Delhi District Court
State vs . (1) Ompal S/O Sh. Nobat Ram on 16 April, 2010
FIR No. 309/05 1
IN THE COURT OF SHRI. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESSIONS CASE NO. 100/ 2008/2007
State Vs. (1) Ompal S/o Sh. Nobat Ram
R/o Vill. Garoiya P.S. Kumar Gaon
Distt Badaun (U.P. )
Present Add:
House of Dewan, Near Nalah
Vill. Jasola, New Delhi.
(2) Net Ram S/o Dwarka Parsad
R/o H. No. 13, Jaggan Colony
Vill. Jasola, New Delhi
(3) Raju S/o Ompal
R/o House of Dewan Kumar
Near Ganda Nalah Vill Jasola
New Delhi Sarita Vihar
FIR No. 309/2005
Police Station Sarita Vihar
Under Section 308/323/506/509/34 IPC
Date of Institution of
this case in Sessions
Court on 07.06.2007
Date of Institution of
this case in this
Court on 25.09.2008
Date on which order
was reserved 07.04.2010
FIR No. 309/05 2
Date of decision 12.04.2010
JUDGMENT
The SHO of Police Station Sarita Vihar has filed challan against the accused persons in the court of learned Metropolitan Magistrate, New Delhi for the trial of the accused persons for the offences under Sections 308/326/325/354/509/506/34 IPC. After supplying the copies to the accused persons and compliance of provisions of 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 persons. BRIEF FACTS Prosecution case in brief is that on 22/9/2004 DD No. 25A was lodged at police station Sarita Vihar copy of which given to Sub Inspector Hari Parkash who went to the spot at village Jasola, New Delhi and came to know that injured persons had been taken to hospital. Thereafter he went to AIIMS where MLCs of injured Ompal, Sunil Kumar, Smt Munni Devi, Raju, Lala Ram and Ram Singh were received by him. Accused Raju was also X rayed on 23.9.04 at 6 AM. During patrolling duty, Sub Inspector Hari Prakash went to village Jasola and found that both parties have quarreled with each other and from one side was Ompal and his son, Raju and on the other side Sunil, Lala Ram and Ram Singh . On inquiry it was FIR No. 309/05 3 found that Sunil who is brother of Lala Ram misbehaved with Nanhi @ Seema. Sunil was beaten by Raju cousin of Seema. On this both parties fought with each other. Preventive action was taken and Kalandra under Sections 107/151 CrPC was prepared against both the parties. Thereafter the complainant Lala Ram filed an application under Section 156(3) CrPC against the accused persons and on the direction of learned Metropolitan Magistrate a case was registered and investigation was conducted. Statement of the witnesses were recorded and on completion of the investigation, accused persons were challaned to face trial for the offences under Sections 308/323/506/509/34 IPC.
CHARGES AND PLEA OF THE ACCUSED PERSONS Prima facie case for the offences punishable under Sections 308/506/509/34 IPC was found made out against the accused persons Accordingly charges were framed against the accused persons on 28/05/08 to which they pleaded not guilty and claimed trial. PROSECUTION WITNESSES In support of its case, prosecution examined eleven witnesses in all namely PW1 Lala Ram, PW2 Munni Devi, PW3 Satpal, PW4 Sunil, PW5 Head Constable Ravinder Singh, PW6 Ram Singh, PW7 Constable Kalyan Singh, PW8 Dr Sanjay Kumar, PW9 Constable Avdesh Kumar, PW 10 Dr FIR No. 309/05 4 Surjit Kumar and PW 11 Sub Inspector Hari Parkash Gulia. It would be appropriate to have a gist of statement of these witnesses.
PW1 is Lala Ram, complainant who stated that he was working as driver with Jain Water Supply and was driving the tanker of water. His brother Satpal had consumed liquor and was abusing him. His brother Satpal came back to his house and his wife went to toilet. He also stated that his brother Satpal was being given beating by Ompal and Raju. When, he objected they gave saria and danda blows to him and his two teeth were broken. After he received danda blow on his teeth at head and forehead he ran away from there. He also stated that he gave complaint to the police Ex. PW 1/A. PW2 is Munni Devi wife of Lala Ram who also stated that accused persons gave her beating and beating to her Jeth and her husband and her Devar Sunil. She received injuries on her elbow and accused Raju gave her saria blow.
PW3 is Satpal who stated in brief that accused Ompal, Raju, Jasbir and Het Ram gave beatings to them with lathi and danda as a result of which he, his brother Lala Ram Singh and Sunil sustained injuries. Ram Singh sustained head injury.
