Delhi District Court
The State vs . Ishrar on 19 May, 2009
IN THE COURT OF MANOJ JAIN
ADDITIONAL SESSIONS JUDGE:ROHINI COURTS:DELHI
SC No.: 62/08
THE STATE VS. ISHRAR
S/o Abdul Salam
R/o Jhuggi No. 547,
K Block, Jahangir Puri,
Delhi.
FIR No.: 116/08
PS: Jahangir Puri
U/Sec. 323/308 IPC
Date of institution in Sessions: 04.10.2008
Date of conclusion of arguments: 19.05.2009
Date of decision: 19.05.2009
JUDGMENT
1 Accused Ishrar has been chargesheeted by PS Jahangir Puri for commission of offences under Sections 323/308 IPC. 2 Let me give a very brief story of the prosecution case. Complainant Babloo was residing at Jhuggi No. 715, K Block, Village Bhalasva. On 24.02.08 at about 10:30 am, his wife Pushpa noticed that her neighbour Shabina (wife of accused Ishrar) had put utensils in the street which was blocking their passage. She asked Shabina to remove those utensils from the street which resulted in a quarrel. Babloo came out from his State Vs. Ishrar page 1 o f 13 jhuggi on hearing the quarrel and tried to make Shabina understand. In the meanwhile, accused Ishrar came out and started abusing Babloo. He also claimed that those utensils would not be removed. When Babloo objected to the abuses hurled by accused Ishrar, Ishrar became furious and picked up a stone tile and hit Babloo with the same on his head. When Pushpa tried to intervene and tried to rescue her husband, she was also pushed. Resultantly, she also received injuries. PCR was informed and Babloo as well as his wife Pushpa were taken to hospital. It is in these circumstances that the accused has been arrested and chargesheeted.
3 Challan was filed in the court of Ld. Metropolitan Magistrate on 21.07.08 and after compliance of Section 208 Cr.P.C., the case was committed to the court of Sessions. Case was received on assignment by this court on 04.10.08. 4 Accused was charged u/s 308/323 IPC vide order dated 18.10.08. Accused pleaded not guilty and claimed trial.
State Vs. Ishrar page 2 o
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5 Prosecution was directed to adduce evidence and has
examined seven witnesses viz. PW1 Babloo (injured/eyewitness), PW2 Pushpa (injured/eyewitness), PW3 HC Jai Bhagwan (Duty Officer), PW4 Ct. Ravi Prakash, PW5 Dr. Sardaman Singh, PW6 ASI Rai Singh (official of PCR) and PW7 ASI Vijender Singh (Investigating Officer) 6 Accused, in his statement Under Section 313 Cr.P.C. pleaded false implication. However, he simultaneously also claimed that since he had been beaten up, he had merely reacted in selfdefence. His tone was apologetic and he also pleaded for lenient view.
7 I have heard Sh. Praveen Samadhiya, Ld. Addl. P.P. and Sh. S.L. Sharma, Ld. Defence Counsel and carefully gone through the entire material on record.
8 Ld. APP has contended that testimony of both the public witnesses is transparent and cogent and they both have given a very convincing narration of the incident and there is no reason State Vs. Ishrar page 3 o f 13 whatsoever to disbelieve them.
9 Ld. Defence Counsel has, on the other hand, contended that there was previous enmity between the parties and accused has been falsely implicated. He also simultaneously supported the act of accused claiming that accused had been beaten up at the spot and had been given a teeth bite on his nose and, therefore, accused had picked up stone tile and hit Babloo with such tile only in his selfdefence.
