for statement. He further deposed
that concerned doctor handed over the blood sample of victim
and sample seal which was seized by IO vide seizure memo Ex.
PW-10/C. He narrated about recording of statement of
Chowkidar Sh. Shyam Sundar, preparation of rukka after making
endorsement on his statement and registration of present FIR at
PS Burari, by the IO. He proved arrest memo, personal search
memo and disclosure statement of accused vide memo Ex.
PW-10/D, Ex. PW-5/A & Ex. PW-10/E. He also proved pointing
out memo of spot of incident and pointing memo of place where
accused along with victim had consumed liquor as Ex. PW-10/F
& Ex. PW-10/G. In his cross-examination, he deposed that SI
Naveen or he himself did not ask how HC Subhash and Ct. Vinod
were present at the spot. He also deposed that no injured/victim
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State Vs. Jafar Ali Page No. 12 of 39
was found on the spot. He denied the suggestion that accused
was not present at the spot and was detained/arrested by the IO
from the Petrol Pump, Burari and was falsely implicated in the
present matter. He also denied the suggestion that no disclosure
statement was given by the accused and the signatures of accused
was obtained by the IO on the blank paper and later on converted
into the disclosure statement.
16. PW-11 WCt. Snehlata, was the Operator in the Control
Room of Police Headquarter. She deposed that at about 08:10
pm, she received a call from mobile no. 9810030716 regarding
quarrel at Burari Petrol Pump. She proved PCR form in this
regard as Ex. PW-11/A. This witness was not cross-examined on
behalf of accused despite opportunity given to him.
17. PW-12 Ct. Vinod, deposed that on 25.12.2012, he along
with HC Subhash was performing beat constable duty in the area
of Harit Vihar. He further deposed that at about 08:00 pm, when
they both reached Pump House, Jal Board, Burari, he saw that
one person was approaching towards them by running and one
more person was chasing that person and the said person was
shouting. He further deposed that he with the help of HC
Subhash, he apprehended the person who was running at the gate
of Jal Board and on inquiry, his name was revealed as Jafar Ali
and the name of the person who was chasing Jafar Ali was
revealed as Chowkidar Shyam Sundar. He further deposed that
Shyam Sundar informed that Jafar Ali had beaten a person very
badly and the injured was removed to hospital by PCR official.
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State Vs. Jafar Ali Page No. 13 of 39
He further deposed that in the meanwhile SI Naveen Kumar
along with Ct. Shyam Pal reached at the spot and he produced
accused Jafar Ali before SI Naveen. He further deposed that he
noticed that there was injury on the face of Jafar Ali and on
direction of IO, he took accused Jafar Ali to Aruna Asaf Ali
Hospital for his medical examination and thereafter he returned
at the spot. He narrated about the recording of statement of
Chowkidar Shyam Sundar by IO and registration of FIR on its
basis. In his cross-examination, he admitted that by the time, they
had apprehended the accused, statement of any person was not
recorded and FIR was not registered by that time. He denied the
suggestion that he did not join the investigation of the present
case at any point of time or that accused was not apprehended
from the place and in the manner as deposed by him.
18. PW-13 Sh. Parvez, he deposed that on 25.12.2012 he was
working as Chowkidar at Khokhrain Company situated in the
area of Karawal Nagar and on that day, one person, namely
Akhilesh came at the company during day time and he asked him
to take water pipe during late night hours and he also offered
money to him but he refused for the same and he informed
Munshi/Thekedar Jafar Ali through mobile. He further deposed
that at about 03:00 pm, he had seen Akhilesh and Jafar Ali at the
factory and they both were talking with each other and went
away from there. In his cross-examination, he deposed that he
had not seen accused Jafar and Akhilesh together at any point of
time on 25.12.2012 as well as prior to that. He also deposed that
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State Vs. Jafar Ali Page No. 14 of 39
his statement was not recorded by the police officials or that he
was not inquired upon by the police officials.
19. PW-14 ASI Subhash, deposed that on 25.12.2012 in the
evening, he along with Ct. Vinod was on patrolling duty and at
about 07:45 pm, they reached at Pump House near Jal Board,
Burari where they saw a person having injury on his face running
and chowkidar of Pump House was chasing him by shouting
‘pakro-pakro’. He further deposed that they apprehended the
abovesaid person and on asking, he disclosed his name as Jafar
Ali. He further deposed that smell of liquor was coming from the
mouth of accused Jafar Ali. He further deposed that IO/SI
Naveen Kumar also reached there and they handed over the
accused to him and on inquiry conducted by IO, chowkidar of
Pump House informed that accused had beaten a person
mercilessly inside the Delhi Jal Board. In his cross-examination,
he deposed that they apprehended accused at about 08:00 pm and
traffic was moving on the road at that time. He also deposed that
statement of Ct. Vinod was not recorded in his presence. He
denied the suggestion that he had not apprehended the accused at
the abovesaid place.