PW4 is Sunil who stated in brief that on 22/4/04 at 8 PM, he came to FIR No. 309/05 5 his house form his duty. Accused Ompal started beating Satpal in front of his house. He and his brother Lala Ram also reached there. Accused Ompal, Raju and Hetram started beating them with danda. After receiving injuries, he fell down and became unconscious. This witness was resiling from his previous statement and so was cross examined by learned Additional Public Prosecutor and witness admitted in the cross examination that the occurrence took place on 22/9/04 and not on 22/4/04.
PW5 is Head Constable Ravinder Singh, duty officer who proved the copy of FIR in this case as Ex. PW 5/A and his endorsement on the rukka Ex. PW 5/B. PW6 is Ram Singh who stated that he had gone to the house of his relative Lala Ram in village Jasola. At about 8 PM, a quarrel took place with Satpal behind the house of Lala Ram. Accused Ompal, Raju, Arvind and Jasbir gave beating to him. They also gave beating to Lala Ram, Sunil and Munni devi with saria and danda.
PW7 is Constable Kalyan Singh who stated that on 24/10/05 he joined the investigation of this case and reached at village Jasola. At about 8 PM, secret information was received by investigating officer that accused Ompal who was wanted in this case would come to his house. They reached there and arrested accused Ompal his son Raju and his relative FIR No. 309/05 6 net Ram. He proved arrest memos of accused persons as Ex. PW 7/A, Ex. PW 7/B and Ex. PW 7/C and their personal search memos as Ex. PW 7/D, Ex. PW 7/E and Ex. PW 7/F. PW8 is Doctor Sanjay Kumar who proved MLC of Munni Devi is Ex. PW 8/A. PW9 is Constable Avdesh Kumar who stated that kalandra dated 23/9/04 stood destroyed and the copy of relevant order is proved by him as Ex. PW 9/A. PW 10 is Dr Surjit Kumar who proved the MLCs of Lala Ram, Sunil Kumar and Ram Singh as Ex. PW 10/A, Ex. PW 10/B and Ex. PW 10/C. PW 11 is Sub Inspector Hari Prakash Gulia who proved various steps taken by him during investigation. He stated that he collected complaint Ex. PW 1/A and FIR Ex. PW 5/A. He prepared site plan Ex. PW 11/A, recorded statement of witnesses under Section 161 CrPC during investigation.
PLEA AND DEFENCE OF THE ACCUSED The accused persons in their statements under Section 313 CrPC have either denied the questions put to them pertaining to incriminating evidence emerging from the prosecution case or have expressed their ignorance about them. They stated that it is a false case. Witnesses are FIR No. 309/05 7 interested witnesses. They are innocent and have been falsely implicated in this case. Accused persons did not lead any evidence in their defence. ARGUMENTS AND FINDINGS The learned Public Prosecutor for the State has argued that there are four injured witnesses who have supported prosecution case. The medical evidence also supports the prosecution case and corroborates with testimonies of public witnesses. Injured persons suffered head injuries. Therefore, the charges against the accused persons are proved beyond reasonable doubt and they are liable to be convicted for the same.
The arguments of learned counsel for accused persons are that the injured persons are alleged to be admitted in Sanjivan Hospital but the MLC of the injured is from AIIMS hospital. It is argued that accused Net Ram is neither named in the FI R nor in the complaint under section 156 (3) CrPC. In the said complaint one Het Ram is named and not the accused Net Ram. It is argued that no weapon of offence is recovered and there is a delay in lodging the FI R of more than nine months. It is argued that the witness of prosecution Lala Ram in fact lost his teeth in a vehicular accident and not in the incident in question. He in his cross examination has stated that no incident took place on 23/9/2004. The MLC of injured Munni Devi is not recorded on the date of incident on 22/9/2004 and is FIR No. 309/05 8 recorded after two days. Therefore, prosecution has failed to prove its case against the accused persons beyond reasonable doubt and the accused persons are entitled to be acquitted of the charges.
I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused persons and have gone through the record of the case and relevant provisions of law.
