Delhi District Court
State vs . Santosh Kumar on 14 January, 2010
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IN THE COURT OF SHRI. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESSIONS CASE NO. 124/ 2008/2005
State Vs. Santosh Kumar
S/o Sh. Manshi Ram
R/o F175, Kahn Pur Village
New Delhi
FIR No. 429/2004
Police Station Ambedkar Nagar
Under Section 308/341/34 IPC
Date of Institution in
Sessions Court on 28/5/05
Date of Institution in
this Court on 03/10/2008
Date when arguments
here heard 04/01/2010
Date of Judgment 14/01/2010
JUDGMENT
The SHO of Police Station Ambedkar Nagar has filed challan against the accused in the court of learned Metropolitan Magistrate, New Delhi for the trial of the accused for the offences under Sections 308/341/34 IPC. After supplying the copies to the accused and compliance of provisions of 2 the section 207 Cr. P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused.
BRIEF FACTS Prosecution case in brief is that on 28/8/2004 on receipt of DD No. 43 Police Post Madangir, Assistant Sub Inspector Shamsher Singh along with Constable Zakir Khan went to the spot at 43/1 Khanpur Devli Mode, Delhi and on inquiry came to know that the injured had been taken in PCR van to AIIMS Hospital. On receipt of DD No. 48 Assistant Sub Inspector Shamsher Singh along with Constable Zakir Khan reached at AIIMS Hospital where they found Sub Inspector Vijay Kumar who gave application to Assistant Sub Inspector Shamsher Singh on which doctor has opined that the injured was fit for statement. After that Assistant Sub Inspector Shamsher Singh recorded the statement of injured Gulshan who stated in brief that he was working with his father as his father was having a business of wholesale hosiery. Some persons used to take articles from their shop for sale at Sangam Vihar, Khanpur and Tigri etc. On 28/8/2004 at 8.00 PM he was going on his scooter no. DL3SQ3558 to get the money from the shopkeepers, when he was about to reach village Devli Holy Chowk on the way Vicky, Santosh and Rajeev suddenly stopped his scooter and got him alighted from the scooter. Vicky caught hold of him 3 from his collar and enquired whether the scooter belonged to him. On his reply in the affirmative the said three persons gave him leg and fist blows and brick blows and made him fall on the road and started beating him. Thereafter their some other companions also came there and started beating him. He became unconscious. When he regained consciousness he saw that his purse containing Rs 5000/, some documents, driving licence and gold chain and the stick were missing along with his shoes. Thereafter he called his brother Dharampal who took him to his house . He called the police at No. 100. PCR came there and took him to AIIMS in PCR van.
On the statement of the complainant Assistant Sub Inspector Shamsher Singh gave his endorsement and sent the rukka through Constable Zakir Khan to the police station who got the case registered. Thereafter Assistant Sub Inspector prepared site plan, recorded statement of the witnesses and collected MLC on which opinion of the doctor was that injury on the person of the complainant was grievous, arrested accused Santosh who surrendered before the court and was inquired by the investigating officer after taking permission of the court. Co accused Vicky and Rajiv could not be arrested, so only accused Santosh was challaned by police with the request that if in future accused Vicky and Rajiv are arrested their supplementary challan shall be filed separately. 4 CHARGE AND PLEA OF THE ACCUSED Prima facie case for the offences punishable under Sections 308/341/34 IPC was found made out against the accused Santosh. Accordingly charges were framed against the accused Santosh on 28/04/05 to which he pleaded not guilty and claimed trial. PROSECUTION WITNESSES In support of its case, prosecution examined with nine witnesses in all namely. PW1 Gulshan Kumar, PW2 Constable Zakir Khan, PW3 Assistant Sub Inspector Ganga Prakash, PW4 Constable Suresh Kumar, PW5 Dr Shalini Girdhar, PW6 Constable Krishan Kumar, PW7 Doctor Madhusudan, PW8 Sub Inspector Veer Sain and PW9 Assistant Sub Inspector Shamsher Singh.
