Delhi District Court
State vs . on 5 April, 2018
1
IN THE COURT OF SH. RAJNISH BHATNAGAR
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 518/17
FIR No. : 235/17
P.S. : Vijay Vihar
U/s : 308 IPC
Date of registration : 19082017
Reserved for Judgment on: 27032018
Judgment Announced on : 05042018
State
Vs.
Sonu Pal S/o Surender Pal
R/o Village Ghanora,
District Bulandshar (U.P.)
JUDGMENT
1. Briefly stated the present case was registered on the basis of the statement of complainant Gulshan S/o Sh. Om Prakash. According to the complainant he plies Gramin Seva between Begum Pur and Rithala Metro Station. On 17022017, at about 11:00 a.m., when he took the passengers from Begumpur, he had heated arguments with Sonu Pal who is the driver of Gramin Seva No. DL 2003978 on the pretext of lifting the passengers. According to the complainant, thereafter, he reached at Rithala and at about 11:15 a.m Sonu Pal also reached Rithala and was having an iron rod in his hand and started saying to him "Aaj Tera Kam Tamam Kar Deta Hoo".
Sessions Case No: 518/17 Page 1 of 20 2According to the complainant, Sonu Pal hit the iron rod on his head as a result of which he felt dizziness and sat there and blood started oozing from his head. Seeing this, Ashok who also plies Gramin Seva with him and Manu, younger brother of the complainant, removed complainant to BSA hospital.
2. F.I.R. bearing No. 235/17 was registered at Police Station Vijay Vihar and investigation went underway. During the course of investigation, accused Sonu Pal was arrested. After completion of investigation, final report under Section 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
3. On 23.09.2017, a charge under Section 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused, the prosecution examined as many as 11 witnesses.
5. PW 1 Sh. Gulshan is the injured / complainant. He is the most material witness of the case and I will discuss his testimony in the later part of the judgment.
6. PW 2 Mannu is the brother of injured PW 1 Gulshan who on 17102017 at about 11:20 a.m on receiving call from one Ashok regarding injury to PW 1 rushed to Rithala Metro Station where he saw that blood was oozing from the head of his brother Gulshan (PW 1). He deposed that he alongwith Ashok took his brother to B.S.A. Hospital and on the way to the hospital, his brother told him that accused Sonu had caused him injury on his Sessions Case No: 518/17 Page 2 of 20 3 head with iron rod. He further deposed that they got admitted PW 1 Gulshan in the hospital.
7. PW 3 Ashok deposed that he has been working as a driver on Gramin Seva. He further deposed that he knew accused Sonu Pal whom he correctly identified in the court and deposed that accused is also working as a driver on Gramin Seva plying between Begum Pur to Rithala Metro Station. He also knew complainant Gulshan who is also a driver on Gramin Seva.
8. He further deposed that on 17102017, at about 11:15 a.m when he reached at Rithala Metro Station with his Gramin Seva, he saw that Gulshan was lying on the road in injured condition near his vehicle. He immediately made a telephonic call from the mobile of Gulshan to his brother Mannu and called him. He noticed that blood was oozing from the head of Gulshan. He further deposed that Manu brother of Gulshan also reached there and he alongwith Mannu took Gulshan to B.S.A. Hospital where they got him admitted.
9. PW 4 H.C. Manjinder remained associated with the IO during the investigation of the case. He deposed about the sequence of investigation done by the IO in his presence. He deposed that on 17022017 on receipt of DD No. 40 B he alongwith ASI Shiv Ram reached at BSA Hospital where they collected the MLC of injured Gulshan. Since the injured was not able to give statement, they returned to P.S.
10. On that day at about 10 p.m. PW 4 took the copy of FIR and rukka from DO H.C. Pradeep for being given to ASI Shiv Ram. In the presence of Sessions Case No: 518/17 Page 3 of 20 4 PW 4, IO ASI Shiv Ram apprehended and arrested the accused vide arrest memo Ex. PW 1/D from a room in a plot at Budh Vihar behind Braham Shakti Hospital on the pointing out of the complainant and personal search of the accused was taken. PW 4 proved on record the personal search memo of the accused as Ex. PW 4/A. He also proved on record the disclosure statement of the accused as Ex. PW 4/B. He further deposed that supplementary statement of the injured Gulshan was recorded and the shirt which injured was wearing at the time of incident was also sealed by the IO with the seal of SR and IO seized the same vide seizure memo Ex. PW 1/B. He further deposed that the medical examination of accused was got done and thereafter he was put up in the lockup. PW 4 identified the accused and the case property.