In this case the witnesses of prosecution PW1 Lala Ram, PW2 Munni Devi, PW3 Satpal, PW4 Sunil and PW6 Ram Singh are the public witnesses is examined by the prosecution and they by their corroborated statements have identified the three accused persons in the court at the time of recording of their statements as the persons who have caused injuries on the person of the four injured persons in this case. The four injured persons PW1 Lala Ram, PW2 Munni Devi, PW4 Sunil, PW6 Ram Singh are amongst the public witnesses examined by the prosecution in this case and have supported the prosecution case. There is nothing in the cross-examination which may discredit their testimonies as to the fact that accused persons as the assailants or as to the date time and place of the occurrence. It does not matter if the name of accused Net Ram was not given in FIR or in the complaint filed before learned Metropolitan Magistrate his name was given as Het Ram and not Net Ram. It also does FIR No. 309/05 9 not matter that weapon of offence were not recovered, in the face of convincing public witness account. It does not matter that there was delayed FIR when the complainant had to seek intervention of learned Metropolitan Magistrate for direction under Section 156(3) CrPC for lodging the FIR due to inaction of police to record it earlier. Therefore, these four injured persons and the witness PW3 Satpal have by corroborated evidence proved that the accused persons caused injuries on the person of four injured persons. The MLC's of the four injured persons Ex. PW 10/C, Ex. PW 10/B, Ex. PW 8/A and Ex. PW 10/A also corroborates their statements that these four injured persons suffered injuries in the incident in question. But it is not enough in this case to come to the correct decision in the matter. There are some very important circumstance is which needs to be analysed.
The first question which arises is whether the offence under section 308 IPC or section 323 IPC or any other offence is attracted against the accused persons.
In Desh Raj's Vs. Kewal Krishan and Ors. 2010 (1) JCC 48 High Court of Delhi relied on behalf of accused persons, our Hon'ble High Court quoted some of the relevant observations made by learned trial court as follows:
FIR No. 309/05 10
" 18. On the other hand the victim Desh Raj had suffered one injury i.e. a CAW 5 cm x 2 cm long on his scalp; no other injury was noted; had been declared fit for the statement on the same day when his statement Ex.PW1/A was recorded by the Investigating Officer which has become the subject matter of the complainant. Incident was reported at about 1.10 AM on 04.01.1992 and FIR was registered at 2.25 AM within a span of one hour.
19. Court had gathered the intention and knowledge on the part of the accused person from his oral and ocular versions of PW1 and PW2 as also the manner in which the assault had taken place; the part of the body on which the injury had been caused. The fact that the only one injury has been suffered by the victim; the fact that all the three accused persons were armed with three separate weapons i.e. a danda, an iron rod and a thapi yet the injury was a single blunt blow on the scalp of Desh Raj; had the accused persons the criminal intention to cause death they could have caused the death and injuries would have been in the plural and would have been on other vital parts of the body as well. The single simple blow injury suffered by Desh Raj had led the Court to conclude that the offence made out against the accused persons is one under Section 323 of the IPC."
After examining the matter the following observations were made by our Hon'ble High Court:
" 21. This Court is also of the view that the accused persons are guilty of the offence punishable under Section 323 of the IPC only and the ingredients of Section 308 of the IPC are clearly not made out. Nature of the injury suffered by a victim may not always be true test to determine the offence committed by him, yet the ocular versions of PW1 and PW2 as also the medical record clearly establish that the accused persons had been rightly convicted for the offence under Section 323 of the IPC. Conviction of the accused persons for a graver offence is not called for.
Therefore in Desh Raj's case (supra), like the present one our FIR No. 309/05 11 Hon'ble High Court has confirmed the findings of the learned trial court that accused is liable to be convicted under section 323 IPC and not under section 308 IPC. What is important that the said simple injury in the said case was CAW 5 cm x 2 cm on the head of the victim.
In Ramesh & Anr. vs. State 2010 (1) LRC 270 (Del) decided recently by our Hon'ble High Court, the allegations against the accused persons were that they gave beatings to the complainant party by danda and saria (iron rod). Our Hon'ble High Court analysed the fact situation to ascertain whether Section 308 IPC is attracted to the Ramesh's case (supra) and though there was injury on the right temporal-parietal region and bleeding was found but it was held that merely because of an injury found on the head, it cannot be said that said injury was caused with the intention to commit culpable homicide not amounting amounting to murder.
In Bishan Singh & Anr. vs. The State 2007 (4) Crimes 177 (SC) relied on behalf of accused persons, the following observations were made:
" 11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They FIR No. 309/05 12 had previous enmity. Although over-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof."
In Jangir Singh & Ors. vs. State of Punjab 1988 (1) C.L.R. 569 High Court of Punjab & Haryana, it was held that merely because injury has been found on the head, it cannot be assumed that accused had intention or knowledge to cause such injury that had the death been caused, they would have been guilty of murder.