PW1 Gulshan Kumar is the complainant who with corroborated the statement made by him before the police in the complaint and referred above. In nut shell he has stated that on 28/8/2004 at 8.00 PM he proceeded on two wheeler scooter for collecting money from the customers as his father was having a hosiery wholesale business. Thereafter at about 10 PM while he was returning via Sangam Vihar and reached near Holy Chowk, Devli. Vicky, Santosh and Rajiv stopped his scooter and asked him regarding two wheeler scooter. On being told it belonged to him, they 5 started giving fist blows and brick blows on his right ear. During beating he fell down on the road and accused persons went away from the spot. the witness identified accused Santosh then present in the court and told that he was amongst the three persons and the other two persons were not present and he can identify them also. He proved the statement Ex. PW 1/A. He resiled from his supplementary statement and was cross examined by the learned Additional Public Prosecutor. In the cross examination he denied that in supplementary statement he stated that site plan prepared by investigating officer or that constable Zakir Khan took the rukka for registration of the case or that he along with investigating officer and constable Zakir Khan went for the search for Rajiv and Santosh and they were not found at their residence and one of his friends told him regarding Vicky as he was present in his house. He was confronted with his previous statement mark A from portion A to A. PW2 is constable Zakir Khan who stated that he was present with the investigating officer Assistant Sub Inspector Shamsher Singh, on 28/8/04. He went with him to the spot and then to the AIIMS Hospital and he took the rukka to the police station for registration of the case, after recording statement of the complainant by the investigating officer. He stated that investigating officer prepared site plan at the instance of the complainant. Other accused persons were not traceable. 6
PW3 is Assistant Sub Inspector Ganga Prakash who stated that he obtained M.L.C. of injured Gulshan and injury was declared as grievous by blunt object. He stated that he tried to trace the other accused but they were not traceable. He handed over the case file to the Incharge Police Post Madangir.
PW4 is Constable Suresh Kumar who stated that he joined the investigation with the investigating officer. This witness refreshed his memory by going through his earlier statement recorded by the investigating officer thereafter he stated that accused Santosh was arrested vide arrest memo Ex. PW 4/B and gave his disclosure statement Ex. PW 4/A. PW5 is Doctor Shalini Girdhar who proved M.L.C. of injured Gulshan Ex. PW 5/A prepared by Doctor Amardeep Singh and proved copy of the discharge summary prepared by Doctor Amardeep Singh as Mark PW5/A. PW6 is Constable Krishan Kumar who stated that on 28/8/2004 he was posted as Daily Diary Writer at Police Post Madangir Police Station Ambedkar Nagar. He had brought DD register and proved the copy of the DD No. 43 and DD No. 48 as Ex. PW 6/A and Ex. PW 6/B. PW7 is Doctor Madhusudan Senior Resident Radiology AIIMS. He proved the X Ray report of the injured Gulshan as Ex. PW 7/A which bears signature of Dr. Rohini Gupta.
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PW8 is Sub Inspector Veer Sain who stated that on 20/12/2004 he was posted as Assistant Sub Inspector in Police Station Ambedkar Nagar and on that day investigation of this case was marked to him and he filed challan in the court after completion of the investigation.
PW9 is Assistant Sub Inspector Shamsher Singh who proved the steps taken by him during investigation of the case. He corroborated with the statement of PW 2 Constable Zakir Khan regarding going to the spot on receipt of DD No. 43 Ex. PW 6/A and then to AIIMS Hospital and recording statement of injured Gulshan Ex. PW 1/A. He stated that he prepared rukka Ex. PW 9/A and got the case registered through Constable Zakir Khan. From the hospital he came back to the spot and prepared site plan Ex. PW 9/C on the pointing out of injured. He recorded statement of witnesses, searched for the accused persons . On 24/11/2004 accused Santosh then present in the court surrendered in the court. He was arrested vide arrest memo Ex. PW 4/B, he made disclosure statement Ex. PW 4/A. He could not arrest accused Vicky and Rajeev as their addresses were not available.
PLEA AND DEFENCE OF THE ACCUSED In the statement of accused under Section 313 CrPC accused has either denied the questions put to him pertaining to incriminating evidence emerging from the prosecution case or expressed his ignorance about 8 them. He stated that it is a false case. Witnesses are interested witnesses. He is innocent and has been falsely implicated in this case.
In his defence accused has examined DW1 Rohtash Kumar who has stated, in brief, that the shop of the accused is opposite to his shop. Since last seven years he has been working there. He used to open the shop till 11 PM. On 28/8/04 he was present in the shop. Gulshan is the name of his relative. He is residing near to his residential address is 169 Khanpur Village, New Delhi.
ARGUMENTS AND FINDINGS The learned Additional Public Prosecutor for the State has argued that the injured Gulshan has supported the prosecution case and has identified the accused as one of the persons who attacked him. The medical evidence is also produced by the prosecution which corroborates the statement of the injured so the prosecution has been able to prove its case against the accused beyond reasonable doubt and accused is liable to be convicted of the charges framed against him.
The learned counsel for the accused, on the other hand, has argued that the case is registered in police station Ambedkar Nagar while in fact the jurisdiction of the place of incident lies with police station Sangam Vihar 9 so the investigation is faulty and accused is entitled to be acquitted on this ground.
