Delhi District Court
State vs . Vinod Singh & Ors., Fir No. 234/93, Ps ... on 17 October, 2012
State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 234/93. PS. Model Town. U/s.324/34 IPC. State Vs. (1) Vinod Singh, (2) Santosh & (3) Lalla. JUDGMENT
A. SL. NO. OF THE CASE : 116/06.
B. DATE OF INSTITUTION : 16/10/93
C. DATE OF OFFENCE : 12/08/93
D. NAME OF THE : Sh. Rajesh Kumar S/o Sh. Harbhajan
COMPLAINANT Singh.
E. NAME OF THE : 1. Vinod Singh S/o Sh.Kalam Singh.
ACCUSED 2. Santosh S/o Sh. Rewari Lal.
3. Lalla S/o Sh. Mani Ram
4. Suraj S/o Sh. Hari Ram.
(since deceased and proceedings against
him were abated on 21.01.2008).
F. OFFENCE
COMPLAINED OF : U/s.325/323/34 IPC.
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Vinod Singh convicted for the
offence U/s.323/324/325/34 IPC
Accused persons namely Santosh and
Lalla are acquitted.
I. DATE OF SUCH ORDER : 17.10.2012
Page No. 1
State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that in the intervening night of the festival of Janamashtami on 11/12.08.93 the complainant Sh. Rajesh Kumar alongwith the co residents of his colony namely Ashish, Sanjay and Jaspal, went to Sanatandharam temple for offering their prayers. After offering their prayers in the temple, they went to MCD store park for receiving prasad as the same was being distributed in the said park. The worshipers were standing in a que for collecting prasad and the said persons including complainant also joined the said que. It was extremely crowded and therefore, the complainant was getting pushed from behind. It is alleged by the complainant that a group of persons who were standing ahead of him, objected to the aforesaid involuntary pushing. The group of the said persons caught hold of the complainant and pulled him out of the que and started abusing him. It is asserted by the complainant that the matter was resolved and the dispute was pacified by the crowd. The complainant has alleged that thereafter they went to the back side of the park for urination and at about 12:20 am the boys of the aforesaid group also came there and started an altercation with them. During altercation, two boys gave two knife blows on the hip of the complainant and another boy of the group namely Vinod hurled a brick Page No. 2 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . on his head. Thereafter, the aforesaid three neighborers of the complainant rushed towards him for rescuing him. But the accused Vinod, picked up another brick and threw it on the face of Ashish. On account of the said impact, Ashish fell on the ground. The accused Vinod was apprehended at the spot. However, the remaining boys of the said culprit group managed to flee away from the spot. On the basis of the statement dated 12.08.93, given by the complainant Sh. Rajesh Kumar, the present FIR U/s.324/34 IPC was registered at PS Model Town. During investigation the remaining three accused persons namely Santosh, Lala and Suraj were identified and arrested in the present case. On conclusion of investigation, the present challan under the aforesaid sections was filed in the court.
2. All the accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to all the accused persons. Prima facie a charge U/s.323/324/34 IPC was made out against all the accused persons. Accordingly, on 12.07.95 the charge was framed by the Ld. Predecessor of this court. All the four accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined eight Page No. 3 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . witnesses.
4. Sh. Rajesh Kumar (PW1) is the complainant and injured. He has proved his complaint as Ex.PW1/A. The said witness has supported the prosecution version regarding injuries sustained by him and Ashish, though he has wrongly told the date of incident as 11.12.93 instead of 11.08.93. He has testified that the accused persons gave him knife blows and one of the accused persons threw a brick on the Ashish. He has correctly identified the accused Vinod, who was apprehended at the spot.
5. Sh. Ashish Pandey ( PW2 ) has testified that in the year 1993 on the day of Janamashtami, he saw the accused persons beating his neighborer Rajesh and when he intervened in the fight, the accused Vinod hit him with a brick and thereby broke two teeth of his upper jaw. He also correctly identified the accused Vinod.
6. Sh. Jaspal Singh ( PW3 ) has also supported the prosecution version and the incident of criminal assault. However, he failed to identify either of the accused persons.
7. Sh. Sanjay ( PW4 ) has deposed that in the year 1993 on the eve of janamashtami, he was taking prasad from park at Model Town. He has further testified that at about 12:00/12:15 am, he saw the accused Vinod hitting his neighborer Ashish on his face with a brick. In his cross Page No. 4 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . examination, he has categorically testified that he had not seen any other accused persons at the spot except the accused Vinod.