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 Sections 308/34 was set aside and instead they were convicted under Section 323 {See Ashok Kumar v State (1996) 1 Chand Cr Case 154 (Del) (DB)}.
It was observed as follows:
" 16. In Velu vs. State 2004 Cri.L.J. 3783, there was a dispute between the appellant and the injured when the appellant parked his vehicle in front of the vehicle of the injured. The appellant caused injury on the backside scalp of FIR No. 309/05 13 injured using an iron pipe for this purpose and run away from the spot. It was held by the Madras High Court that the blow having been given in a spur of moment and there being no pre-plan or pre-mediation, the offence under Section 308 IPC was not made out against the appellant.
17. The offence under Section 308 of IPC does not stand established from the facts and circumstances of the present case. The appellant is guilty only of offence punishable under Section 323 of IPC for having cause hurt to Mahipal."
In view of the above, case law I hold that though the accused persons are charged with the offence under section 308/34 IPC but the offence looks to be proved against them on the basis of the three MLCs Ex. PW 10/C, Ex. PW 10/B, Ex. PW 8/A and Ex. PW 10/A is causing simple injuries with blunt object. But further analysis of the matter is required.
The question arises whether offence under section 323/34 IPC is attracted against the accused persons for causing simple injuries with blunt object on the person of the three injured persons. As regards the injured Lala Ram his MLC PW.10/A shows the broken teeth besides the simple injuries on his persons. This show that he suffered grievous injuries as defined in section 320 IPC. There is no convincing material on record to show that injured PW1 Lala Ram suffered grievous injuries in a vehicular accident. The question is whether the offence under section 325/34 IPC is FIR No. 309/05 14 attracted against accused persons on the basis of grievous injuries on the person of injured Lala Ram. For this and for ascertaining whether the offence under section 323 IPC is attracted for causing simple injuries with blunt object on the person of the other three injured persons the facts and circumstances of the case are to be properly appreciated.
It is a case in which the four persons are injured from the complainant side who have also testified before the court against the accused persons. But during the investigation the investigating agency has also collected MLC of the two accused persons namely Raju son of Om Pal who suffered lacerated wound and also abrasions on his body and accused Om Pal who sustained. Simple injuries on his forehead, abrasions on left-hand with blunt object in the incident in question. These two MLCs are part of the judicial record and are filed on behalf of investigation agency/prosecution so there can be taken as admitted document on behalf of prosecution though are not formally proved from the doctor concerned. Therefore, injuries are suffered from both sides in the incident in question and it looks to be case of free fight between the complainant party and accused party though from the side of complainant party four persons were injured and from the side of the accused party only two accused persons were injured. The fact that the fight took place between FIR No. 309/05 15 the parties is also established by the police report Ex. PW 11/DA submitted to learned Additional Chief Metropolitan Magistrate, New Delhi by PW 11, SI H.P. Gulia duly forwarded through SHO concerned. The cause of fight between the parties is stated in this report as well as in the police challan that injured PW4 Sunil son of Ram Bharose (brother of Lala Ram injured) used to misbehave with Nanhi @Seema due to which accused Raju (cousin of Seema) had beaten the prosecution witness/injured Sunil. Both parties became aggressive after that and fought with each other on this issue. In the given facts and circumstances of the case I am of the considered view that for causing simple injuries on the persons of the three injured persons, referred before the offence under section 334 IPC and for causing grievous injuries on the person of Lala Ram the offence under section 335 IPC is attracted as there certainly was grave and sudden provocation on the part of complainant party, with the injured Sunil misbehaving with Nanhi @Seema which led to both parties fighting with each other. Therefore, though accused persons are charged with the offence under section 308/34 IPC but the offences proved against them are 334/34 IPC for causing simple injuries with blunt object on the person of these injured persons and under Section 335/34 IPC for causing grievous injuries on the person of the injured Lala Ram with blunt object FIR No. 309/05 16 Regarding the charge under section 506/34 IPC in the complaint Ex. PW 1/A, the injured Lala Ram has stated that the accused persons are threatening him and his family members against their personal property that if any complaint is lodged with the police or in the court or with other department then they will face bad consequences and next time they would not be spared, meaning thereby they would be killed or got killed and also they would be implicated in the falsely cases to destroy their lives. But in the statement made before the court in the examination-in-chief PW1, Lala Ram has stated that accused Arvind and Raju wrongfully arrest and him when he was going to his duty and threatened him to withdraw the case otherwise they will kill him as they have already committed murder in village. It is pertinent to note that there is no accused Arvind who is facing trial in this case and how and under what circumstances PW1 Lala Ram has taken his name is for the reasons best known to him. The accused Raju is an accused in this case and is named in the complaint made to the police Ex. PW 1/A. Further in the complaint Ex. PW 1/A, PW1 Lala Ram has stated that the accused persons have threatened not to lodge complaint against them or make any complaint to any authority but here, in the court, in the examination-in-chief he has stated that he was threatened to withdraw the case otherwise they would kill him as they had committed FIR No. 309/05 17 murder in village. Therefore, there are apparent substantial variance in the manner in which alleged threat is extended by accused persons in the complaint Ex. PW 1/A and in the examination-in-chief of PW1 Lala Ram in which he has named only one accused Raju and gave name of another person Arvind who is not accused in this case and has not named any other accused and also on account of the fact that none of the other public witnesses have testified about any threat to kill extended by any of the accused persons to the complainant party, I am of the considered view , that the prosecution has not been able to prove its case against accused persons for the offence under section 506/34 IPC beyond reasonable doubt.