It is argued that due to property dispute between the injured and his family and the accused and his family the accused was implicated in this case. The coaccused persons though available were not arrested to face trial with the accused. The injured Gulshan has not specifically stated as to who hit him with brick. There is no fracture found on the person of the injured in the medical report to know grievous injury was caused.
It is also argued that PW2 Constable Zakir Khan has stated that rukka was taken by him to the police station at 8 PM while PW9 Assistant Sub Inspector Shamsher Singh the investigating officer has stated that FIR was registered at 6 PM. Therefore, due to these shortcomings in the prosecution case accused is entitled to the benefit of doubt. It is also argued that PW2 Constable Zakir Khan has stated that the site plan was prepared by the investigating officer before the F.I.R. was lodged, then how site plan has a FIR number on it? It shows that accused has been falsely implicated in this case. Reliance has been placed upon the authority reported as Zohra versus State 2000 (1) J CC (Delhi) 167.
I have heard the learned Additional Public Prosecutor for the State, the learned counsel for the accused and have gone through the record of the case and relevant provisions of law carefully. 10
Although the question of jurisdiction of the police station concerned is raised on behalf of accused but neither there is any suggestion to the witnesses nor any evidence is produced by the accused to show that police station Ambedkar Nagar did not have jurisdiction over the area of place of incident. Therefore, the argument on behalf of the accused on the question of jurisdiction of the police station concerned is liable to rejected.
The two coaccused persons are proclaimed offenders and could not be arrested to face trial with the present accused. But this fact in itself does not exonerate the accused from the liability if the prosecution has been able to prove its case against accused on the charges framed against the accused Santosh Kumar.
In this case the star witness of the prosecution PW1 injured Gulshan has not only identified accused as one of the accused persons who wrongfully stopped him while he was going on his two wheeler scooter and gave beatings to him. There is nothing in the crossexamination of this witness which may discredit his statements in this regard. Besides the witness has also proved the statement recorded by investigating officer as ExPW1/A. In the light of this convincing statement of the injured PW1 Gulshan Kumar the prosecution case is proved beyond reasonable doubt so far as the charges of wrongful restraint of the victim/complainant and causing injuries to him are concerned though the question arises, in the 11 given facts and circumstances, whether the offence under Section 308 IPC is attracted to the present case or not. The minor contradictions pointed out by learned counsel for the accused have no serious implication in the prosecution case.
It is true that the injured PW1 Gulshan Kumar has not specifically stated as to which of the accused persons has hit him with brick causing serious injury, though he has stated that all the accused persons gave him fist and brick blows. But this shortcoming in the statement of injured does not help the accused as all the accused persons including the present accused facing trial before this Court had common intention in inflicting injuries on the person of the injured PW1 Gulshan Kumar. Therefore, it does not matter who out of the accused persons, arrested or could not be arrested by police gave brick blow to the injured in this case.
Regarding mention of the F.I.R. number, in the site plan which is alleged to have been prepared before FIR was lodged, even if the site plan was prepared before the F.I.R. was lodged there is nothing wrong in putting F.I.R. number on the site plan for upkeep of record of investigation after the F.I.R. number came to the knowledge of investigating officer. Zohra's case (supra) relied on behalf of the accused is not applicable to the present case, as in that case there was recovery of contraband and the seizure memo of the contraband, personal search memo of the accused 12 etc were prepared before lodging of the F.I.R. the doubt arose as F.I.R. number was found on these important documents regarding recovery of contraband from the accused. The present case does not entail any recovery of contraband or any other article from the accused herein so Zohra's case (supra) has no applicability to the present case.
The real question which arises in this case is whether offence under section 308 IPC is attracted or not?. The MLC of the injured Ex. PW 5/B shows that the injured suffered grievous injuries by blunt weapon. But how and what grievous injury is suffered by the injured is not specified in the MLC. Apparently the injuries shown in the MLC Ex. PW 5/B show that these are simple injuries caused by blunt object. The report of the radiologist Ex. PW 7/A of the injured proved by Doctor Madhusudan shows that the injured Gulshan Kumar did not have any bone injury on his person. PW5 Doctor Shalini Girdhar has stated that the injured was examined by ENT specialist and the nature of injuries as per MLC was declared grievous by blunt object as according to Junior Resident ENT , the patient had ear perforation. The MLC prepared by Doctor Amardeep Singh is proved by PW5 as Ex. PW 5/A. Therefore, the doctor/Junior Resident who examined the injured and his ear is not examined in the court on behalf of the prosecution to establish serious ear injury or to show due to that injury it can be said that the injured suffered grievous injury on 13 his person.