8. HC Mahavir Prasad ( PW5 ) is a formal witness, who had registered the present FIR and he has proved its copy as Ex.PW5/A.
9. Sh. Satpal ( PW6 ) is the photographer who took the photographs of the place of incident at the request of IO SI Surinder Ojha and he has identified the photographs taken by him as Ex.P1 to Ex.P3.
10. Ct. Jai Prakash ( PW7 ) is also a formal witness who accompanied the IO SI Surinder Ojha for arresting the accused Suraj. He has proved the personal search memo of the accused Suraj as Ex.PW7/A. Thereafter, PE was closed.
11. Subsequently, statement of all the four accused persons U/s 313 Cr.P.C. were separately recorded. They have stated that they are innocent and they have been falsely implicated in the present case. However, they chose not to lead evidence in defence. Therefore, the case was listed for final arguments. Before final arguments could be addressed, the accused Suraj expired and the proceedings against the accused Suraj were abated vide order dated 21.01.2008.
12. Thereafter, an application u/s 216 Cr.P.C for alteration of charge was moved on behalf of the state, as the teeth of the injured Ashish Page No. 5 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . were broken on account of the present criminal assault and the said injuries are grievous in nature. The said application was allowed on 21.01.2010. Consequently the charge was amended and the remaining three accused persons were charged for the offence u/s 325/34 IPC. In accordance with section 217 Cr.P.C the prosecution and the accused were given a liberty to recall, resummon or call any other witness with reference to the such alteration.
13. The prosecution examined another witness i.e. Sh. Dinesh Kumar ( PW8 ) record clerk Hindu Rao Hospital, Delhi and he proved the carbon copy of MLC no.5562 and 5559 pertaining to the injured persons namely Ashish and Rajesh respectively. The said MLC are exhibited as Ex.PW8/A and Ex.PW8/B respectively. The prosecution evidence was again closed.
14. All the three accused persons has submitted that they want to adopt the statement u/s 313 Cr.P.C that was recorded on 22.01.2001. The supplementary statement of all the three accused persons u/s 313 Cr.P.C, in respect of the additional incriminating evidence that has come on record was also separately recorded and in the said supplementary statement also they claimed innocence. But still, they did not prefer to lead defence evidence. Accordingly, the matter proceeded for final arguments. Page No. 6 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC .
15. I have heard Ld. APP for the State and Ld. counsel for all the three accused persons. I have carefully perused the case file.
16. The cardinal principle of criminal law is that accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
17. In the instant case, the medical record clerk of Hindu Rao Hospital namely Sh. Dinesh Kumar (PW8) has proved the MLC of injured Ashish and Rajesh as Ex.PW8/A and Ex.PW8/B respectively, both dated 12.08.93. The said MLCs reflect that the concerned respective doctors have opined that the nature of injuries sustained by them were simple. However, the MLC of the injured Sh. Ashish (PW2) reflects that his teeth were broken. It is an admitted principle of law that the opinion of a doctor is neither binding nor conclusive and the same has merely persuasive value. The opinion of a doctor falls in the category of an expert witness and his opinion is not a substantive piece of evidence. The said opinion can be overruled if it is patently/overtly in contradiction with the facts of the case. Sh. Ashish (PW2) has categorically testified that his teeth were broken on account of criminal assault committed by the accused, who threw/hurled a Page No. 7 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . brick on his face. Besides that, his MLC Ex.PW8/A manifests that his teeth were broken. Section 320(seventhly) IPC provides that fracture or dislocation of a bone or tooth falls within the category of grievous hurt. Therefore, the injury of Sh. Ashish (PW2) is apparently grievous and not simple.
18. The Ld. Counsel for the accused has pointed out certain contradictions in the testimonies of the eye witnesses and he has further put forward that neither of the weapons of offence i.e. knife or brick has been seized. It is further submitted on behalf of the accused that the prosecution has failed to prove its case beyond reasonable doubt as it suffers with material infirmities and contradictions. The contradictions pointed out by the Ld. Counsel for the accused are minor in nature and they can be attributed to fallible human memory. Further, human memory is not a picture perfect memory and therefore, the eye witnesses are not expected to meticulously remember and reproduce the minute details of the incident. The non seizure of alleged weapon of offences is not fatal to the prosecution case, as the responsibility of seizing the said weapons was of the investigating agency and the complainant cannot be deprived of justice on account of inaction/derelictions of duties of the IO. Besides that, the alleged weapons of offence are merely a corroborative piece of evidence and in their Page No. 8 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . absence the case of the prosecution cannot be discarded. Thus, the arguments advanced by the Ld. Cousnel for the accused are not sustainable as it does not hold waters.