10 I have gone through the entire testimony on record and given my thoughtful consideration to the rival contentions. 11 I have also seen the crossexamination of complainant Babloo as well as of his wife Pushpa. From the nature of the suggestions put to Pushpa as well as from the arguments raised before me, it becomes palpable and evident that defence is not disputing the incident in question. It would be appropriate if the relevant suggestions given to Pushpa are extracted and reproduced . These are as under:
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"It is wrong to suggest that my husband had grappled with the accused due to which the accused had fallen down. It is wrong to suggest that in his selfdefence, accused had picked up a tile and hit my husband by that tile"
12 Answers given by accused in his statement u/s 313 Cr.P.C. coupled with the arguments raised at the bar and said suggestions, it becomes very much apparent that defence admits that the incident in question had taken place and also admits the fact that Babloo had received injuries at the hands of accused and such injuries were given by a stone tile which had been picked up by the accused from the spot itself.
13 Sole ground agitated before me is that accused had acted in his selfdefence and, therefore, act falls within the recognized general exception as envisaged Under Section 96 IPC. Admittedly, as per Section 96 IPC, nothing is an offence which is done in the exercise of the right of private defence. However, simultaneously, it is also true that an aggressor cannot claim State Vs. Ishrar page 5 o f 13 such right of private defence. It is bounden duty of court to watchfully see that no one, on the mere pretext of exercise of right of private defence, inflicts injuries and tries to escape from the clutches of law. The right of private defence is not available to the person who comes prepared for fight and attacks an unarmed victim. It can only be exercised to repel unlawful aggression. There is no straight jacket formula to assess whether the accused had reacted in selfdefence and each case is to be tested in view of its peculiar backdrop. Moreover, when its a case of free fight, no right of private defence is available to any party and rather each individual is responsible for his or her own act. In the cases of sudden fight, when conflict develops at the spur of the moment and there is nothing to specifically show and indicate as to who was the aggressor, law does not permit the plea of private defence to be taken by either of the side.
14 In the present case, let me see as to what has been deposed by the witnesses in this regard. PW2 Pushpa has categorically deposed that when she came out of her jhuggi, she saw several utensils had been put in the street and such utensils had been State Vs. Ishrar page 6 o f 13 blocking her door and passage. She claimed that such utensils had been put by Shabina and when she was asked to remove those utensils, Shabina did not remove those utensils and rather started abusing her. She further deposed that her husband i.e. Babloo also came out of his jhuggi and tried to convince Shabina and, thereafter accused Ishrar came out of his jhuggi who rather started claiming that utensils would not be removed. PW2 Pushpa further deposed that she was pushed due to which she fell down and her head banged against a steel bucket. She further claimed that accused also picked up a tile and hit Babloo with such piece of tile.
15 PW1 Babloo has also claimed that accused started abusing him and when he was asked not to abuse, he (accused) picked up a stone tile and hit him on his head 34 times. He also deposed that his wife Pushpa was also pushed due to which she also received injuries.
16 Case was registered on the basis of statement of Babloo and such statement has been proved as Ex.PW1/A. During the State Vs. Ishrar page 7 o f 13 trial, the piece of tile was also produced before the court and was duly identified by the witnesses and has proved as Ex.P1. 17 It is also important to mention here that no suggestion with respect to selfdefence as such, was put to Babloo . On the contrary, it was suggested to him that when Babloo tried to get up, he received injuries on his head as his head struck against the wall of the bathroom. This is in direct contrast to the suggestion which had been put to Pushpa and is not in consonance with the sole defence version of plea of selfdefence. 18 I have seen the crossexamination of these two material witnesses viz. Babloo and Pushpa and I am of the firm opinion that defence has not been able to show anything which may give even a remote inkling to the effect that accused had caused the injury exercising his right of private defence. On the other hand, it is noticed that accused himself was actual aggressor. Wife of the accused had blocked the passage and door of the house of the complainant party by putting the utensils. They were asked to State Vs. Ishrar page 8 o f 13 remove the utensils but utensils were not removed. On the other hand, accused Ishrar started abusing Babloo as well as Pushpa and when he was asked not to abuse, he became furious and picked up a stone tile and hit the same on the head of the unarmed Babloo. In such a peculiar situation, accused is not at all justified in claiming the right of private defence. Such right is not available to an aggressor at all.