20. PW-15 Ct. Inderjeet, was the Photographer at Mobile
Crime Team, Central. He deposed that he took 10 photographs of
spot of incident and out of which he proved nine photographs as
Ex. PW-15/A1 to Ex. PW-15/A9. He also proved negatives of
photographs as Ex. PW-15/B1 to Ex. PW-15/B10. In his cross-
examination, he deposed that he did not remember the name of
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State Vs. Jafar Ali Page No. 15 of 39
police officials who beside the IO and the Crime Team were
present.
21. PW-16 Ct. Atar Singh, deposed that he received three
sealed exhibits from MHC(M) vide RC No. 6/21/13, Ex.
PW-16/A and he deposited the same at FSL Rohini vide
acknowledgment, Ex. PW-16/B. In his cross-examination he
deposed that there was no written order for taking the exhibits
with FSL and he was told orally.
22. PW-17 Ct. Nitin, deposed that on 25.12.2012 he was
posted as Duty Constable at Trauma Centre and on that day, at
about 08:55 pm, In-charge of PCR Van S-6, HC Manak Chand
got admitted one person, aged 35 years (name unknown) in the
hospital. He further deposed that he had given information of
admission of injured to PS Burari vide DD No. 24, Ex. PW-9/A.
This witness was not cross-examined on behalf of accused
despite opportunity given to him.
23. PW-18 HC Narender Singh, was the MHC(M) at PS
Burari. He proved entries made in register no. 19 & 21 as Ex.
PW-18/A and Ex. PW-18/B regarding deposit of case properties
in Malkhana and deposit of exhibits at FSL. He also proved
acknowledgment of FSL regarding deposit of exhibits as Ex.
PW-18/C. In his cross-examination, he denied the suggestion he
had not made entry in register no. 19 on 26.01.2012 or that he
had made entries later on.
24. PW-19 Inspector Devender, was the In-charge Mobile
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State Vs. Jafar Ali Page No. 16 of 39
Crime Team. He proved his detailed report Ex. PW-19/A. In his
cross-examination, he deposed that he did not remember if the
jhuggi was locked or not. He also deposed that he did not
remember if there was any guard outside the said jhuggi. He
denied the suggestion that no exhibits were found at the spot or
that he had mentioned false exhibits in his report.
25. PW-20 ASI Manik Chand, was the In-charge of PCR Van
Sugar Six. He deposed that on 25.12.2012 at about 08:15 pm, he
received a call regarding some quarrel at Burari. He further
deposed that he reached Burari Petrol Pump and came to know
that in front of the Petrol Pump, inside the Jal Board Pump
Complex, a quarrel had taken place. He further deposed that he
went there and found one person inside a Veranda in unconscious
condition. He further deposed that with the help of staff, injured
was taken to Sushruta Trauma Centre in PCR Van and got him
admitted there. In his cross-examination, he deposed that he did
not remember whether any public person was present at the spot
or not. He also deposed that at the Trauma Centre, duty constable
was informed regarding the admission of the injured. He also
deposed that he did not remember on which date his statement
was recorded by the IO.
26. PW-21 Dr. Ravikant Mankar, Sr. Resident (Surgery),
Sushruta Trauma Centre has proved his opinion regarding
nature of injury on the MLC No. 158690, Ex. PW-1/A as ‘simple’
from general surgical side. This witness was not cross-examined
on behalf of accused despite opportunity given to him.
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 17 of 39
27. PW-22 Inspector Naveen Kumar is the Investigating
Officer in the present case. He deposed that on 25.12.2012 on
receipt of DD No. 23A, Ex. PW-22/A regarding quarrel at Burari
Petrol Pump, he along with Ct. Shyam Pal went to the spot of
incident i.e. Pump House, Jal Board, Main Road Burari where Ct.
