Delhi District Court
State vs . Nitin Kumar Sharma & Anr. on 22 November, 2013
State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08
PS Palam Village
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR No. 25/08
PS Palam Village
U/S : 324/34 IPC
State V/S Nitin Kumar Sharma & Anr.
C/No. 227/2
U.ID No. 02405R0768772009
Date of Institution: 20.02.2009
Name of the Complainant Guddu Yadav s/o Sh. Krishan
r/o Alma Hasan Nagar, Yadavo
wali Milk, PS & Post Basnahal,
Dist. Mainpuri, Tehsil Karhail,
U.P.
Name and address of accused Sanju Solanki s/o Om Prakash
r/o WZ 327, Palam Village, Delhi
Charge framed against accused U/S 324/34
Plea of accused pleaded not guilty
Final Order Convicted
Date of reserve for orders 18.11.2013
Date for announcing the orders 26.11.2013
The brief facts and pre trial procedure
1.Charge U/S 324/34 IPC was framed against the accused that on 14.10.2008 at about 07.45 PM at Old Mehrauli Road, near Shiv Market, Raj NagarII, Palam Colony within the jurisdiction of PS Palam village the accused along with Nitin (since PO), voluntarily caused simple injury on the C/No. 227/2 Page No. 1 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village person of complainant Guddu Yadav by a sharp weapon (ustara) and thus thereby committed an offence u/s 324/34 IPC to which he pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 9 witnesses in the list of witnesses and but could examine only 7 out of them. PE stood closed on 05.10.2013. Thereafter, statement of accused U/S 313 CrPC was recorded in which accused pleaded his innocence. No defence evidence was led by accused.
3. During the trial the accused Nitin Kumar Sharma was declared proclaimed offender vide order dated 24.09.2011.
4. PW1 Dr. Y.N. Maurya deposed that Guddu was brought by HC Ram Chander, No. 8753/PCR for medical examination with alleged history of assault as told by himself and brought by him. On examination patient was conscious and oriented and his vitals were stable. On local examination, there was one clean incised wound on neck about 4 cm x 0.5 x 0.5 cm, there were two another clean incised wound on right hand measuring about 1.5 cm x 0.5 x 0.5 and 1 cm x 0.5 x 0.5 cm. Dr. Priyank Jain opined that these wounds were caused by sharp object and the nature of injury was simple. MLC No. 20318 which was prepared by Dr. Priyank Jain under his supervision on 14.10.2008 at 09.30 AM. PW1 identified the signature of Dr. Priyank Jain on MLC Ex. PW1/A.
5. PW2 ASI Jagdish Singh deposed that he was the Duty Officer at the relevant time who proved the FIR no. 25/08 as Ex. PW2/A and he also made his endorsement Ex. PW2/B on the rukka.
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FIR No. 25/08PS Palam Village
6. PW3 Ct. Lalit Kumar deposed that on 14.10.2008 on receiving of DD No. 62 A, at about 9.50 PM he along with SI Rajesh Shukla went to DDU Hospital where IO received MLC no. 20318 related to injured Guddu s/o Kishan and IO recorded the statement of Guddu and same was handed over to him for registration of FIR. IO instructed him to came at the spot WZ 327, Palam Village. He went to PS for registration of FIR and after registration of FIR, he came back at the spot WZ 327, Palam Village where IO and complainant were already present there, copy of FIR and original rukka was handed over to the IO. On the spot two persons were sitting on motorcycle bearing registration no. DL 9SQ 7554 whom the complainant identified and told that the person who were sitting on the motorcycle namely Sanju and pilion rider namely Nitin. In personal search of accused Nitin, he found one shaving blade (USTRA) in right pocket of his pant. IO prepared the sketch Ex. PW3/A of the USTRA. The same was seized by the IO vide seizure memo Ex. PW3/B. The USTRA was wrapped in white colour cloth and same was sealed with the seal of R S. Accused Nitin and Sanju were arrested by the IO vide arrest memos Ex. PW3/C and Ex. PW3/D and their personal search was conducted by the IO vide personal search memo Ex. PW3/E and Ex. PW3/F. The motorcycle of the accused persons was seized by the IO vide seizure memo Ex. PW3/G. Accused persons were medically examined in DDU Hospital and after medical examination, they were sent to lock up. IO recorded his statement. PW3 correctly identified the accused Sanju and the case property i.e ustra (shaving blade) as Ex.P1.