11. PW 5 H.C. Pradeep Kumar is the duty officer, who on 17022017, on the basis of rukka received by ASI Shiv Ram got recorded the FIR of the present case from CIPA Operator and after the registration of the FIR he made his endorsement regarding the same on the rukka which he proved as Ex. PW 5/A. He further proved on record the copy of the FIR as Ex. PW 5/B and certificate U/s 65 B of the Indian Evidence Act as Ex. PW 5/C.
12. PW 6 Davinder is the registered owner of gramin seva bearing registration No. DL2W3978. He deposed that in the morning of 17022017, accused Sonu Pal took his said vehicle for driving. He further deposed the police officials gave him a notice under Section 133 A. He proved the same as Ex. PW 6/A. He gave reply to the police on the underneath of the said notice . He proved on record his reply as Ex. PW 6/B. Sessions Case No: 518/17 Page 4 of 20 5
13. PW 7 ASI Shiv Ram is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record copy of DD No. 40 B as Ex. PW 7/A and endorsement made by him on the statement of the complainant as Ex. PW 7/B. He identified the accused and the case property. After completion of the investigation he filed the charge sheet.
14. PW 8 is Dr. Rohit Kansal, SR (Dental) Dr. B.S.A. Hospital, Delhi. He deposed that on 17022017, patient was brought into casualty by his father Om Prakash. He further deposed that initially, patient was examined by Dr. Mayur vide MLC No. 2020 and he gave his initial findings. He further deposed that after examining the patient, CMO referred the patient to SR (Surgery), SR (NeuroSurgery) and SR (Dental).
15. He further deposed that on 09032017, he was on duty as SR (Dental) and on the basis of the findings and dental report, he gave his opinion on injury as "simple" in nature. He proved the MLC which is in the handwriting of Dr. Mayur as Ex. PW 8/A. He further deposed that the same bears his endorsement from point X to X where he opined the nature of injury. He proved on record his endorsement as Ex. PW 8/B bearing his signature at point A.
16. PW 9 Dr. Saurabh Mishra, SR (Surgery), Dr. B.S.A. Hospital, Delhi deposed that on 17022017, at about 1:20 p.m, he was on duty as SR (Surgery). He further deposed that on the basis of radiological and clinical examinations, he gave his opinion on injury as "simple" in nature from surgical point of view. PW 9 further deposed that MLC Ex. PW 8/A which is in the Sessions Case No: 518/17 Page 5 of 20 6 handwriting of Dr. Mayur bears his endorsement from point Y to Y where he opined the nature of injury. He proved on record his endorsement as Ex. PW 9/A. He further deposed that his endorsement in regard to examination of patient is Ex. PW 9/B bearing his signature at point C on MLC Ex. PW 8/A. He referred the patient to SR (Neurosurgery) for further management and treatment.
17. PW 10 Dr. Satya Ranjan Panda deposed that on 17022017, Dr. Mayur was posted as JR under his supervision and on that day as per MLC Ex. Pw 8/A at about 12:04 p.m patient Gulshan was brought into casualty by his father Om Prakash and he was examined by Dr. Mayur under his supervision vide MLC No. 2020 and his findings on the MLC from point D to D bear the signature of Dr. Mayur at point E. He further deposed that after examining the patient, he was referred to SR (Surgery), SR (Neuro Surgery) and SR (Dental). He further deposed that MLC bears his signature at point F. He identified the handwriting and signature of Dr. Mayur on the MLC Ex. PW 8/A as Dr. Mayur worked under his supervision.
18. PW 11 is Dr. Gajendra Singh Sandhu, SR (Neuro Surgery), Dr. B.S.A. Hospital, Rohini, Delhi. He deposed that he has been deputed by Medical superintendent, Dr. BSA Hospital, Delhi to depose on behalf of Dr. Manish who had examined patient Gulshan on 17022017. He deposed that Dr. Manish examined the patient in Neuro Surgery Department vide his endorsement Ex. PW 11/A bearing his signature at point A on the reverse side of MLC Ex. PW 8/A. PW 11 identified the handwriting and signature of Dr. Sessions Case No: 518/17 Page 6 of 20 7 Manish as he has seen him writing and signing in the official course of duties and he had worked with him.