Vinod and HC Subhash had already apprehended one person
namely Jafar Ali who was under the influence of liquor and was
having minor injury on his face. He further deposed that during
inquiry, it was revealed that Jafar Ali had caused injury to one
person who had been shifted to hospital by PCR. He further
deposed that blood was found scattered at different points. He
narrated about the proceedings conducted by him at the spot viz.
inspection of spot of incident by Mobile Crime Team and seizure
of blood in gauze, blood stained soil, earth control sample,
sandal, empty Can of beer from the spot of incident. He further
deposed that he received DD No. 24A from Ct. Rakesh and
thereafter he along with Ct. Vinod and HC Shyam Pal went to
Trauma Centre where the victim/injured was found unfit for
statement. He further deposed the he seized blood sample of
victim along with sample vide seizure memo Ex. PW-10/C. He
also deposed that he got medically examined the accused vide
memo Ex. PW-22/B, recorded statement of Chowkidar Sh.
Shyam Sundar, prepared rukka, Ex. PW-22/C after making
endorsement on his statement and got the present FIR registered
at PS Burari. He also proved the site plan prepared at instance of
Sh. Shyam Sundar, Ex. PW-22/D, arrest memo of accused,
personal search memo and disclosure statement of accused vide
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 18 of 39
memos Ex. PW-10/D, Ex. PW-5/A & Ex. PW-10/E. He also
proved pointing out memo of spot of incident and pointing memo
of place where accused along with victim had consumed liquor
as Ex. PW-10/F & Ex. PW-10/G. He further deposed that he also
collected the Radiology Report, Ex. PW-22/E and NCCT Head
Report, Mark PW-22/1 of injured from Trauma Centre and
obtained opinion about nature of injuries as ‘grievous’ from
concerned doctor. He further deposed that he also collected PCR
form, Ex. PW-12/A, sent the exhibits to FSL and collected FSL
report, Ex. PW-22/F. He further deposed that he also obtained
finger prints of injured to ascertain his identity and collected
finger print report, Ex. PW-22/G. In his cross-examination, he
admitted that no fingerprints were obtained by him or Crime
team official from the bottle of liquor and Can of beer. He also
admitted that accused was not identified by the victim at any
point of time during the course of investigation. He also admitted
that accused had informed him that someone tried to steal the
material from the godown belonging to his owner. He admitted
that in his presence no breath analyzer test of accused was taken
by the doctors for confirming about consumption of liquor. He
also deposed that he could not say that accused was in drunken
condition or not. He denied the suggestion that no disclosure
statement was ever been given by the accused and he had
obtained the signature on blank paper and later on converted the
same into disclosure statement. He denied the suggestion that he
had not lifted any exhibit from the spot or that accused has been
falsely implicated or that he had not conducted the investigation
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 19 of 39
in fair manner. He denied the suggestion that he had created one
person namely Sh. Shyam Sundar for registration of a false case
against accused.
28. PW-23 Dr. Ajay Kumar Singh, deposed that on 30.01.2013
he was posted at Sushruta Trauma Centre and on that day he had
given the opinion regarding the nature of injuries on the MLC of
unknown, Ex. PW-1/A as ‘grievous’ in nature on the basis of CT
Scan Report, Mark-PW-22/I. In his cross-examination, he denied
the suggestion that he had given the opinion on MLC, Ex.
PW-1/A at the instance of IO as grievous in nature.
29. After closing of Prosecution Evidence, separate statement
of accused was recorded under Sec. 313 Cr.PC, wherein he
denied all the charges against him. Accused claimed that it was a
false case against him and the same was tried for the purpose of
workout of present case. He also stated that prosecution
witnesses were interested witnesses and some of them were
police witnesses and they had deposed against him for the work
out of present case without any rhyme and reasons.
30. After recording of statement of accused under Sec. 313
Cr.P.C, accused has examined one witness in his defence. The
testimony of sole defence witness has been discussed in brief as
under:-
31. DW-1 Mohd. Naimuddin, deposed that he was working as
petty Contractor for Delhi Jal Board during the period of year
2010-2015 and he was working on the site allotted to M/s Anand
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 20 of 39
@ Anant. He further deposed that accused was working with him
since his date of joining till 25.12.2012. He further deposed that
he heard about the arrest of accused Jafar Ali from his owner M/s
Anand @ Anant. He further deposed that one Mr. Akhilesh,
complainant of present case, met him on the day of Holi in
March 2013 and requested him to give him some work or job. He
further deposed that on his asking about the incident, he stated
that he had not made any complaint against the accused Jafar Ali
and he sustained injury as his head got hit on the wall in a Water
Pump area and he had not stated anything to the police. He
further deposed that he told that police gave assurance to him that
some amount might be given to him due to this incident by the
owner of the accused. In his cross-examination, he denied the
suggestion that Akhilesh had not told anything about the incident
to him. He admitted that he was not a summoned witness or that
he had come with accused.
