Delhi District Court
State vs Santosh Dass Etc on 5 September, 2011
IN THE COURT OF SHRI R.K.CHAUHAN: A S J/SPL JUDGE
(NDPS) (WEST) DELHI
FIR no. 237/02
Unique Case ID no.02401R0258992003
Police station : Uttam Nagar
U/s 323/308/34 IPC
State V/s Santosh Dass etc
1. Session Case no. : SC no. 38/10
2. Name of the accused : 1. Santosh Dass S/o Triveni
and parentage Dass R/o L2B/93, Mohan
Garden, Uttam Nagar,
Delhi.
2. Anuj Mishra S/o Munna
Lal Mishra R/o K3/12,
Mohan Garden, Uttam
Nagar, Delhi.
3. Date of commission of : 27/04/2002
offence
4. Arguments concluded : 30/08/2011
on
5. Date of Judgment : 05/09/2011
6. Date of final order : 19/09/2011
JUDGMENT
1) According to the prosecution case complainant Vinod Kumar who was working as salesman at the shoe shop in Karol FIR no. 237/02 (State Vs Santosh Dass ) page no...... 1 Bagh and was returning from his work at about 10pm on 28/4/2002 and when he was purchasing lemon on the way at L2 Block, Mohan Garden in the Shani Bazar, one Monu already known to him was standing near the rehri of Golgappa and started quarreling with him and Monu slapped him 45 times and in the meantime his cousin brother Rakesh came there and he alongwith Rakesh thrashed Monu and after thrashing, Monu went from there by saying that he would return after sometime. When complainant reached in front of his house the said Monu alongwith Santosh came there having sariyas in their hands and their accomplice Bittoo was having danda in his hand and another boy was also having sariya. Monu asked his three associates to beat the complainant by saying that they will not spare him today. He was given beatings with danda, sariya and legs blows and fist blows as a result he fell down on the ground; they then attacked Devi Prasad, uncle of the complainant who was sleeping outside the house on a takhat and Bittoo gave him sariya blow and Monu and Santosh and fourth boy gave sariya blow on the head of uncle of the complainant. Uncle of the complainant also sustained injuries and also fell down on the ground, in the meantime Rakesh tried to save him from the accused persons and all the four accused persons started giving beatings to Rakesh who raised alarm and on hearing FIR no. 237/02 (State Vs Santosh Dass ) page no...... 2 shouts and screams of Rakesh public persons gathered there. On seeing the crowd all the four accused persons ran away.
2) On the complaint of Vinod a case was registered u/s 308/323/34 IPC. During investigation accused Santosh and Anuj Mishra were arrested and chargesheet was filed on 05/05/2003. Accused Monu and the fourth unidentified person were not arrested because the complete information about their whereabouts and other particulars were not available.
3) Vide order dated 19/07/05, the then Ld ASJ has remanded the case to the Ld MM, Delhi with the directions to summon the accused Monu and Lucky and thereafter committed the case for trial.
4) On 19/12/07, SHO Police Station Uttam Nagar has filed his report u/s 169 CrPC against Lucky and Monu who were not arrested despite efforts made by the SHO as they could not be traced.
5) Finally, on 04/06/2010, Ld MM again committed the case to the court of Sessions without arrest of Lucky and Monu who could not be traced.
6) On 12/07/2010, after hearing Ld counsel for the accused persons and Ld Addl. PP for the State, a charge u/s 308/323/34 IPC was framed against both the accused to which they pleaded not FIR no. 237/02 (State Vs Santosh Dass ) page no...... 3 guilty and claimed trial.
7) The prosecution in support of its case has examined in total 12 witnesses.
8) PW1 Vinod Kumar has stated that on the intervening night of 27/28.06.2002 he had an altercation with the accused Santosh Dass and thereafter at about 10/10:30 PM the accused Santosh Dass came at his residence alongwith 1015 boys among whom Anuj and Lucky and they were armed with Sariya and gave beatings to his father, Chacha, Chachi, his mother and all family members sustained injuries; he was also given beatings by the accused present in the Court. In the meantime persons from the neigbourhood gathered and thereafter all of them ran away. It is further deposed that his father informed the police which came and took him and his uncle Devi Dass in PCR to the hospital and Police went in the hospital and recorded his statement Ex. PW1/A. He further stated that Santosh was apprehended in his presence.
