Delhi District Court
State vs . Rakesh @ Chawanni & Ors. on 23 June, 2012
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Rakesh @ Chawanni & Ors.
FIR No. 140/02
U/s. 326/34 IPC.
PS Mukharjee Nagar, Delhi.
JUDGMENT
a) The sl. no. of the case : 298/2.
b) The Unique ID No. of the case : 02401R0792532003.
c) The date of commission of the : 24/03/2002.
offence
d) The date of institution of case : 26/07/2002.
e) The name of the complainant : Sh. Ram Dass.
f) The name & address of accused : 1. Rakesh @ Chawanni S/o Sh. Ramesh, R/o J.J. Colony, Uttam Nagar, Delhi.
Permanent R/o Village Badkhera Sonak, Distt. Muradabd, U.P.
2. Bhudev S/o Sh. Genda Singh, R/o 22/3, Indira Vikas Colony, Delhi.
g) The offence complained of : U/s. 326/34 IPC. h) The plea of the accused : pleaded not guilty. i) The date of reserving the order : 23/05/2012. j) The final order : Convicted. k) The date of such order : 07/06/2012. FIR No. 140/02 PS Mukharjee Nagar 1 THE BRIEF REASONS FOR THE JUDGMENT :
1. The prosecution case, in brief, is that on 23/03/2002 at about 11:30 pm, at Jhuggi, Indira Vikas Colony, opposite Nirankari Colony, within the jurisdiction of PS Mukharjee Nagar, accused Rakesh @ Chawanni and accused Bhudev alongwith coaccused Lallu (since expired) voluntarily caused grievous hurt with a sharp edged weapon upon the person of complainant Sh. Ram Dass S/o Sh. Chiranji Lal. The complaint was made to the police. After investigation, the challan was filed by the police.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charge was framed against the accused persons for trial of offence U/s. 326/34 IPC by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined PW.1 complainant/injured Ram Dass, who has proved his complaint Ex. PW1/A and the site plan vide Ex. PW1/B. PW.2 is Ct. Gulzar Chand, who had produced the record of DD No. 46B vide Ex. PW2/A. PW.3 is ASI Ganesh Narain, Duty Officer, who has proved the copy of FIR vide Ex. PW3/A and endorsement on rukka vide Ex. PW3/B. PW.4 is Dinesh, Medical Record Clerk, HR Hospital, who had identified the handwriting and signatures of Dr. Ajay Kumar and Dr. R.K. Singh on the MLC No. 1661/02 dated 24/03/2002 of injured Ram Dass and proved the same MLC vide Ex. PW4/A. PW.5 is Constable (now HC) FIR No. 140/02 PS Mukharjee Nagar 2 Satyavir Singh, who accompanied injured Ram Dass to HR Hospital and got the case registered on the instruction of IO. PW.6 is IO SI Virender Singh, who had investigated the case and proved rukka vide Ex. PW6/A, formally arrested accused Lallu and Bhudev vide memos Ex. PW6/B and Ex. PW6/C, conducted their personal search vide memo Ex. PW6/D and Ex. PW6/E respectively, arrest of accused Rakesh vide memo Ex. PW6/F, his personal search vide memo Ex. PW6/G, rearrest of accused Bhudev vide memo Ex. PW6/H, his personal search vide memo Ex. PW6/I, rearrest of accused Lallu vide Ex. PW6/J, his personal search vide memo Ex. PW6/K and after completion of investigation, prepared the challan.
4. Statement of the accused persons was recorded separately U/s. 313/281 CrPC, wherein they pleaded innocence and false implication in this case. They wished to lead defence evidence, however, they did not examine any witness in support of their defence.
5. I have heard arguments from Ld. APP for State, the accused persons and also gone through the evidence and documents on record carefully.