32. Final arguments were advanced by Sh. Pankaj Kumar
Ranga, Ld. Addl. PP for the State and Sh. Anil Kumar Gupta, Ld.
Counsel for accused.
33. Ld. Addl. PP for the State argued that the prosecution has
proved its case beyond reasonable doubt and the prosecution
witnesses have supported the prosecution story and have
corroborated each other’s version. To substantiate his
submissions, he argued that accused was apprehended by the
police officials when he was running from the spot of incident
after committing the offence. He also argued that PW-7/injured
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 21 of 39
Sh. Akhilesh has narrated the incident in detail and he has
specifically deposed that he was given beatings by the accused
and his head was hit against the wall and since the head is a vital
and sensitive part of the body, the accused had the knowledge
that his act may cause death of PW-7/injured Sh. Akhilesh. He
also argued that PW-7/injured Sh. Akhilesh is a witness of
sterling quality and accused has failed to take any defence. He
also argued that the testimony of DW-1 Sh. Mohd. Naimuddin is
hearsay in nature and the said defence has not been taken by the
accused in the cross-examination of PW-7/injured Sh. Akhilesh
and hence the said defence taken by the accused is false. He also
argued that the all the proceedings have been duly proved by the
police witnesses and the prosecution witnesses are of the sterling
quality and hence accused should be convicted under Section 307
IPC.
34. Per Contra Ld. Defence Counsel argued that the
prosecution has miserably failed to prove its case beyond
reasonable doubt. To substantiate his point, he argued that PW-2
Sh. Zakir Ali, PW-5/complainant Sh. Shyam Sundar and PW-6
Sh. Shashi Kant Dubey have turned hostile. He also argued that
the testimony of PW-7/injured Sh. Akhilesh is suffering from
material contradictions and same cannot be relied upon. He also
argued that the prosecution has failed to prove that the accused
intended to kill PW-7/injured Sh. Akhilesh. He further argued
that even knowledge that such act may cause death cannot be
attributed to the accused as none of the doctors have deposed that
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 22 of 39
such injury could cause death. He also argued that since the
prosecution has failed to prove its case against accused beyond
reasonable doubts, accused should be acquitted for the offence
punishable under Sec. 307 IPC.
35. In the present case, charge under Sec. 307 IPC has been
framed against the accused. This Section has been elaborated as
under:-
307. Attempt to murder:-
Whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend
to ten years and shall also be liable to fine; and if hurt is cause to
any person by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is hereinbefore
mentioned.
Attempts by life convicts: When any person offending
under this section is under sentence of [imprisonment for life], he
may, if hurt is caused, be punished with death.
36. I have thoughtfully considered the arguments advanced,
perused the material available on record, scrutinized the evidence
led by the prosecution and gone through the relevant provisions
of law. I have also considered the judgments relied upon by the
Ld. Addl. PP for the State as well as Ld. Counsel for accused.
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 23 of 39
37. PW-5/complainant Sh. Shyam Sundar has turned hostile
and there is no other eyewitness of the alleged incident. In these
circumstances, the testimony of PW-7/injured Sh. Akhilesh has to
be appreciated as per the established principles of law regaring
the testimony of sole eyewitness/injured.
38. The first information regarding the incident was received
at PS Burari on 25.12.2012 at about 20:15 vide DD No. 23A, Ex.
PW-22/A. As per the contents of said DD, the information was
given by Lady Ct. Snehlata, 8062 PCR, that there was quarrel at
Burari Petrol Pump. PW-11 W/Ct. Sakuntala deposed that on
25.12.2012, she was posted as Operator at Control Room, Police
Headquarters and on that day, she received information regarding
quarrel at Burari Petrol Pump from mobile phone no.
9810030716. She proved the PCR Form, Ex. PW-11/A. As per
the contents of PCR Form, Ex. PW-11/A, there was a quarrel
between thekedar and labourer after consuming liquor and the
thekedar had hit the head of labourer against the wall and the
name of injured was Akhilesh Kumar and he was being taken to
hospital. PW-9 Ct. Rakesh proved DD No. 24A, Ex. PW-9/A. As
per the contents of DD No. 24A, Ex. PW-9/A, the information
was given by Duty Constable Nitin posted at Trauma Centre that
one unknown person, aged about 35 years was brought to Trauma
Centre in injured condition by PCR Sugar-6 Incharge HC Manik
Chand Tiwari. PW-17 Ct. Nitin deposed that at about 08:55 pm,
Incharge of PCR Van S-6, HC Manik Chand got admitted one
person, aged about 35 years at Trauma Centre, Civil Lines. Thus,
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 24 of 39
the prosecution has successfully proved that a quarrel had taken
place between thekedar and injured/labourer Sh. Akhilesh Kumar
at Jal Board, near Petrol Pump, Burari and Sh. Akhilesh Kumar
has sustained injuries on his head.