9) PW2 Devi Dass has deposed that Vinod his nephew and Santosh accused present in the court were quarrelling and he was sleeping on the Charpai in front of his house and he got up after hearing noise of the quarrel and saw that accused Santosh had called some boys by making some telephone call and 45 boys came there within 23 minutes and started giving beatings to him FIR no. 237/02 (State Vs Santosh Dass ) page no...... 4 and his wife who tried to save him from them by covering his body. He has specifically pointed out towards accused Anuj Mishra and stated that he had given injury to him with an iron rod and no other boys had given injuries to him and no one caused injury in his presence to Vinod and thereafter accused ran away from there after causing injury to them; his son Rakesh called the police which came and rushed him to hospital and his wife and son accompanied him in the police vehicle.
10) PW3 Ct. Raj Singh has joined the investigation on 28/4/02 alongwith SI A. K. Singh and accused persons were arrested in his presence vide arrest memo Ex. PW3/A and Ex.PW3/B and his personal search was conducted vide memo Ex.PW3/C and Ex. PW3/D.
11) PW4 HC Naseeb Singh has deposed that on 27/4/09 he was working as duty officer from 5pm to 1am and on that day the DD no. 23A and 24A was recorded by him on receiving an information. He has proved the true copy of DD no. 23A as Ex.PW4/A and DD no. 24A as Ex. PW4/B. He has brought the orders of DCP, Dated 25/7/05 regarding destruction of original Rojnamcha as Ex.PW4/C.
12) PW5 ASI Rajinder Singh is the duty officer who has recorded the FIR on the basis of rukka and made his endorsement FIR no. 237/02 (State Vs Santosh Dass ) page no...... 5 Ex.PW5/B. He has also proved the carbon copy of FIR Ex.PW5/A and true copy of DD no. 27A recorded by him in the Rojnamcha Ex.PW5/C.
13) PW6 Dr. Maninder Kaur has proved the MLC Ex. PW6/A of Vinod prepared by Dr. Sanjay on 28/04/2002.
14) PW7 Dr. Nishu Dhawan has deposed that on 28/4/02 at about 12.30 Devi Dass 45 years male brought to the hospital with alleged history of assault and Dr. Ashutosh Gupta has prepared the MLC and given the primary treatment to the patient and advised X ray right arm, Xray elbow left and referred the patient to Ortho department for further management vide MLC Ex. PW7/A and the patient was examined by the Dr. Mukesh Gupta in Ortho department and gave the opinion regarding injury as grievous in nature. Dr. Ashutosh Gupta has also prepared the MLC of Vinod Ex. PW7/B.
15) PW8 SI Zile Singh (retired) has deposed that on 19/03/2003 the investigation of the present case was handed over to him by the MHC/R and he tried to search coaccused Monu but he was not traced and he prepared the challan and filed the same.
16) PW9 Dr. Rakesh Kumar has proved the reports Ex.PW9/A and Ex. PW9/B of patient Devi Dass and Vinod prepared by Dr. Seema Batra.
FIR no. 237/02 (State Vs Santosh Dass ) page no...... 6
17) PW10 HC Shamsher has deposed that on 28/4/2002 he was posted in West Zone, in Power59, PCR as Incharge from 8pm to 8am and on receiving an information reached at A20 Shakti Vihar Mohan Garden and AL2 block S4 Mohan Garden from where injured Vinod and Deviram were taken and got admitted in the DDU hospital in the PCR.
18) PW11 Rakesh is one of the public witness who did not support the prosecution case and was crossexamined by the Ld Addl. PP for the State but nothing was elicited in his cross examination so as to link the accused persons with the offence as alleged.