The complainant Sh. Rajesh Kumar (PW1) has proved his complaint dated 12.08.93 as Ex.PW1/A. The testimony of the complainant and the remaining eye witnesses is consistent regarding the occurrence of the offence of criminal assault. Moreover, the defence has failed to impeach the credibility of the eye witnesses (PW1 to PW4) including complainant Sh. Rajesh Kumar (PW1), regarding the incident of criminal assault that took place on the intervening night of Janamashtami dated 11/12.08.93. In addition to that, the MLCs of the injured persons dated 12.08.93 also corroborates the prosecution version regarding the incident of criminal assault. Hence, the testimony of eye witnesses (PW1 to PW4) including complainant Sh. Rajesh Kumar (PW1) inspires sufficient confidence regarding the commission of the offence. In view of the above discussion, the prosecution has proved beyond any reasonable doubt that the alleged incident of criminal assault took place on 11/12.08.93 and in the said assault Sh. Ashish (PW2) sustained grievous injuries.
19. The only contentious issue that survives in the present case is the identity of the accused persons. The Ld. Counsel for the accused has Page No. 9 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . admitted that the accused Vinod was present in the crowd at the place of incident, however, he has argued that he was apprehended on account of misunderstanding. Therefore, he has asserted that the accused Vinod is entitled to be acquitted, he being innocent.
The accused Vinod was apprehended at the spot by the complainant Sh. Rajesh Kumar and his friends. Further, the complainant Sh. Rajesh Kumar (PW1), Sh. Ashish Pandey (PW2) and Sh. Sanjay (PW4) have correctly identified the accused Vinod, in the court, to be the perpetrator of the present criminal offence. It is an admitted fact that the complainant/eye witnesses and the accused Vinod were not having previous enemity and therefore, there is no occasion for the complaint to falsely implicate the accused Vinod for the offence committed by someone else. Moreover, it is not expected for an aggrieved person to implicate an innocent person and let of the actual culprit. The non identification of the accused Vinod by one of the eye witnesses i.e Jaspal Singh (PW3) is of no consequence and the accused cannot take benefit of the poor memory of the said witness. The theory of misunderstanding regarding the identity of the accused Vinod, that is floated/propelled by his counsel, is not only baseless but the same has also not been substantiated by leading defence evidence. Thus, the identity of the accused Vinod is established beyond any Page No. 10 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . shadow of doubt.
20. In respect of the identity of the remaining two accused persons namely Santosh and Lalla, it is an admitted fact that they were not apprehended at the spot. Further, the TIP of the said accused persons was also not got conducted. The said accused persons were not previously known to the complainant and therefore, it was incumbent upon the investigating agency to conduct their TIP. Moreover, three eye witnesses i.e. Sh. Ashish (PW2), Sh. Jaspal Singh (PW3) and Sh. Sanjay (PW4) have failed to identify either of the said two accused persons. The complainant Sh. Rajesh Kumar (PW1) has also given a sweeping statement regarding the identity of all the accused persons and he has not specifically identified the said two accused persons. His shaky testimony regarding the identity of the said accused persons is not supported/corroborated by any independent witnesses. The identity of the accused in a criminal trial is of paramount importance and the accused cannot be convicted unless his identity is established beyond any reasonable doubt. In the instant case the prosecution has failed, to conclusively and cogently establish the identity of the accused persons namely Santosh and Lalla and therefore, they are entitled to benefit of doubt. Accordingly, both the accused persons namely Santosh and Lalla are hereby acquitted for the offence under which they Page No. 11 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . were charged. Both of them are directed to furnish personal bond and surety bond in the sum of Rs.25,000/ each in accordance with section 437A Cr.P.C. The same are furnished and they are accepted till the next six months.
21. In the wake of above discussion, the prosecution has conclusively established all the ingredients of the offence u/s 323/325 IPC against the accused Vinod. Accordingly, he stands convicted for the said offences.
22. Put up on 26.10.2012 for addressing arguments on quantum of sentence of the convict Vinod. Copy of this judgment be given dasti to the convict free of cost.
ANNOUNCED IN OPEN
court today i.e. 17.10.2012 (DHEERAJ MOR)
METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
Page No. 12
State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC .
IN THE COURT OF SH. DHEERAJ MOR, MM, ROHINI, DELHI FIR NO. 234/93.
PS. Model Town.
U/s.324/34 IPC.