39. PW-7/injured Sh. Akhilesh deposed that on 25.12.2012, he
had gone to Karwal Nagar Extension where accused Jafar Ali
met him and he told him that he was a contractor and he would
arrange work for him. He also deposed that accused offered
liquor to him to which he agreed and thereafter he took him to Jal
Board, Burari on motorcycle and at that time he had consumed
more than sufficient liquor offered by accused. Thus, as per
version of PW-7/injured Sh. Akhilesh, he and the accused had
consumed liquor. As per MLC of accused, Ex. PW-22/B, there
was smell of alcohol in the breath of accused. PW-10 HC Shyam
Pal as well as PW-22 IO/Inspector Naveen Kumar deposed that
six empty quarter bottles of liqour (two quarter bottles of Green
Label Whiskey and three quarter bottles of Party Special
Whiskey and one Aristocrat Primium) and one empty beer Can
were lying outside the jhuggi situated near the tubewell at Pump
House, Delhi Jal Board, Burari which were seized by the IO vide
seizure memo Ex. PW-10/B. Thus, PW-10 HC Shyam Pal and
PW-22/IO Inspector Naveen Kumar have corroborated the
version of PW-7/injured Sh. Akhilesh that the liquor was
consumed at the the spot of incident. Thus, the prosecution has
proved that PW-7/injured Sh. Akhilesh and accused had
consumed liquor at the spot of incident.
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 25 of 39
40. PW-7/injured Sh. Akhilesh deposed that accused asked
him about water pipe which had already been stolen but he told
him that he did not know anything about the water pipe and
thereafter accused started beating him. PW-13 Sh. Parvez who
was working as Chowkidar at the Khukhrain company where
accused was working as a contractor, deposed that on
25.12.2012, PW-7/injured Sh. Akhilesh came to the company
during day time and asked him to take water pipe during late
night hours and he also offered money to him but he refused the
same and he informed the Munsi/Thekedar accused Jafar Ali. He
also deposed that on that day at about 03:00 pm, he has seen
accused Jafar Ali and Akhilesh together, though, he resiled from
the same in his cross-examination. Thus, the prosecution has
established the fact that there was some issue of theft of water
pipes belonging to accused by PW-7/injured Sh. Akhilesh and
thus, the prosecution has proved the motive for the commission
of offence which is relevant under Sec. 8 of The Indian Evidence
Act, 1872.
41. PW-7/injured Sh. Akhilesh deposed that accused started
beating him and during the said beatings, his head was hit with
the wall due to which he sustained injuries on his forehead and
thereafter accused Jafar ran away from the spot. PW-1 Dr.
Satender Kumar has proved MLC of PW-7/injured Sh. Akhilesh
exhibited as Ex. PW-1/A. As per MLC, Ex. PW-1/A of injured
Sh. Akhilesh, there was degloving wound with laceration
approximately 10 cm x 6 cm on forehead and frontal region of
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 26 of 39
skull. He deposed that he examined the patient and thereafter he
referred the patient for neuro surgery, general surgery and ortho
department. In his cross-examination, he also deposed that
patient was unconscious at that time. PW-7/injured Sh. Akhilesh
has put specific allegations against the accused for causing said
injuries to him and he was found at the spot mentioned by him by
PW-20 ASI Manik Chand. PW-7/injured Sh. Akhilesh in his
cross-examination admitted that he had received demand-draft in
sum of Rs. 40,000/- from the accused as compensation. In the
cross-examination of PW-7/injured Sh. Akhilesh, accused has
failed to put any dent on his version. Thus, the prosecution has
successfully proved that the said injuries on the person of
PW-7/injured Sh. Akhilesh were caused by accused Jafar Ali and
none else.