7. PW4 Guddu Yadav deposed that he was a driver in Converges, DLF, Gurgaon at the time of incident. On the day of incident in 2008 at about 8 PM when he was present at Raj Nagar along with an employed girl in Converges company, two persons came near his vehicle bearing registration C/No. 227/2 Page No. 3 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village no. DL 1 YA 8462 on the motorcycle and stopped his motorcycle besides the driving seat of the gate and tried to snatch the key of the vehicle, meantime one another person came near to him and caught his hair and hit back side of his neck from USTRA and when he tried to defend himself the accused hit on his right hand from USTRA also. Thereafter both the accused persons fled away from the spot. Meantime public persons gathered there. One child told the police that the assailant was son of some person. He was taken to DDU Hospital by police. After hospital police took him to the PS and by that time police had apprehended one accused person. Thereafter police got recovered the USTRA from the accused and arrested other accused person. Thereafter he left the PS for his home. IO prepared the sketch Ex. PW3/A of USTRA. Same USTRA was seized by the IO vide seizure memo Ex. PW3/B. IO seized his shirt vide seizure memo Ex. PW4/A. The vehicle belonging to the accused person bearing registration no. DL 9S Q 7554 was seized by the IO vide seizure memo Ex. PW3/G. Both the accused persons were arrested vide arrest memo Ex. PW3/C and Ex. PW3/D. Personal search of the accused persons were conducted by the IO vide personal search memo Ex. PW3/E and Ex. PW3/F. PW4 correctly identified the accused Sanju and the case property i.e Ustra as Ex. P2.
8. PW5 HC Karambir Singh deposed that on 28.11.2008 at about 10.00 AM he received two pulandas vide RC No. 6/21 and same was sent to CFSL Rohini at about 02.00 PM and same was deposited in FSL Rohinit vide order no. FSL 2008/B4634/3088 dt. 01.07.2009 and during this period the pulandas were not tampered.
9. PW6 Dr. Y.N. Maurya deposed that on 14.10.2008 at about 09.30 PM injured Guddu got admitted in DDU Hospital brought by HC Ram Chander with alleged history of assault as told by himself. As per Ex. PW1/A, as per C/No. 227/2 Page No. 4 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village injuries mentioned in the MLC the nature of injury was simple caused by sharp object. He correctly identified the signatures of Dr. Priyank Jain on MLC NO. 20318. On 15.10.2008 at about 01.40 AM injured Nitin Kumar Sharma got admitted in DDU Hospital brought by Ct. Lalit Kumar and his medical examination was conducted and MLC No. 20253 Ex. PW6/A was prepared in this respect by Dr. Ashish Kumar. PW6 correctly identified the signature of Dr. Ashish Kumar on MLC Ex. PW6/A.
10. PW7 SI Rajesh Shukla deposed that on 14.10.2008 on receipt of DD no. 62 A Ex. PW 7/A regarding the admission of one boy namely Guddu in injured condition in the DDU Hospital he along with Ct. Lalit reached at DDU Hospital where the injured was found admitted vide MLC no. 20318. He collected the MLC. He recorded the statement of injured Guddu Ex. PW2/B and prepared the rukka Ex. PW7/B and sent Ct. Lalit to the PS for registration of case. Injured handed over his blood stained shirt to him which was converted into pulanda and was sealed with the seal of RS. Pulanda was taken into possession vide seizure memo Ex. PW4/A. Thereafter he along with injured went to the spot i.e Old Mehroli Road, near Shiv Market, Palam Colony where he prepared the site plan Ex. PW7/C at the instance of the complainant. In the meantime Ct. Lalit also arrived at the spot and handed over to him the original tehrir and computerized copy of FIR. He was handed over DD no. 58 A Ex. PW7/A1 regarding the incident by ASI Ishwar Singh who had attended the same firstly. Thereafter he inquired about the number of motorcycle bearing no. DL 9 S Q 7554 as stated by the complainant in his statement and same was found to be of the address WZ 327, Palam Village. He along with complainant and Ct. Lalit reached at the said address where outside the house above mentioned motorcycle was stationed and two boys were sitting on the motorcycle.
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FIR No. 25/08PS Palam Village Complainant Guddu identified both the boys as Nitin and Sanju as accused persons. Both accused were apprehended. On the cursory search of accused Nitin, one "ustara " was found from the right side pant back pocket of worn pant of Nitin. The ustara was opened and he prepared the sketch Ex. PW3/A of the same. The ustra was converted into pulanda and sealed with the seal of RS and pulanda was seized vide seizure memo Ex. PW3/B. The motorcycle was seized vide seizure memo Ex. PW3/G. Accused Nitin and Sanju were arrested vide arrest memo Ex. PW3/C and Ex. PW3/D and their personal search were conducted vide memo Ex. PW3/F and Ex. PW3/E. Both the accused persons were got medically examined. Case property was deposited in malkhana and accused persons were put behind the lock up. On 28.11.2008 the sealed pulanda of the shirt and ustara were sent to FSL through Ct. Karambir vide RC NO. 6/21 to FSL Rohini for examination. He recorded the statement of witnesses during investigation. After competition of the investigation he prepared the challan and filed in the court. PW7 correctly identified the accused Sanju and case property i.e ustra (shaving blade) i.e Ex. P1 And red shirt as Ex. P2.
11. PW9 HC Vishram deposed that in store room register no.19. At Sr. no.25/26, entry relating to FIR No.25/08 dated 14.10.2008 u/s.324/34 IPC PS Palam Village is recorded in column no.2. SI Rajesh Shukla deposited the shirt vide entry no.25 and motorcycle Pulsar vide entry no.26. Entry is Ex.PW6/1.