In Babloo alias Sujeet Vs The State of Madhya Pradesh 1995 Cri.L.J. 3534 it was held that :
" In the present case the doctor has not said anything regarding the nature of the injuries whether they were dangerous to life or not. The doctor was examined and he was a person professionally sufficient for giving opinion. Learned counsel for the State submitted that material is there and the Court can form an opinion regarding the character of the injuries. I doubt that this submission of the learned counsel if worth acceptance. In the case of Gambhir Vs. State of Maharashtra, (AIR 1982 SC 1157 : 1982 CriLJ 1243 (SC)), Supreme Court in para 30 considered the matter regarding the formation of the opinion by the Court, in respect of the matter relating to the opinion of the doctor. In that case the High Court came to its own opinion when the doctors failed to give opinion. The relevant passage is as extracted below: 14 "30.....The Court has to draw its conclusion on the basis of the materials supplied by the expert opinion. The High Court has tried to usurp the functions of an expert.."
In Rajesh @ Vimal Kumar & Anr. Vs State ( Delhi Admn.)1995 JCC 148 Delhi it was held :
" Probably the attention of the learned Additional Sessions Judge was not drawn to the judgment of this court in Narinder Kumar Vs. State of Delhi, 1980 CC Cases 62 (Delhi). In the said case also the doctor who had attended the injured during treatment was not produced and as such the injury could not be proved to be grievous. It was consequently held to be simple. The prosecution suffers from the same malady in the present appeal too. Though it placed on the record the medicolegal report, it never thought of examining the Doctor who had opined that the injuries were dangerous in nature. Since that particular opinion has not been proved through the doctor who gave it and since we do not know on what basis he formed that opinion, and keeping also in 15 view the medicolegal report placed on the record, I do feel that in the present case the conviction shall have to be only under section 324 read with section 34 of the Indian Penal Code. The appeal with regard to conviction is accepted to that extent."
In Narinder Kumar Vs The State of Delhi 1980 C.C. Cases 62 ( Delhi) it was held " The prosecution has not produced the relevant medical record of Safdarjang Hospital relating to the treatment given to the injured person. Admittedly, Dr. D. N. Taneja (PW7) had examined the injured person in the casualty ward. He rightly did not give the depth of injury No.1 in the medicolegal report as he could not possibly do so. It was for the Surgeon who had attended on the injured person to give the depth of the said injury. No other doctor, who attended on the injured, has been produced by the prosecution for reasons best known to them. Dr. Taneja had examined the Xray reports taken on December 6, 1972of the chest and abdomen of the injured and found no bony injury. Although he has labelled the 16 injury as grievous, yet has not given any reasons for forming that opinion. It was for the prosecution to prove conclusively by producing not only the medical record relating to the treatment given to the injured but also by producing the doctor who had attended on the injured in the surgical ward, that the said injury was of such a depth or of such a nature which would be covered by the definition of grievous hurt as given in Section 320, Indian Penal Code. Alternatively, it was open to the prosecution to prove the intention of the accused in inflicting the said injury, which injury is admittedly on a vital part, was of the kind referred to under Section 300, Indian Penal Code. As held by the Supreme Court in Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843, the burden is still on the prosecution to establish such an intention where in fact no vital part has been actually cut as a result of the injury. The learned trial Court has rightly held that the requisite intention has not been established by the prosecution in the present case. Without proof of the requisite intention, absence of the reasons which 17 prompted Dr. Taneja to opine it as such. In this view of the matter, injury No.1 mentioned in Ext. PW7/A (medicolegal report) is to be held to be simple. The offence committed by accused Narinder Kumar is thus covered by Section 324, Indian Penal Code, and not by Section 326, Indian Penal Code, as has been found by the learned trial Court."