19. He further deposed that on 08032017, Dr. Manish gave his opinion as according to radiological findings injuries were "simple" in nature from Neuro surgical side. His opinion on the MLC already Ex. PW 8/A regarding the nature of injuries is encircled in red and is Ex. PW 11/B, bearing the signature of Dr. Manish at point Y.
20. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded and all the incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated in this case by PW 1. He also stated that PW 1 sustained injuries by falling on his own. He further stated that he had not given him any beatings or blows with any rod. He further stated that he and PW 1 used to ply their gramin seva on the same route and directions and for this reason, PW 1 was having grudge against him and for this reason he had small altercation with PW 1 which later on compromised between them few days prior to the incident. He further stated that lateron PW 1 with the connivance of IO has falsely implicated him in the present case. No evidence in defence was led by the accused.
21. I have heard, Ld. Addl. PP (substitute) for the state and Ms. Usha Rani, Ld. Legal Aid Counsel for the accused and have also gone through the records of the case.
22. It is urged by the Ld. Addl. PP (substitute) for the state that on the Sessions Case No: 518/17 Page 7 of 20 8 basis of the evidence recorded and the material available on record, accused is liable to be convicted. He further urged that PW 1 Gulshan who is the injured / complainant has fully supported the case of the prosecution and his testimony could not be shaken during cross examination and he is a truthful and reliable witness. He further stated that at the time of the incident accused was having an iron rod in his hand and he also exhorted complainant "Aaj Tera Kaam Tamam Ker Dunga", so the act of the accused was premeditated and he had the requisite intention or knowledge to commit culpable homicide no amount to murder, therefore, he is liable to be convicted U/s 308 IPC.
23. On the other hand, it is submitted by the Ld. Legal Aid counsel for the accused that the accused is innocent and he has been falsely implicated in the present case. She further urged that injured / complainant Gulshan fell down at Rithala Metro Station on some pointed object which was lying on the road as a result of which he sustained injury. She further urged that the weapon of offence i.e. rod could not be recovered which falsify the story put fourth by the prosecution that accused inflicted injury on the person of the complainant by rod. She further urged that accused has been falsely implicated by the complainant as he had an altercation with the accused on previous occasion.
24. In the alternative, she argued that if the accused is liable to be convicted, he should be convicted U/s 324 IPC and not U/s 308 IPC because he had no intention or knowledge to commit culpable homicide not amounting to murder and if that was so he would have given repetitive blows on the head of injured / complainant.
Sessions Case No: 518/17 Page 8 of 20 925. The most material witness of the case is PW 1 Gulshan who is the injured / complainant. PW 1 Gulshan has deposed that he has been working as a driver on Gramin Seva and used to ply Gramin Seva from Begum Pur to Rithala Metro Station. PW 1 correctly identified the accused in the Court and stated that accused Sonu Pal is also a driver and he also used to ply Gramin Seva vehicle on the route of Begum Pur and Rithala Metro Station.
26. He further deposed that on 17022017, at about 11 a.m., after taking the passengers, he started from Begum Pur to Rithala Metro Station and when he reached at Rithala Metro Station and taking money from the passengers, accused Sonu Pal brought his Gramin Seva and started altercation with him on the lifting of passengers. PW 1 further deposed that accused was carrying iron rod and he started saying "he would finish me (aaj tera kaam tamam kar dunga)" PW 1 further deposed that accused hit iron rod on his head due to which he fell down and sustained injury and blood stared oozing out from his head.
27. PW 1 further deposed that one Ashok who was also a driver of one Gramin Seva took him to Dr. B.S.A. Hospital and got him treated there. He further deposed that his brother Mannu met them on the way to the hospital and he accompanied them.