Statement of accused and defence
12. After closure of prosecution evidence, the statement of accused person U/S 313 CrPC was recorded. When all the incriminating evidence was put to the accused person to afford him an opportunity to explain the circumstances so put to him, but did not offer a shred of evidence to prove C/No. 227/2 Page No. 6 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village his innocence except by saying that he is innocent and he has been falsely implicated. Further accused person did not lead any defence evidence in support of his claim of innocence.
Arguments and appreciation of evidence in the light of legal propositions
13. During the course of arguments it was argued on behalf of the accused Sanju that this case is foisted on accused Sanju by the prosecution as no particular role of accused Sanju has been shown by the prosecution in the alleged commission of offence. It is further submitted by the counsel for the accused that recovery is disputed and there is a contradiction with respect to the place of apprehension of the accused persons. It is further submitted by the counsel for the accused that motorcycle on which both accused persons allegedly came to the spot as per the prosecution story was not seized by the IO. It is further submitted by Ld. Counsel for the accused that the whole prosecution story is silent with respect to the motorcycle being driven by both accused persons. It is further submitted by Ld. Counsel for the accused that on the site plan prepared by the IO no signature of the injured are there. It is further submitted by the counsel for the accused that no notice u/s 133 MV Act has been given by the IO to the owner of the motorcycle whose number was revealed by the complainant. It is further submitted by Ld. Counsel for the complainant that PW4 identified the accused person in the court while PW4 had no opportunity to see the same accused at the time of commission of offence of offence and as such his version is unreliable. It is further submitted by Ld. Counsel for the accused that in this case the complainant told the home of the accused person to police and this creates doubt on the prosecution story how the complainant C/No. 227/2 Page No. 7 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village was aware the home of the accused person. Ld. Counsel for the accused pointed out that there is material discrepancy with respect of place of occurrence of offence as the spot was Old Mehrauli Road, however, the police investigation show different spot. Ld. Counsel for the accused further pointed out towards the contradiction with respect to the arrest of the accused persons.
14. On the other hand Ld. APP for the State vehemently opposed the arguments raised by Ld. Counsel for the accused and he rebutted the argument as cited by defence and submitted that there is ample evidence on record which shows the complicity of the accused in the crime.
15. I have given my thoughtful consideration to the submissions advanced by both sides. With respect to preliminary argument raised by Ld. Counsel for the accused that the complainant did not identify the accused Sanju, the same arguments stands over turned and from the fact that the complainant identified both the accused persons immediately after the incident they were arrested by the police on his identification and accused Sanju was also identified by the complainant in court. With respect to another contention of the counsel for the accused that both accused persons were framed more specifically Sanju was framed in this case by the police, the same argument is devoid of any merit as complainant duly identified him and no illwill or spite or previous enmity has been brought forward by way of evidence to substantiate the argument by the accused. Also weapon of offence was recovered from the possession of the accused persons immediately after the commission of the offence by the police as both accused persons are resident of the same area where the alleged offence has C/No. 227/2 Page No. 8 U.ID No. 02405R0768772009 State Vs. Nitin Kumar Sharma & Anr.
FIR No. 25/08PS Palam Village been committed. The opinion of the doctor also corroborate the testimony of the complainant and the version of the prosecution as the injury though simple in nature was a clean incised wound and as per PW6 the injury was caused by a sharp object. Also PW6 further stated in his cross examination that the injury of such nature is inflicted on the complainant by a sharp object. The result of forensic expert of CFSL with respect to two sealed parcel also corroborate the fact of injury to the complainant as blood was detected on Ex. 1 which was the shirt of the complainant. Further the report shows that blood could not be detected on Ex. 2 which was a rusty razor is of no use of the accused as it is quite possible that on rusty razor blood traces could not be detected in forensic examination. Even if blood of the victim could not be detected on rusty razor, the same fact do not throw away the prosecution case when the substantiative evidence which came from the mouth of the victim itself appears to be reliable and trustworthy. With respect to another argument of investigative lapses in the form of not seizing the vehicle which was a motorcycle driven by both accused persons was not so material which could tear the prosecution case apart completely. The testimony of the complainant is firm and as such it can be easily inferred from the testimony of the complainant that he received injury from the accused persons as he has resisted the attempt by the accused persons of snatching the keys of his car by them. All it can be said that prosecution has been able to prove the fact of injury on the person of the complainant by the accused person by a razor which gets duly corroborated from the evidence and forensic evidence apart from the evidence of complainant however, prosecution has not been able to prove conspiracy between the both accused persons.
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FIR No. 25/08PS Palam Village Conclusion
16. In the light of the aforesaid facts when nothing favourable could be brought by the counsel for the accused during the cross examination of the witnesses and prosecution has firmly established its case against the accused beyond the shadows of doubt and in view of the aforesaid, this court is of the considered view that the accused has committed the offence u/s 324/34 IPC and accused is accordingly convicted for the same. Accused is acquitted for the offence u/s 120 B IPC.
Copy of the order be given to the convict free of cost. Order on sentence will be pronounced after hearing the convict.
Announced in the Open Court (PANKAJ SHARMA)
today on 25 day of November, 2013 MM 01: Dwarka : Delhi
th
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U.ID No. 02405R0768772009