6. The prosecution has examined six witnesses in total. Regarding the incident, the prosecution has examined PW.1 complainant/injured Ram Dass. He has deposed that around one year back from his evidence, near Holi, he was sitting down stair in his house and all the accused persons namely Lallu (since expired), Rakesh and Bhudev were consuming liquor and were also FIR No. 140/02 PS Mukharjee Nagar 3 gambling. He deposed that when he tried to stop them from consuming liquor and from gambling, he was thrown down on the floor by the accused persons and accused Rakesh caused grievous injury to him by biting his nose with teeth as a result of which front portion of his nose was separated. He further deposed that accused Rakesh also injured his ear by his nails due to which his nose and ear started bleeding. He deposed that he raised alarm and the accused persons said to him that they would remove his nose and he was not in a position to rescue from them. He further deposed that he lodged complaint Ex. PW1/A at PS and showed the place of incident to the police upon which the police prepared the site plan Ex. PW1/B.
7. The police proceedings have been proved by PW.6 IO SI Virender Singh. He deposed that on 24/03/2002, on receipt of DD No. 46B, at about 12:10 am (night) he reached at HR Hospital, where he received MLC No. 1661/02 of injured Ram Dass. He deposed that he recorded the statement Ex. PW1/A of complainant Ram Dass and attested the same and after endorsement on the same, rukka Ex. PW6/A was prepared and the case was got registered through PW5 Ct. Satyavir. He further deposed that he alongwith the complainant reached at the spot of incident and prepared the site plan at his instance and the efforts were made to search the accused persons. He further deposed that on 11/04/2002 the above said MLC was deposited for result and on 30/04/2002 two accused persons Lallu (since expired) and Bhudev surrendered before the Hon'ble Court, who were formally arrested by him and their personal search was got conducted. He further deposed that on FIR No. 140/02 PS Mukharjee Nagar 4 23/05/2002 accused Rakesh also surrendered before the court and absconded from the court after addition of section 326 IPC, however, later on he was arrested on 27/05/2012 from Kingsway Camp Chowk and his personal search was got conducted. He further deposed that the result on MLC was obtained as grievous. He further stated that on 21/07/2002 accused Bhudev was re arrested and his personal search was got conducted.
The testimony of PW6 IO SI Virender has been corroborated by PW5 Constable (now HC) Satyavir Singh. PW5 deposed that on 23/03/2002 at about 12:00 midnight, complainant arrived at PS in injured condition. He deposed that DD No. 46B was entered and he was asked to get the injured medically examined and he accompanied the injured to HRH Hospital. He further deposed that PW6 IO SI Virender Singh arrived at HR Hospital and obtained the MLC of injured Ram Dass and recorded his statement. He further deposed that IO prepared the rukka and after getting the case registered he came back to the spot and handed over the original rukka and copy of FIR to the IO.
8. Regarding the injuries, the prosecution has examined PW.4 Dinesh, Medical Record Clerk, Hindu Rao Hospital, who has proved on record the MLC Ex. PW4/A prepared by Dr. Ajay Kumar and the opinion given on it by Dr. R.K. Singh regarding the nature of injuries. Further, in addition to the reports of above said doctors, in my opinion, Section 320 IPC is also necessary to be mentioned here, which defines the offence of grievous hurt : FIR No. 140/02 PS Mukharjee Nagar 5
320. Grievous hurt. The following kinds of hurt only are designated as "grievous": First. Emasculation.
Secondly. Permanent privation of the sight of either eye. Thirdly. Permanent privation of the hearing of either ear. Fourthly. Privation of any member or joint.
Fifthly. Destruction or permanent impairing of the powers of any member or joint.
Sixthly. Permanent disfiguration of the head or face. Seventhly. Fracture or dislocation of a bone or tooth. Eighthly. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Thus, from the six clause of Section 320 IPC, it is crystal clear that the permanent disfiguration of the head or face comes within the definition of grievous hurt. Although the opinion of Dr. R.K. Singh is not considered as he had not appeared in court to depose about the opinion given on the injuries sustained by PW.1 Ram Dass, but the factum and nature of injuries are a part of medical record, which has been produced by PW.4 Dinesh, Medical Record Clerk, Hindu Rao Hospital. The perusal of MLC shows that patient Ram Dass suffered swelling at nose with right ala and lower anterior part of nose missing with underlying bone exposed. The MLC of the victim/PW.1, makes it clear that the victim had sustained injury on his nose, which resulted in the disfiguration of his face, and the same is in itself grievous injury as FIR No. 140/02 PS Mukharjee Nagar 6 mentioned in sixth clause of Section 320 IPC. Thus, independently of the opinion of Dr. R.K. Singh, the medical record of PW.1 makes it clear on its own that he had sustained grievous injury, inflicted by the accused with his teeth, used as a weapon for cutting the nose.