28. PW 1 further deposed that police came to the hospital and recorded his statement which he proved as Ex. PW 1/A. PW 1 handed over his blood stained shirt which was worn by him at the time of incident to the IO and IO prepared sealed pullanda of the same. He further deposed that IO took the Sessions Case No: 518/17 Page 9 of 20 10 possession of the same vide seizure memo Ex. PW 1/B. PW 1 further deposed that in the evening of the same day, he had shown the place of incident to the IO who prepared the site plan which PW 1 proved as Ex. PW 1/C. He further deposed that thereafter accused Sonu Pal was arrested at his instance from Budh Vihar vide arrest memo Ex. PW 1/D. PW 1 identified his blood stained shirt as Ex. P1 which he was wearing at the time of the incident.
29. In his cross examination by the Ld. Legal aid counsel for the accused, PW 1 stated that accused was arrested at about 8:309:00 a.m He further stated that his supplementary statement was recorded at Rithala Metro Station. PW 1 denied that he was not plying Gramin Seva as per scheduled time allotted for his Gramin Seva. He further denied that he fell down at Rithala Metro Station on some pointed object as a result of which he sustained injury. He further denied that accused has not caused any injury to him by rod and for this reason no rod had been recovered. He also denied that accused has been falsely implicated in the present as an altercation had taken place between him and the accused on previous occasion. He denied that the accused has been falsely arrested.
30. PW 1 (injured / complainant) has fully supported the case of the prosecution and nothing material has come out from his cross examination to discredit his testimony. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustains injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real Sessions Case No: 518/17 Page 10 of 20 11 culprit to go scot free and would falsely implicate any other person. In Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], the Supreme Court held as under:
'28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P., (SCC p. 606bc), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. And Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 72627, paras 2829) '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 Sessions Case No: 518/17 Page 11 of 20 12 time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the 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.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
31. To the similar effect is the judgment reported in Mano Dutt and Anr. v.
State of UP, (2012) 2 SCC (Cri) 226.
Sessions Case No: 518/17 Page 12 of 20 1332. The complainant PW 1 Gulshan has stated in his testimony that accused is also a driver and he also used to ply Gramin Seva vehicle on the route of Begum Pur and Rithala Metro Station, so there is no dispute with regard to the identify of the accused as the complainant was known to the accused beforehand.
33. PW 1 injured / complainant has categorically stated in his testimony that on 17022017, at about 11 a.m., when he reached at Rithala Metro Station and was taking money from the passengers, accused brought his Gramin Seva and started altercation with him on the lifting of passengers. PW 1 further deposed that accused was carrying iron rod and he started saying "he would finish me (aaj tera kaam tamam kar dunga)" and hit iron rod on his head due to which he fell down and sustained injury and blood stared oozing out from his head.
34. From the testimony of this witness it is crystal clear that it is the accused who had inflicted injury on the person of injured / complainant PW 1 with iron rod because of which he received injuries as shown in his MLC which is Ex. PW 8/A on which PW 8 Dr. Rohit Kansal, SR (Dental) gave his opinion regarding the nature of injury as "simple" vide his endorsement Ex. PW 8/B. PW 9 Dr. Saurabh Mishra who is SR (Surgery) has also gave his opinion on the MLC Ex. PW 8/A from surgical point of view as "simple" in nature vide his endorsement Ex. PW 9/A on the MLC of the injured Ex. PW 8/A. Similarly, as per radiological findings also the injuries were "simple" in nature from Neuro surgical side which has been opined my Dr. Manish on the MLC Ex. PW 8/A as deposed by PW 11 Dr. Gagendra Singh Sandhu who was deputed by Sessions Case No: 518/17 Page 13 of 20 14 Medical Superiendentant, Dr. BSA Hospital to depose on behalf of Dr. Manish. PW 11 Dr. Gajendra Singh Sandhu, proved the opinion of Dr. Manish as Ex. PW 11/B on the MLC Ex. PW 8/A. So, the testimony of PW 1 finds corroboration from the medical evidence produced by the prosecution on record in the form of MLC Ex. PW 8/A. There is nothing in the cross examination of PW 2 to make his testimony unreliable and untrustworthy.
35. PW 2 Mannu is the brother of PW 1 Gulshan who alongwith PW 3 Ashok got PW 1 admitted in B.S.. Hospital. PW 2 though is not an eye witness of this case but he has categorically stated in his testimony that when he reached at Rithalal Metro Station he saw that blood was oozing out from the head of his brother Gulshan. He also deposed that on the way to the hospital his brother told him that accused Sonu had caused him injury on his head with iron rod. In his cross examination by the Ld. defence counsel he denied that his brother Gulshal fell down at Rithala Metro station on some pointed object lying on the road as a result of which he sustained injury.