42. PW-12 Ct. Vinod deposed that on 25.12.2012, he along
with PW-14 HC Subhash (now ASI) was performing beat
constable duty in the area of Harit Vihar and at about 08:00 pm
when they both reached Pump House, Jal Board, Burari, he saw
one person who was approaching them by running and other
person was chasing the said person and was shouting. He further
deposed that he with the help of PW-14 ASI Subhash
apprehended that person who disclosed his name as Jafar Ali and
the person chasing accused Jafar Ali revealed his name as
Chowkidar Shyam Sundar (PW-5). He also deposed that PW-5
Shyam Sundar told them that accused had beaten a person very
badly. He further deposed that there was injuries on the face of
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 27 of 39
accused Jafar Ali. PW-14 ASI Subhash has also corroborated the
version of PW-12 Ct. Vinod. The act of apprehension of accused
by PW-12 Ct. Vinod and PW-14 ASI Subhash when accused was
running from the spot after committing the offence is relevant as
‘res-gastae’ under Sec. 6 of The Indian Evidence Act, 1872.
PW-22/IO Inspector Naveen Kumar deposed that he along with
Ct. Shyam Pal reached the spot i.e. Pump House, Jal Board
where Ct. Vinod and HC Subhash produced accused Jafar Ali to
him and at that time accused was drunk and was having minor
injuries on his face. In the cross-examination of PW-12 Ct.
Vinod, PW-14 ASI Subhash and PW-22/IO Inspector Naveen, the
accused has not denied his presence near the spot of incident
from where he was apprehended nor he has explained the cause
of injuries on his person.
43. PW-5/complainant Sh. Shaym Sundar is the complainant
in the present case and the FIR was registered only on his
complaint, Ex. PW-5/A which was duly signed by him and he
had named the accused in the said complaint and at that time
PW-7/injured Sh. Akhilesh was in unconscious condition. Thus,
the defence taken by the accused in answer to question nos. 24 &
25 put to him under Sec. 313 Cr.PC that he was falsely
implicated for the purpose of workout this case is without any
substance. Similarly, the testimony of DW-1 Mohd. Naimuddin
that PW-7/injured Sh. Akhilesh had sustained the injury as his
head got hit on the wall in water pump area and he had not stated
anything to the police is hearsay evidence which is not
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 28 of 39
admissible under the provisions of Indian Evidence Act, 1872
and since injured PW-7/injured Sh. Akhilesh has put specific
allegations against the accused for causing the said injury and
have been corroborated by PW-22 IO/Inspector Naveen by
deposing that he recorded statement of PW-7/injured Sh.
Akhilesh, the testimony of DW-1 Mohd. Naimuddin does not
have any evidentiary value.
44. PW-7 Sh. Akhilesh is the injured in the present case. He
has specifically deposed against the accused with respect to the
injuries caused on his person. There is complete consistency in
his statement given to the police and his testimony recorded in
the Court. The testimony of the injured witness is to be
appreciated as per the law laid down by the Hon’ble Supreme
Court of India in this regard.
45. Hon’ble Supreme Court of India in judgment titled as
Jarnail Singh & Ors. Vs. State of Punjab cited as (2009) 9 SCC
719 while dealing with the evidentiary value of injured witness
has observed as under:-
“28. Darshan Singh (PW-4) was an injured
witness. He had been examined by the
Doctor. His testimony could not be brushed
aside lightly. He had given full details of the
incident as he was present at the time when
the assailants reached the tubewell. In
Shivalingappa Kallayanappa Vs. State of
Karnataka, this Court has held that theFIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 29 of 39
deposition of injured witness should be relied
upon unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies, for
the reason that his presence on the scene
stands established in case it is proved that he
suffered the injury during the said incident.
46. In ‘State of U.P Vs. Kishan Chand‘, a similar view has
been reiterated observing that the testimony of stamped witness
has its own relevance and efficacy. The fact that the witness
sustained injuries at the time and place of occurrence, lends
supports to its testimony that he was present during the
occurrence. In case the injured witness is subjected to lengthy
cross-examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan Vs. State of
Haryana).”
47. Nothing has been brought on record by the accused to put
any dent on the version of PW-7/injured Sh. Akhilesh. The nature
of injury on the person PW-7/injured Sh. Akhilesh has been
opined to be ‘grievous’ in nature on the basis of CT Scan by
PW-23 Dr. Ajay. In these circumstances, it cannot be said that
PW-7/injured Sh. Akhilesh had named the wrong person other
than the person who caused said grievous injury on his person.
Applying the law laid down by Hon’ble Supreme Cour of India
in Jarnail Singh & Ors. (Supra) & Kishan Chand (Supra), this
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 30 of 39
Court is of considered opinion that the testimony of PW-7/injured
Sh. Akhilesh cannot be discarded without any ground and hence
the testimony of PW-7/injured Sh. Akhilesh being injured is
reliable.