19) PW12 Inspector A. K. Singh is the Investigating Officer of the case who has deposed that he recorded the statement of Vinod Kumar Ex. PW1/A and endorsed the same as rukka Ex.PW12/A and on the basis which case FIR was registered. He further deposed that both the accused were arrested on the identification of complainant and a secret informer. In addition he has deposed that he has prepared the site plan Ex. PW12/B and on 11/07/200 he was transferred and further investigation was carried out by SI Deepak Malik and thereafter to SI Zile Singh.
20) Statement of both accused was recorded u/s 313 CrPC in which they have denied the allegations stating that they have been FIR no. 237/02 (State Vs Santosh Dass ) page no...... 7 falsely implicated in this case and they did not desire to lead evidence in defence.
21) I have heard Ld counsel for the accused persons who argued that prosecution has failed to prove its case beyond reasonable doubt because PW2 Devi Dass has not fully supported the prosecution case as he has stated that he has identified the accused Anuj Misha because his name was told to him by his nephew Vinod. Ld counsel further argued that in his cross examination by Ld Addl. PP for the State, PW2 Devi Dass stated that he had not told to the police that his son Rakesh came there and tried to save him and that Vinod and Rakesh had sustained injuries at the hands of assailants.
22) Regarding deposition of PW1 Vinod Kumar, it is argued that he is an interested witness and has got the accused persons falsely implicated. It was further argued that none of the witness has stated that they were given beatings with intention to cause such bodily injuries which might amount to culpable homicide amounting to murder and as such ingredients for the offence u/s 308 IPC are not proved. Regarding the injuries it is argued that the doctor who has examined the patients has not been examined and the other doctor has simply identified his signatures and as such grievous injuries are not proved. It was also argued that there are FIR no. 237/02 (State Vs Santosh Dass ) page no...... 8 various contradictions in the deposition of the witnesses and case of the prosecution has not been proved beyond reasonable doubt and accused persons are entitled to be acquitted.
23) Ld Addl. PP for the State on the other hand submitted that PW1 Vinod Kumar and PW2 Devi Dass has narrated the incident of beatings given by the accused persons and has correctly identified them as assailants. Ld Addl. PP for the State further submitted that the beatings were given by way of sariya on the vital part and MLC has been duly proved by the competent doctor who has identified the writing of the doctor who has prepared the MLC. Ld Addl. PP for the State further argued that the contradictions are not material and minor in nature and has not adversely affected the prosecution case. Ld Addl. PP for the State therefore stated that prosecution has prove its case and accused persons are liable to be convicted u/s 308 IPC.
24) I have considered the rival submissions and perused the case file carefully. The present FIR was registered on the statement of PW1 and he has fully supported the prosecution case stating that both the accused persons alongwith other unidentified persons were carrying sariyas and dandas and gave beatings to him as well as his uncle Devi Dass. He has further deposed that accused Santosh was apprehended by the police in his presence and there is nothing in FIR no. 237/02 (State Vs Santosh Dass ) page no...... 9 his crossexamination so as to assail his deposition regarding giving beatings to him and his uncle Devi Dass. PW2 Devi Dass in his deposition categorically stated that accused Anuj present in the court had given injuries to him with an iron rod. He has further deposed that when he was sleeping he heard a noise of quarrel at a distance of 20 meters from his charpai and got up after hearing the noise and saw accused Santosh had called some boys and 45 boys came there within 23 minutes and those 45 boys immediately started giving beatings to him and his wife and his wife saved him from them by covering his body. He further in a court question very honestly clarified that he could not identify any of the assailants at the time of incident as there was dark due to absence of electricity at that time, however Vinod his nephew had told him about the name of accused Anuj Mishra and accused Anuj Mishra had also approached him 45 times after he was released on bail.