36. Similarly, PW 3 Ashok has also deposed that on 17102017, at about 11:15 a.m when he reached at Rithala Metro Station he saw Gulshan was lying on the road in injured condition near his vehicle, so he immediately made a telephonic call from the mobile of Gulshan to his brother Manu and called him. PW 3 also deposed that he noticed that blood was oozing from the head of Gulshan and on reaching of Mannu there, he alongwith Manu got PW 1 admitted in BSA Hospital. In his cross examination this witness stated that he had not seen as to who had caused injury to Gulshan.
Sessions Case No: 518/17 Page 14 of 20 1537. Both PW 2 and PW 3 have corroborated each other with regard to the receiving of injury by PW 1 Gulshan and oozing of blood from his head at Rithala Metro Station which is the place of incident. PW 6 Davinder who is the registered owner of gramin seva bearing registration No. DL2W3978 has deposed that in the morning of 17022017 accused Sonu Pal took his aforesaid vehicle for driving. In his cross examination he denied that Sonu Pal was not driving his aforesaid vehicle.
38. Therefore, the testimonies of PW 2 and PW 3 further fortifies the testimony of PW 1 with regard to his receiving injuries on his head at Rithala Metro Station which according to PW 1 has been caused by the accused. No suggestion has been given to PW 1, PW 2 and PW 3 that accused was not present at Rithala Metro Station at the time of the incident.
39. It is urged by the Ld. Legal Aid Counsel for the accused that the weapon of offence i.e. rod in the present case could not be recovered and this non recovery of the weapon of offence creates dent in the case of the prosecution.
40. As far as the question of non recovery of weapon of offence is concerned the record reveals that accused Sonu Pal was arrested on 17022017, and as per his disclosure statement he had thrown the weapon of offence in a running tempo and PW 7 ASI Shiv Ram who is the IO of the case has deposed in his testimony that the accused could not get recovered the weapon of offence.
41. Moreover, mere non recovery of weapon of offence is not a factor Sessions Case No: 518/17 Page 15 of 20 16 from which the accused can get any benefit. In Mohinder Vs. State, 2010 VII AD (Delhi) 645, it has been held that non recovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the case. Therefore, in view of the above discussions, I have no hesitation to hold that it was the accused who had inflicted injuries on the person of injured / complainant PW 1 with iron rod.
42. Defence of the accused : In his statement U/s 313 Cr.P.C the accused has taken the defence that PW 1 sustained injuries by falling of his own. He also stated that PW 1 used to ply gramin seva on the same route and for this reason he had small altercation with PW 1 which was compromised but PW 1 with the connivance of IO has falsely implicated him in the present case.
43. The defence taken by the accused is a very weak defence and the same cannot be believed in the peculiar facts and circumstances of this case because no details has been given by the accused with regard to his altercation with the complainant / injured (PW 1). No date, time and place has been mentioned by the accused as to when and where he had the altercation with the complainant. The accused has also stated in his statement U/s 313 Cr.P.C that he has been falsely implicated but no complaint has been lodged by the accused with the higher authorities with regard to his false implication in the present case. It is stated by the accused that complainant received injury by falling of his own, but again no details has been given by the accused as to how the complainant (PW 1) received injury by falling of his own and how he fell.
44. PW 1 is the injured witness and superior Courts (supra) have held that Sessions Case No: 518/17 Page 16 of 20 17 the testimony of the injured witness is considered reliable unless impeached by convincing evidence which has not come forth in the instant case. Nothing has come on record to discredit the testimony of PW 1 so as to make him unreliable. The accused has also not been able to prove on record any reason as to why PW 1 injured would falsely implicate him and let go his actual assailant.
45. Therefore, in view of the above discussions, I have no hesitation to hold that it was the accused who had voluntarily caused "simple" injuries on the person of injured complainant (PW 1) by giving rod blow to him.
46. Now it is required to be seen whether the offence U/s 308 IPC is made out or not against the accused for which I need to take note of few other imperative and germane aspects in order to find out whether the accused had any intention to commit culpable homicide not amounting to murder or not.