48. To prove the prosecution case, the testimony of the
prosecution witnesses must be reliable. It is not the quantity but
the quality of the testimony of the witness that helps a court in
arriving at a conclusion in any case. The test in this regard is that
the evidence adduced by the parties must have a ring of truth. In
a criminal trial, the prosecution has to prove the case beyond
reasonable doubt and it is possible only when the testimony of
prosecution witnesses is cogent, trustworthy and credible. To
secure a conviction of accused, the testimony of the prosecution
witness must be of sterling quality.
49. In case titled as ‘Rai Sandeep @ Deepu Vs. State (NCT
of Delhi), (2012) 8 SCC 21′, it is held that :
“22. In our considered opinion, the
“sterling witness” should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its face
value without any hesitation. To test the
quality of such a witness, the status of the
witness would be immaterial and what would
be relevant is the truthfulness of the statementFIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 31 of 39
made by such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till the
end, namely, at the time when the witness
makes the initial statement and ultimately
before the court. It should be natural and
consistent with the case of the prosecution
qua the accused. There should not be any
prevarication in the version of such a witness.
The witness should be in a position to
withstand the cross-examination of any length
and howsoever strenuous it may be and under
no circumstances should given room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have corelation with
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of very
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain ofFIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 32 of 39
circumstances to hold the accused guilty of
the offence alleged against him. Only, if the
version of such a witness qualifies the above
test as well as all other such similar tests to
be applied, can it be held that such a witness
can be called as a “sterling witness’ whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve
the other supporting materials for holding the
offender guilty of the charge alleged.”
50. Similarly, in case of Ramdas Vs. State of Maharashtra,
(2007) SCC 170, it is held that :
“23. It is no doubt true that the conviction in a
case of rape can be based solely on the testimony
of the prosecutrix, but that can be done in a case
where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstancesFIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 33 of 39
with cast of shadow of doubt over her veracity. It
the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of
conviction solely on the basis of her testimony. In
the instant case we do not fine her evidence to be
of such quality.”
51. Thus, from the above said judgments, it is clear that the
version of the witness should be natural one and it must
corroborate the prosecution case. Such version must match with
the testimony of other prosecution witnesses. It should be of such
a quality that there should not be any shadow of doubt upon it.
52. Applying the law laid down by the Hon’ble Apex Court in
Rai Sandeep (supra) and Ramdas (Supra), this court is of the
considered opinion that injured PW-7 Sh. Akhilesh is witness of
sterling quality as his version is natural and he has also withstood
the test of cross examination. This court is of the considered
opinion that the testimony of injured PW-7 Sh. Akhilesh is clear,
cogent, credible, trustworthy and consistent and has been
corroborated by the other prosecution witnesses and medical
evidence on record and the circumstances.
53. Ld. Counsel for accused has argued that accused had no
intention to kill PW-7/injured Sh. Akhilesh nor any knowledge
can be attributed to him that such injury may cause death of
PW-7/injured Sh. Akhilesh and hence case does not fall within
the purview of Sec. 307 or 308 IPC. PW-7/injured Sh. Akhilesh
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 34 of 39
has deposed that accused started beating him and during said
beatings, his head hit with the wall due to which he sustained
injuries on his forehead. PW-7/injured Sh. Akhilesh has not
deposed that accused hit his head with the wall again and again
nor he has deposed that the accused used any kind of weapon,
danda or pipes to beat him. PW-7/injured Sh. Akhilesh has also
not deposed that accused wanted to kill him. Causing grievous
injury to someone cannot itself attract Sec. 307 IPC. PW-3 Sh.
Rahul Sharma, deposed that accused Jafar made a phone call to
him on 25.12.2012 at about 07:30-07:45 pm and he demanded
JCB or any other vehicle from him and told him that quarrel took
place with him and he wanted to remove the injured through JCB
or any other vehicle. Thus, from the facts and circumstances of
the case and evidence adduced by prosecution, it has not come on
record that accused wanted to kill PW-7/injured Sh. Akhilesh or
he had any knowledge that by such act, the death of injured may
be caused. However, the prosecution has successfully proved that
the accused had caused injuries on the person of PW-7/injured
Sh. Akhilesh. PW-23 Dr. Ajay has proved CT Scan Report, Ex.