25) The deposition of these two witnesses is corroborated by PW12 Inspector A. K. Singh who has stated that on 27/4/2002 he was on emergency duty and DD no. 23A Ex. PW4/A was received by him; he alongwith Ct. Ashok went to A20 Shanti Vihar, Uttam Nagar and on reaching there he found that a quarrel had taken place and injured were already taken to the hospital by PCR; he alongwith Ct. Ashok went to hospital and one Vinod Kumar and FIR no. 237/02 (State Vs Santosh Dass ) page no...... 10 Devi Dass were found under treatment; he obtained the MLCs of both these persons and recorded the statement of Vinod Kumar Ex.PW1/A and endorsed the same as rukka Ex. PW12/A and then got the case registered. He further deposed that on 29/4/2002 he reached at the house of the complainant and prepared the site plan Ex. PW12/B at his instance. He further deposed that on 01/5/2002 he left the Police Station alongwith Ct. Raj Singh and accused Santosh Dass was arrested from his house at L2 Block, Uttam Nagar vide memo Ex.PW3/A. He further deposed that he again recorded the statement of Vinod regarding identification and arrest of the accused persons. In the crossexamination he has clarified that no sariya/danda were recovered in this case.
26) Thus the presence of the accused persons at the time of alleged incident and giving beatings to the complainant Vinod has been established beyond reasonable doubt from the deposition of PW1 Vinod and PW2 Devi Dass which is duly corroborated by the Investigating Officer.
27) Regarding the proving of the injuries on the person of the complainant and his uncle, I have examined the MLC of Vinod Ex.PW7/B which shows the injuries to be simple blunt and MLC of Devi Dass proved as Ex. PW7/A shows the injuries has been opined as grievous by Dr. Mukesh Gupta.
FIR no. 237/02 (State Vs Santosh Dass ) page no...... 11
28) In order to prove the MLC of injured Vinod PW6 Dr.Maninder Kaur Chhabra was examined who has deposed that on 28/4/2002 Vinod was examined by Dr. Sanjay who was working as Senior Resident and signatures of Dr. Sanjay were identified on MLC Ex. PW6/A at pointX and Y. He further deposed that Doctor has left the services of the hospital and present whereabouts were not known. In her crossexamination, it is stated that she had been working with Dr. Sanjay and has identified his signatures at point X and Y. The MLC of Vinod shows that he sustained only simple hurt. In the deposition of PW1 Vinod he has categorically deposed that he was given beatings by both the accused persons present in the court. This deposition of PW1 Vinod is supported by his MLC Ex.PW6/A and it has been established beyond reasonable doubt that he has sustained simple injuries at the hands of accused persons. Regarding injuries of PW2 Devi Dass his MLC Ex. PW7/A has been proved by PW7 Dr. Nishu Dhawan who deposed that on 28/04/2002 at about 12.30pm Devi Dass was brought to the hospital with the alleged history of assault and Dr. Ashutosh Gupta has prepared the MLC and referred the patient to Ortho department; the patient was examined by Dr. Mukesh Gupta and had opined the injuries to be grievous after seeing the MLC and Xray report. No crossexamination of this doctor was carried out on behalf of FIR no. 237/02 (State Vs Santosh Dass ) page no...... 12 accused persons. PW7 Dr. Nishu Dhawan has clearly deposed that he can identify the handwriting and signatures of Dr. Mukesh Gupta as he had seen him writing and signing and he has left the services of the hospital and his present whereabouts were not known. The factum of sustaining the grievous injuries by PW2 Devi Dass has been established beyond reasonable doubt. However, I do find force in the arguments of Ld defence counsel that nothing was deposed by the witnesses to show that the alleged injuries to the injured persons were caused by the accused persons with an intention and knowledge that the said injury was likely to cause his death. Thus the ingredients of the offence u/s 308 IPC i.e attempt to commit culpable homicide has not been established beyond reasonable doubt.
29) From the above discussions, I am of the considered opinion that prosecution has established that accused persons have caused grievous injuries to Devi Dass and simple hurt to Vinod. I therefore hold them guilty and convict u/s 325/323/34 IPC. ANNOUNCED IN THE OPEN COURT ON 5th September, 2011 (RAJ KUM AR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) (WEST)DELHI FIR no. 237/02 (State Vs Santosh Dass ) page no...... 13