47. Nothing has been brought on record to show that there was any premeditation or deliberate intention of the accused to eliminate the injured. The accused caused injuries on the person of injured PW 1 by a rod. Burden is on the prosecution to prove both, namely (i) the act (actus reus) and (ii) the intention (mens rea). It is also required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of culpable homicide not amounting to murder. Naturally, the intention or knowledge of such circumstances is to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard. Such part related to intention and knowledge would, Sessions Case No: 518/17 Page 17 of 20 18 therefore, depend on the facts and circumstances of each case.
48. The nature of injury in the instant case is "simple" and it alone cannot be said to be a lone decisive factor. Reference can be made to Singhasan Vs. State of NCT of Delhi 2014 [2] JCC 1184. In that case, as per the story of complainant, accused had given a blow on the head of Sangeeta Devi with an iron rod whereas one another accused had given danda blow on the head of one another injured person as well as on other parts of his body. Injured Sangeeta Devi had, as per the MLC, suffered CLW (clean lacerated wound) on her parietal region. Besides aforesaid injury, she was having abrasion over her face. Hon'ble High Court held that it would be difficult to say that accused had caused injuries with the intention and knowledge to commit culpable homicide not amounting to murder. Resultantly, sentence of accused was converted from Section 308 IPC to Section 324 IPC.
49. In Ramakaran Thr. Parokar Sushila Vs. State 2014 [2] JCC 1699, accused persons had given saria blow on the head of the injured due to which he became unconscious. Learned trial court convicted all the accused for offence under Section 308/34 IPC. In that case also, saria could not be recovered during the investigation. It was held by Hon'ble Delhi High Court that even if a steel pipe was used in the incident, it would be difficult to hold that accused had acted with such intention and knowledge and under such circumstances that if by that act he had caused the death of complainant, he would have been guilty of culpable homicide not amounting to murder. It was also observed that the quarrel broke out between two sides and that there was Sessions Case No: 518/17 Page 18 of 20 19 no perplanning or premeditation. Resultantly, conviction was altered from Section 308 IPC to Section 323 IPC.
50. In the case of Bishan Singh and Anr. Vs. The State (2007) 13 SCC 65, the injured had suffered seven injuries including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also suffered fracture with dislocation of wrist joint and the Apex Court instead of convicting accused under Section 308 IPC held that case would fall under Section 323/325 IPC. It was also held that before accused could be held guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge were existing.
51. In the light of the above said case law it can be seen that though the accused has inflicted injuries on the head of the complainant / injured (PW 1) but as per the facts of this case and evidence brought on record, it is difficult to say that the accused had caused injuries with the intention or knowledge to commit culpable homicide not amounting to murder. This I say because there is no evidence on record to show that the act of the accused was premeditated and preplanned and it appears from the evidence that only one blows was given and there were no repetitive blows. No doubt at the time of the incident accused was carrying an iron rod and before hitting iron rod on the head of PW 1 accused exhorted PW 1 "Aaj Tera Kaam Tamam Ker Dunga"
but this exhortation in my opinion does not mean that the accused had the intention to cause death of injured / complainant (PW 1) because if that was so, the accused would have given repetitive blows with iron rod on the head of Sessions Case No: 518/17 Page 19 of 20 20 injured (PW 1) but this is not the case here and as per the testimony of PW 1 only one rod blow was given by accused on his head. Moreover, there is nothing in the testimonies of the doctors who have been examined as PW 8, PW 9, PW 10 & PW 11 that the injuries were sufficient in ordinary course of nature to cause death. No question has been asked by the Ld. Addl. PP (substitute) from PW 8, PW 9, PW 10 & PW 11 that the injuries caused by the accused on the person of complainant is sufficient to case death.
52. In view of my discussions mentioned hereinabove and keeping in view the peculiar facts and circumstances of this case, I am of the considered opinion that the accused had neither any intention nor knowledge to commit culpable homicide not amounting to murder. Accordingly, I hold accused guilty, for the offence under Section 324 IPC and convict him thereunder. (Announced in the open Court today i.e. on 05042018.) (RAJNISH BHATNAGAR) DISTRICT & SESSIONS JUDGE NORTH / WEST DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 518/17 Page 20 of 20