In Swarn Singh Vs State 1991(2) C.C. Cases 278, Delhi it was held:
" According to the prosecution story Panna Lal sustained injuries including fracture which were declared to be grievous by the doctor. It is however, pertinent to note that MLC Ext. PW8/A of Panna Lal prepared by Dr. P K Jain has been proved only by record clerk Devinder Kumar, PW8. Opinion about the injuries being grievous was recorded by Dr. Madhu Pant. This endorsement has also been proved by the same record clerk. It is pertinent to note that Panna Lal PW4 has no where stated that he sustained some fracture and for how long he remained admitted in the hospital. All that has been stated by him was that he sustained injuries 18 in this accident and his motherinlaw also sustained injuries on account of which she died. The law is well settled that in order to hold injuries to be grievous reliance can be placed on the statement of doctor giving reasons for coming to the conclusion as to how the injuries were grievous or by considering the evidence of the injured that he sustained fracture which would amount to the injury being grievous. In the instance case however, this evidence is conspicuous by its absence and so it cannot be said that the proseecution has proved on record that Panna Lal sustained grievous injuries in this accident. In this way the injuries of Panna Lal have to be held to be proved as simple only which would fall under section 337 IPC. "
In the light of Babloo's case (supra) it is the doctor concerned who is to give opinion regarding nature of injury sustained by the victim in the criminal case and the court cannot substitute its own opinion by usurping the function of medical expert. In Rajesh's case (supra) and Sawarn Singh's case (supra) it is made clear by our Hon'ble High Court that in case the nature of injury shown in the MLC of the victim is grievous but the doctor concerned who has given the report is not examined in the court then this injury should be taken as simple and not grievous. 19
Therefore, the injuries on the person of the injured PW1 Gulshan Kumar should be taken as simple with blunt object attracting section 323 IPC and not section 308 IPC or Section 325 IPC as the MLC show is simple injuries and bruises on the person of the injured and injured himself has stated at that he was slapped and given blow and the gravity of the injury from brick blow in the ear of the injured could not be established by medical evidence by the prosecution to show that complainant suffered any grievous injury. In the given facts and circumstances of the case the offence under section 323 IPC and not 308 IPC or Section 325 IPC is attracted. There is also case law which shows that in the given facts and circumstances of the case the conviction of the accused recorded under section 308 IPC by the trial court was altered by higher courts under section 323 IPC.
Where the accused inflicted injuries on the victim which in the opinion of the doctor were grievous injuries but the doctor had not given sufficient reasons for opining the injuries to be grievous in nature, the conviction of the accused under Section 308/34 IPC was set aside and instead they were convicted under Section 323( See Ashok Kumar V State (1996) 1 Chand Cr Case 154 ( Del) (DB).
Where the accused was alleged to have attacked the victim with iron rod, the evidence of eyewitnesses was infirm and contradicting as to the 20 weapon of offence, the opinion of the doctor was that the injuries found on the person of victim were simple and caused by blunt object, the conviction of the accused was altered from Section 308 to one under Section 323. ( See Ranjit Singh V State (1995) AIHS 4282 ( Del.).
In view of the above discussion, I hold that prosecution has failed to prove its charge against accused for the offence under section 308 IPC however it has been successful in proving the charge under section 341/34 IPC against the accused and also under section 323/34 though the accused is charged under section 308/34 IPC.
RESULT OF THE CASE In view of the above discussion, the prosecution has been able to prove its case against the accused for the charge under section 341/34 IPC and for the offence under section 323/34 IPC beyond reasonable doubt. The accused is convicted under the said offences. Let accused be heard on the point of sentence/ probation The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open court on 14.01.2010 (S.K.Sarvaria) Additional Sessions Judge01/South Patiala House Court 21 22 IN THE COURT OF SHRI. S.K. SARVARIA ADDITIONAL SESSIONS JUDGE01/SOUTH PATIALA HOUSE COURT/NEW DELHI SESSIONS CASE NO. 124/2008 State Vs. Santosh Kumar S/o Sh. Manshi Ram R/o F175, Kahn Pur Village New Delhi FIR No. 429/2004 Police Station Ambedkar Nagar Under Section 308/341/34 IPC ORDER ON SENTENCE/PROBATION Vide my judgment of even dated ie 14.1.2010 the convict/accused is convicted for the offences under Sections 341/323/34 IPC.
Ld. Addl PP has argued for deterrent punishment against accused keeping in view the nature of the crime committed by convict.
learned counsel for convict has argued that convict is sole bread earner of his family and is not the previous convict or he may be released on probation.
I have heard learned Additional Public Prosecutor for State and 23 learned counsel for convict/accused on the point of sentence/probation.
In view of the fact that no previous conviction for any offence is alleged or proved against the convict and also having regards to age, character and antecedents of the convict/accused and the offences in which he is convicted and the fact that convict/accused faced trial for more than five years, I feel it is expedient, in the interest of justice that the convict should be released on probation of good conduct, therefore, instead of sentencing him to any punishment, I direct that convict Santosh be released on probation on furnishing personal bond in the sum of Rs. 15,000/ with one surety in the like sum and to appear and receive sentence when called upon during the period of one year as this court may direct and in the meantime to keep peace and be of good behaviour.
Personal bond and surety bond furnished by convict/accused during investigation and trial of the case are cancelled. The judgment and order on sentence be sent to server( www.delhidistrictcourt.nic.in) File be consigned to record room.
Announced in the open court on 14.01.2010 (S.K.Sarvaria) Additional Sessions Judge01/South Patiala House Court