PW-22/1 and has also opined the nature of injury as grievous in
nature on MLC of PW-7/injured Sh. Akhilesh. As per NCCT
Head Report of injured marked as PW-21/1, there was fracture in
left frontal bone. Thus, the injury falls within the purview of
clause seventhly of Sec. 320 of IPC and hence the injury was
grievous in nature. It has already come on record that accused
and PW-7/injured Sh. Akhilesh were drunk at the time of
incident. The accused had consumed liquor on his own and
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 35 of 39
voluntarily drunkenness is not an defence under Sec. 85 of The
Indian Penal Code. Thus, the prosecution has successfully proved
the grievous injury on the person of PW-7/injured Sh. Akhilesh
was voluntarily caused by accused. However, the prosecution has
failed to prove the ingredients of Sec. 299 & 300 IPC as nothing
has been brought on record that the accused had the intention to
kill the PW-7/injured Sh. Akhilesh or that he had any knowledge
that such injuries may cause death of PW-7/injured Sh. Akhilesh
as none of the doctors have deposed so. Thus, the case of the
prosecution does not fall within the purview of Sec. 307 or 308
IPC. In the present case charge has been framed under Sec. 307
IPC only and in these circumstances recourse provided under
Sec. 222 of The Code of Criminal Procedure may be taken. Sec.
222 Cr.PC reads as under:-
222. When offence proved included in offence charged:-
1. When a person is charged with an offence
consisting of several particulars, a combination of
some only of which constitutes a complete minor
offence, and such combination is proved, but the
remaining particulars are not proved, he may be
convicted of the minor offence, though he was not
charged with it.
2. When a person is charged with an offence and
facts are proved which reduce it to minor offence,
he may be convicted of the minor offence, although
he is not charged with it.
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 36 of 39
3. When a person is charged with an offence, he may
be convicted of an attempt to commit such offence
although the attempt is not separately charged.
4. Nothing in this section shall be deemed to
authorise a conviction of any minor offence where
the conditions requisite for the initiation of
proceedings in respect of that minor offence have
not been satisfied.
54. When the ingredients of the offence under which charges
have been framed are not proved by the prosecution but the
ingredients of any other offence which is minor to the offence
with which accused has been charged, the accused can be
convicted for the minor offence, though charges for the same
have not been framed.
55. Hon’ble Supreme Court of India in judgment titled as
‘Tarkeshwar Sahu Vs. State of Bihar, cited as
‘MANU/SC/4421/2006’ has observed as under:-
“26. In view of the foregoing facts and circumstances
of the case, we are of the opinion that the crime
committed by the accused was initial stage of
preparation. The offence committed does not come
within the purview of offence punishable under
sections 376/511 IPC. The offence committed squarely
covers the ingredients of Sec. 366 & 354 IPC. TheFIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 37 of 39
appellant was charged under Sec. 376/511 IPC but on
invoking the provisions of Sec. 222 of Code of Criminal
Procedure, the accused charged with major offence can
always be convicted for the minor offence, if necessary
ingredients of minor offence are present.”
56. Hon’ble Supreme Court of India in judgment titled as
‘Shamnsaheb M. Multani Vs. State of Karnataka, cited as
‘MANU/SC/0047/2001’ has explained the minor offence in
connection with the major offence as under:-
“17. What is meant “a minor offence” for the
purpose of Sec. 222 of the Code? Although, the said
expression is not defined in the Code, it can be
discerned from the context that the test of minor offence
is not merely the prescribed punishment is less than the
major offence. The two illustrations provided in section
would bring the above point home well. Only if two
offences are cognate offences, wherein main
ingredients are common, the one punishable among
them with a lessor sentence can be regarded as a minor
offence vis. a vis. the other offence.”
57. Applying lying the law laid down by the Hon’ble Supreme
Court of India in judgments titled as Tarkeshwar Sahu (supra) &
Shamnsaheb M. Multani (supra), this court is of considered
opinion that the prosecution has proved the ingredients of offence
FIR No. 325/2012, PS: Burari,
State Vs. Jafar Ali Page No. 38 of 39
punishable under Sec. 325 IPC as accused voluntarily caused
grievous injury on the person of injured PW-7 Sh. Akhilesh and
offence punishable under Sec. 325 IPC is a minor as well as
cognate offence to the offence punishable under Sec. 307 IPC
under which charge has been framed against the accused.
58. In view of aforesaid discussion, accused Jafar Ali is hereby
convicted for the offence punishable under section 325 IPC.
Digitally signed by VIRENDER VIRENDER KUMAR Announced in the open court KUMAR KHARTA KHARTA Date: 2025.02.01 on 1st day of February, 2025 12:22:01 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:01.02.2025 FIR No. 325/2012, PS: Burari, State Vs. Jafar Ali Page No. 39 of 39
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