Delhi District Court
State vs . Kamal Deep Etc. on 18 February, 2011
IN THE COURT OF MANOJ JAIN
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
ROHINI COURTS: DELHI
Sessions Case No. 186/2010
Unique ID No. 02404R0212382010
FIR No.139/10
PS Shahbad Dairy
U/s 308/323/354/506/34 IPC
State Vs. Kamal Deep etc.
ORDER
1 complainant Sukh Lal Man filed a complaint which was made over to the Court of Sh. S.S. Malhotra, the then learned Metropolitan Magistrate. Status report was called and keeping in mind the status report and the averments made in the complaint, learned MM directed registration of FIR against all the accused persons under Section 323/308/354/506/34 IPC. FIR was accordingly registered. Challan was also filed against all the four accused persons under aforesaid Sections. Cognizance was taken by the learned Magisterial Court and the proceedings of complaint case were ordered to be stayed in terms of Section 210 Cr.P.C. and file pertaining to complaint was ordered to be attached with the challan.
2 Since offence under Section 308 IPC was triable exclusively by the Court of Sessions, Case was accordingly committed to Court of Sessions.
3 It was received on allocation by this Court on 21.12.2010.
4 Arguments on charge have been heard.
FIR No.139/09 PS Shahbad Dairy Page 1 of 55 At this stage, primarily it is to be seen whether offence under Section 308 IPC is made out or not.
6 I have carefully seen the allegations appearing in complaint of Sukh Lal Man.
7 There are three alleged incidents.
8 Firstly, on 26.04.2009 accused no. 1 Kamal Deep made a threatening call to complainant.
9 Secondly, next day i.e. on 27.04.2009 accused no. 1 Kamal Deep entered the house of complainant forcibly. He was armed with sharp edged weapon and extended threats to complainant and his wife and gave fists blows to the complainant and also snatched Rs. 500/- from the pocket of complainant. When Bhagwan Devi (wife of complainant) tried to save her husband, accused no. 1 Kamal Deep gave two- three cuts on the tummy (abdominal region) of complainant due to which his kutra got torn.
10 Third incident is dated 28.04.2009. According to complainant at about 11.30 AM, he along with Bhagwan Devi and his elder son Vijay were working at their plot and all the accused persons came there and started digging drain. Vijay Singh, however, tried to stop them and confronted them with the order of the Civil Court and asked them not to interfere with their peaceful possession of their property but accused persons did not relent and then they picked up lathi, danda and chali from there only and danda blows were given on the FIR No.139/09 PS Shahbad Dairy Page 2 of 5 head of Vijay and even his wife Shiv Kumari was not spared.
11 It would be worthwhile to mention here that earlier both the parties were booked under Section 107/151 Cr.P.C. as well.
12 Learned Addl. P.P. has contended that though complainant party was lucky to escape with simple injuries yet as per the allegations appearing on record, it becomes very much apparent that all the accused persons had intention to eliminate complainant party and danda blow was given on the head of Vijay with specific intention. She has also argued that accused persons cannot deny that they had, at least, the knowledge that their such act of giving danda blow on vital part of the body could have proved fatal.
13 Learned defence counsel has, on the other hand, contended that entire story has been cooked up and criminal angle has been deliberately given to a civil dispute.
14 I have seen the allegations very carefully. As far as incident dated 26.04.2009 is concerned, it is only confined to threatening telephonic call. As regard second incident 27.04.2009, as per complainant, accused no. 1 Kamal Deep was armed with sharp edged weapon and gave three blows with sharp edged weapon on his abdominal region. MLC dated 27.04.2009 is on record. Surprisingly, it merely reveals pain, swelling, abrasions below right knee and no other injury of any nature is found mentioned. Thus, as far as incident dated 27.04.2009 is concerned, there is nothing to show that FIR No.139/09 PS Shahbad Dairy Page 3 of 5 there was any attempt to eliminate complainant or his wife.
15 Regarding third incident, it was Vijay who allegedly got injuries on his head. I have seen his MLC. His such MLC depicts lacerated wound on left parietal region and bruises on his left forearm. Time of examination is 12.30 noon. It is important because as per statement of Vijay and his wife Shiv Kumari, incident had taken place at 3.30 PM on 28.04.2009. Would prosecution explain, if at all the incident had taken place at 3.30 PM, as to how they got themselves examined at hospital at 12.30 PM? Learned Addl. P.P. has, however, stated that there might be some clerical error while recording statements of witnesses under Section 161 Cr.P.C. Even if such fact is assumed, it becomes apparent that accused persons had not come armed or with any pre-planning. Even as per complainant Sukh Lal, accused persons had picked up danda, lathi and chali lying at the spot i.e. at the house of complainant party. Such fact has been specifically mentioned in para 7 of the complaint. It clearly reveals that attack was not premeditated. In the case of NIRANJAN KUMAR VS. STATE 2008 JCC 838, accused had allegedly picked up a stone from the spot and started hitting the complainant on his head and face with a threat to kill. Doctor also opined injury suffered by the complainant to be a simple one. Accused was, however, booked for offence under Section 308 IPC and it was held by learned Addl. Sessions Judge that there was nothing on record to make out a case under Section 308 IPC and case was only of a simple hurt. Such order was upheld by Hon'ble High Court of Delhi.
FIR No.139/09 PS Shahbad Dairy Page 4 of 516 In the present case also, lathis, danda and chali were allegedly picked up from the spot. Injured person had received simple injuries and there is no material to show or indicate that the accused persons had any intention or knowledge to cause death so as to attract offence under Section 308 IPC.
17 Keeping in mind the facts appearing on record, I am of the opinion that there is not grave suspicion to make out any case under Section 308 IPC against any of the accused.
18 In view of my aforesaid discussion, no offence exclusively triable by the Court of Sessions is revealed. Case is accordingly remanded back. Accused persons are directed to appear before learned Addl. Chief Metropolitan Magistrate on 22.02.2011 at 2.00 p.m. Learned Addl. Chief Metropolitan Magistrate, (Outer District) Rohini Courts, Delhi would either try the case himself or assign the same to any other Court of competent jurisdiction. Concerned learned Magisterial Court would see as to what other offences are made out against accused persons and would proceed with the matter in accordance with law.
Announced in the open Court on this 18th day of February, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi FIR No.139/09 PS Shahbad Dairy Page 5 of 5