19 FIR has been proved as Ex.PW3/A. Tile (Ex.P1) was seized vide memo Ex.PW4/C and MLC of injured Babloo has been proved as Ex.PW5/A and of Pushpa as Ex.PW5/C.
20. As far as injury suffered by Pushpa is concerned, her injury is found to be simple in nature. She did not receive any sharp injury and accused is facing charge u/s 323 IPC for causing simple injuries on the person of Pushpa. She received abrasion as she was deliberately pushed by the accused when she was trying to rescue her husband. However, as far as injuries suffered by Babloo is concerned, MLC has been proved as Ex.PW5/A and the nature of injury has been opined to be simple. Injuries were State Vs. Ishrar page 9 o f 13 naturally sharp as it had been inflicted by piece of stone tile but fact remains that there is nothing to suggest that the case of prosecution can travel beyond the realm of Section 324 IPC.
21. In such type of situation, when a sudden scuffle takes place and stone or brick pieces are picked up and hurled on the opposite side, it cannot be inferred that accused had any such intention to cause culpable homicide or to cause such injuries as were likely to cause death. From the broad conspectus of the evidence appearing on record as well as the medical reports, it becomes perceptible that accused had no intention to cause death. Conflict developed in spur of the moment and accused had picked up the stone and hit Babloo. He never intended to cause his death. Fortunately for complainant, even the injuries are found to be simple.
22 In the case of NIRANJAN KUMAR VS. STATE 2008 JCC 838, Delhi. Accused had allegedly picked up a stone and started hitting the complainant on his head and face with a threat to kill. Doctor also opined injury suffered by the State Vs. Ishrar page 10 o f 13 complainant to be a simple one. Accused was, however, booked for offence under Section 308 IPC and it was held by Ld. Additional Sessions Judge that there was nothing on record to make out a case under Section 308 IPC and case was only of a simple hurt. Such order was upheld by Hon'ble High Court of Delhi. Paras15 and 16 of such judgment read as under:
15. Learned counsel for the petitioner sought to reply upon the judgment of the Apex Court in Sunil Kumar Vs. N.C.T. of Delhi & Ors. 1999 (1) JCC (SC) 92: 199 1 AD (Cr.) SC 217 to plead that an attempt to commit culpable homicide not amounting to murder may actually result in hurt of may not. The hurt may be simple or grievous hurt.
Merely because the injury inflicted in the incident was simple in nature, it did not absolve the accused from the charge under Section 308 IPC. It is the attempt to commit culpable homicide, which is punishable under Section 308 IPC whereas the punishment for simple hurts can be meted out under Sections 323 & 324 IPC and for grievous hurts Sections 325 & 326 IPC.
16. There can be no doubt about the legal proposition as canvassed by the learned counsel for the petitioner but in the present case where if the intent State Vs. Ishrar page 11 o f 13 and the instrument used is seen whereby a stone was picked up from the road in the heat of the moment, there does not appear that respondent no. 2 committed such act with an intention or knowledge to commit an offence of culpable homicide not amount to murder punishable under Section 308 IPC.
23 In the present case also, the situation is precisely similar. Piece of stone tile was picked up from the spot only and Babloo was hit then and there with such tile. Injured Babloo received simple injuries and there is no material to show or indicate that the accused had any intention or knowledge to cause death so as to attract offence under Section 308 IPC. 24 However, at the same time, it becomes apparent that as per evidence on record, accused had inflicted injuries with the help of sharp stone tile which can be said to be 'an instrument' for 'stabbing' or 'cutting' which makes him liable for commission of offence punishable under Section 324 IPC for causing injuries upon the person of Babloo.
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25 In view of my aforesaid discussion, I hold that prosecution
has been able to prove its case for offence u/s 323 IPC (for causing injuries on the person of Pushpa) and for offence u/s 324 IPC (for causing injuries on the person of Babloo). Accused is accordingly held guilty and convicted thereunder. Announced in the open court today i.e. on 19th May, 2009 (MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District:Rohini Courts:Delhi State Vs. Ishrar page 13 o f 13