As regards the offence under section 509/34 IPC, even the injured PW2 Munni Devi has not stated anything in her examination-in-chief to infer that the accused persons or either of them, to insult the modesty of Munni Devi uttered some words or made some sound and gestures. No prosecution witness has also testified in support of this charge again the accused persons under section 509/34 IPC. Therefore, the prosecution has also failed to prove beyond reasonable doubt the charge under section 509/34 IPC against either of the accused persons. FIR No. 309/05 18 RESULT OF THE CASE In view of the above discussion, the prosecution has failed to prove its case against the accused persons beyond reasonable doubt for the charges under sections 506/34 IPC and 509/34 IPC. The accused persons are acquitted of the said charges under sections 506/34 IPC and 509/34 IPC. However, the accused persons charged with offence under section 308/34 IPC are liable to be convicted for causing simple injuries with blunt objects on grave and sudden provocation in the free fight between the parties on the person of three injured persons. Sunil Kumar, Ram Singh and Munni Devi under section 334/34 IPC and for causing grievous injuries on the person of Lala Ram injured on grave and sudden provocation in the free fight between the parties under section 335/34 IPC. The accused persons are accordingly convicted for the offences under section 334/34 IPC and 335/34 IPC accordingly. Let the accused persons be heard on the point of probation/sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The file be consigned to the record room. Announced in the open court on 12.04.2010 (S.K.Sarvaria) Additional Sessions Judge-01/South Patiala House Court FIR No. 309/05 19 IN THE COURT OF SHRI. S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01/SOUTH PATIALA HOUSE COURT/NEW DELHI SESSIONS CASE NO. 100/ 2008/2007 State Vs. (1) Ompal S/o Sh. Nobat Ram R/o Vill. Garoiya P.S. Kumar Gaon Distt Badaun (U.P. ) Present Add:
House of Dewan, Near Nalah Vill. Jasola, New Delhi.
(2) Net Ram S/o Dwarka Parsad R/o H. No. 13, Jaggan Colony Vill. Jasola, New Delhi (3) Raju S/o Ompal R/o House of Dewan Kumar Near Ganda Nalah Vill Jasola New Delhi Sarita Vihar FIR No. 309/2005 Police Station Sarita Vihar Under Section 334/335/34 IPC ORDER Vide my judgment of dated 12.04.2010 the three convicts/accused persons are convicted for the offences under Sections 334/335/34 IPC.
Ld. Addl PP has argued for deterrent punishment against accused persons keeping in view the nature of the crime committed by convicts.
Learned counsel for convicts has argued that convicts are sole FIR No. 309/05 20 bread earners of their families and are not the previous convicts so they may be released on probation.
I have heard learned Additional Public Prosecutor for State and learned counsel for convicts/accused persons on the point of sentence/probation.
In view of the fact that no previous conviction for any offence is alleged or proved against the convicts/accused persons and also having regards to age, character and antecedents of the convicts/accused persons and the offences in which they are convicted and the fact that convicts/accused persons have faced trial for more than five years, I feel it is expedient, in the interest of justice that the convicts/accused persons should be released on probation of good conduct, therefore, instead of sentencing them to any punishment, I direct that convicts Ompal, Net Ram and Raju be released on probation on furnishing personal bonds in the sum of Rs. 15,000/- each with one surety each 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 bonds and surety bonds furnished by convicts/accused persons during investigation and trial of the case are cancelled. The FIR No. 309/05 21 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 16.04.2010 (S.K.Sarvaria) Additional Sessions Judge01/South Patiala House Court