10.The accused Rakesh @ Chawanni and Bhudev have stated in their statement recorded U/s. 313 CrPC that they are innocent and have been falsely implicated in the present case. Accused Bhudev stated that he had intervened between the quarrel of the complainant/injured with accused Rakesh @ Chawanni and he merely tried to mollify the dispute between them. Further, accused Rakesh @ Chawanni admitted that during quarrel with the complainant Ram Dass, he had bitten the nose of the complainant by mistake, however he had no intention to do so. The accused persons led no evidence to prove their defence. The exculpatory statement of the accused U/s. 313 CrPC is nothing more than ipse dixit of the accused persons, unsubstantiated by independent evidence and is contrary to the evidence on record.
11.The accused persons have not put forward any defence to prove that they have not committed the alleged offence. All the witnesses examined by the prosecution are supporting the case of prosecution. Their statement on record are found to be cogent, coherent and there is no reason to disbelieve the same.
12.Hence, in view of the above observation and discussion and the evidence on record, in my opinion, the prosecution has successfully proved its case FIR No. 140/02 PS Mukharjee Nagar 7 against accused Rakesh @ Chawanni and Bhudev beyond all shadows of reasonable doubt for the offence U/s. 326/34 IPC. Therefore, I hereby hold the accused persons guilty to the offence U/s. 326/34 IPC and convict them accordingly. Order on sentence shall be announced after hearing the accused.
ANNOUNCED IN THE OPEN (VISHAL SINGH) COURT ON 07/06/2012. Metropolitan Magistrate (Copies 1 + 1) Delhi FIR No. 140/02 PS Mukharjee Nagar 8 IN THE COURT OF SH. VISHAL SINGH : MM : DELHI State Vs. Rakesh @ Chawanni & Ors. FIR No. 140/02 U/s. 326/34 IPC. PS Mukharjee Nagar, Delhi. ORDER ON SENTENCE Present: Ld. APP (Subs.) for the State.
Accused/Convict Rakesh @ Chawanni and Bhudev on bail. Accused Lallu already expired.
Complainant/injured Ram Dass is also present.
Submissions on sentence heard. It is stated by the accused persons that they have settled the matter with complainant/injured Mr. Ram Dass. It is further stated that they have faced trial for a long period of 10 years which is itself a punishment for them. It is further stated by the accused persons that they are the only bread earners of their respective families.
On the other hand, it is stated by Ld. APP that the case is for the offence U/s. 326/34 IPC which is not compoundable by the person injured and the only fact that it is an old case does not entitle the convict persons for any lenient view. It is further stated by Ld. APP that convict persons deserve maximum punishment.
Considering the non compoundable and grave nature of offence committed by the accused/convict persons, the duration of trial cannot be a mitigating factor for the punishment. Moreover, offence U/s. 326 IPC is not FIR No. 140/02 PS Mukharjee Nagar 9 amenable to probation as the offence is punishable upto imprisonment of life or 10 years of imprisonment. In totality of circumstances, both the accused/convict persons are sentenced for a period of three years RI for the offence U/s. 326 IPC each and further to pay a fine of Rs. 5,000/ i.d. to undergo six months simple imprisonment. The benefit of section 428 Cr.P.C is given to the convict persons and any previous imprisonment suffered by them in this case shall be set off against the substantive period of imprisonment awarded to them. Fine not paid.
No application filed by the accused/convict persons U/s. 389 CrPC for suspension of sentence. Both the accused persons have not pleaded that they want to prefer appeal against judgment and conviction.
In these circumstances, the sentence of imprisonment commences forthwith. The accused persons be taken into judicial custody to serve the sentence. The sentence shall commence forthwith.
Copy of Judgment and sentence be provided to the convict persons free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN (VISHAL SINGH) COURT ON 23/06/2012 Metropolitan Magistrate (Copies 1 +1) Rohini Courts, Delhi FIR No. 140/02 PS Mukharjee Nagar 10