State Vs. Vinod Singh
ORDER ON SENTENCE
31.10.2012
Present: Ld. S. APP for the State.
Ld. Counsel for the convict along with the convict.
Arguments on the quantum of sentence heard.
Case file and probation report of the convict filed by Probation Officer dated 26.10.2012 is perused.
Ld. APP for the state has argued that convict be sentenced to a maximum punishment so that a deterrent message be sent to the society and like minded people be discouraged from entering into the criminal activities.
On the other hand, Ld. Counsel for the convict has argued that the convict has clear antecedents. It is further submitted that convict is the only bread earner in his family and he has a family consisting of old aged mother, wife, and a female minor child to support. It is submitted by the Ld. counsel for the convict that he be given an opportunity for reformation and a lenient view may be taken.
I have perused the social investigation report filed by the Probation Officer. The submissions made by the Ld. Counsel for the convict are duly corroborated by the aforesaid report. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes. It is also essential to understand crime as a social and individual phenomenon and the need Page No. 13 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . to prevent its commission or repetition by adapting an attitude conducive to the resocialisation or reformation of the criminal. The criminal's reformation serves a great social purpose and society itself becomes the greatest beneficiary of this reformation by being freed from his depredations. If the society cannot reform an offender, it is punishment for the society.
Convict is facing trial in this case since last almost 20 years and he has shown genuine remorse for the offence committed by him. The convict was of tender/impressionable age at the time of commission of the offence. Further, the convict has not committed any offence, subsequent to the commission of present offence. Therefore, his desire to reform also seems to be genuine. There has been increasing emphasis on the reformation and rehabilitation of the offender as useful and selfreliant member of the society without subjecting him to deleterious effects of jail life. Further, it is apparent that the convict is not a hardened criminal and therefore, he must be shielded from the hardened criminals in the Jail and must be given an opportunity to reflect upon the offence committed by them and to reform.
Keeping in view the nature of offence, the character of the offender, his family background and social ramifications, it is the expedient to release him on probation of good conduct on his entering into a bond for an amount of Rs. 15,000/ with one surety in the like amount to appear and receive sentence during the period of two years and in the meantime to keep peace and be of good behavior. Bonds and surety bonds furnished and they are accepted. Convict is also directed to pay the cost of proceedings as Rs. 4000/ in accordance with section 5 of Probation of Offender Act 1958. Same is paid.
File be consigned to Record Room after due compliance.
Announced in the open court (Dheeraj Mor)
today on 31.10.2012 MM/Rohini/Delhi
31.10.2012
Page No. 14
State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . FIR NO. 234/93.
PS. Model Town.
U/s.324/34 IPC.
State Vs. Vinod
31.10.2012
Present: Ld. S. APP for the State.
Ld. Counsel for the convict along with the convict.
Arguments on the quantum of sentence heard.
Vide separate order on sentence the convict Vinod is released on probation of good conduct on his entering into a bond for an amount of Rs. 15,000/ with one surety in the like amount to appear and receive sentence during the period of two years and in the meantime to keep peace and be of good behavior. Bonds and surety bonds furnished and they are accepted. Convict is also directed to pay the cost of proceedings as Rs. 4000/ in accordance with section 5 of Probation of Offender Act 1958. Same is paid.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 31.10.2012 Page No. 15 State Vs. Vinod Singh & Ors., FIR No. 234/93, PS Model Town, U/s. 324/34 IPC . FIR NO. 234/93.
PS. Model Town.
U/s.324/34 IPC.
State Vs. (1) Vinod Singh, (2) Santosh & (3) Lalla.
17.10.2012 Present: Ld. S. APP for the State.
All the three accused persons on bail with counsel.
Vide separate judgment of even date announced in the open court today, the accused persons namely Santosh and Lalla are acquitted and accused Vinod stands convicted for the offence u/s 323/325 IPC. Counsel for the convict Vinod has moved an application u/s 3/4 Probation of Offenders Act, 1958 for seeking release of convict on probation. Let the report from the probation officer be called for NDOH Put up on 26.10.2012 for arguments on quantum of sentence.
(Dheeraj Mor)
MM/Rohini/Delhi
17.10.2012
26.10.2012
Present: Ld. S. APP for the State.
Convict Vinod in person with counsel.
Counsel for the convict has sought sometime for addressing arguments on the quantum of sentence. The said request is allowed. Put up on 31.10.2012 for the said purpose.
(Dheeraj Mor) MM/Rohini/Delhi 26.10.2012 Page No. 16