Delhi District Court
State vs . on 24 August, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CNR No. DLET01-006721-2020
SC No. 320/2020
FIR No. 167/2015
PS Kalyan puri
Under Section 308 of the IPC
IN THE MATTER OF :-
State
Vs.
Sanjay
S/o Sh. Man Singh
R/o H.No. 6/374, Kalyan Puri, Delhi
..... Accused
Date of institution : 25.11.2020
Final arguments : 24.08.2022
Date of order : 24.08.2022
JUDGMENT
1. Accused Sanjay is facing trial in this Court for the offence under section 308 of the IPC.
2. The case of the prosecution as per the police report under section 173(2) of the Cr.P.C. and evidence led on record is that DD no. 49-A dated SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 1 of 12 21.02.2015 was recorded in police station Kalyan Puri regarding information having been received from LBS Hospital that the victim Vinod Kumar had been brought to the hospital with injuries sustained in an altercation. The same was assigned for enquiry to SI Sandeep Kumar who reached LBS Hospital and collected the MLC report of victim Vinod Kumar. He recorded the statement of Vinod Kumar in which the victim Vinod Kumar disclosed that on 21.02.2015 at about 8:45 PM he was present at 6-Block, Trilok Puri Chowk. He saw accused Sanjay, who used to run a Chowmein cart, was serving liquor to some persons. Vinod Kumar protested against the sale of liquor to accused Sanjay after which the customers of accused Sanjay left. Accused Sanjay got enraged and took out an iron rod/saria from his cart and attacked Vinod Kumar on his head causing him injuries due to which he fell down and started bleeding. Crowd gathered at the spot and accused Sanjay fled. Complainant Vinod Kumar was taken to LBS hospital by his son Sagar.
3. On the said statement of the complainant Vinod Kumar, SI Sandeep prepared a rukka and handed it over to Ct. Idrish for registration of the present FIR. The complainant, his son Sagar and SI Sandeep reached the place of incident. The same was inspected and at their instance site plan was prepared. In the meanwhile Ct. Idrish got the FIR registered from the Duty Officer of PS Kalyan Puri and came to the place of incident and handed over the rukka and copy of FIR to SI Sandeep. SI Sandeep tried to apprehend the accused Sanjay at his house in Trilok Puri but he could not be found. Later on, at about 12:50 AM on 22.02.2015, accused Sanjay was apprehended from his home and was arrested. The iron rod/ Saria used by accused Sanjay in the incident was seized by the IO at his instance. After completion of investigation, charge-sheet was filed.
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4. By order dated 21.02.2021, charge for the offence under section 308 of the IPC was framed against the accused Sanjay to which he pleaded not guilty and claimed trial.
5. In order to prove the charge against the accused Sanjay, the prosecution examined Vinod Kumar, the complainant, as PW-1, his son Sagar as PW-2 and SI Sandeep as PW-3 after which prosecution was closed on 30.04.2022. It may be noted that during the pendency of the trial, certain documents on the record were put for admission and denial to the accused Sanjay under section 294 of the Cr.P.C. Accused Sanjay on 05.10.2021 in the presence of his counsel admitted the following documents on record:-
(i) The FIR - which was marked as Ex.PX1
(ii) DD no. 49-A - which was marked as Ex.PX2
(iii) MLC no. 002436 of Vinod Kumar - which was marked as Ex.PX3
6. Upon admission of the above documents by the accused Sanjay, the witnesses in respect of the said documents mentioned at serial no. 3, 5, and 6 in the list of witnesses of the charge sheet were dropped.
7. Statement of the accused Sanjay under section 313 of the Cr.P.C. was recorded on 23.05.2022 in which he denied incriminating evidence put to him. The accused Sanjay did not wish to lead evidence in his defence.
8. Arguments were addressed on behalf of the accused Sanjay by Sh. Sona Ram Gupta, Ld. Counsel and Sh. IUH Siddique, Ld. Addl. PP for the State.
9. Before proceeding to consider the arguments addressed, I shall consider the material evidence which has on record with the this case.
SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 3 of 12 EVIDENCE OF EYE-WITNESS / COMPLAINANT
10. The complainant Vinod Kumar was examined as PW-1. In his examination in chief, he deposed that on 21.02.2015 at about 8:45 PM when he was coming back from his duty/work, he reached at Chowk, 6-Block, Trilok Puri and saw that the accused Sanjay who used to sell Chowmein on his cart / rehri was present. He deposed that his children used to purchase Chowmein from the accused Sanjay. He deposed that that day he saw Sanjay serving liquor to 10-11 persons and he told the accused Sanjay to stop doing so but accused Sanjay threatened him and told him that he was trying send his customers away. Some customers went away but one or two remained and accused Sanjay again threatened him. Accused Sanjay told a few persons to catch hold of him after which some persons caught the complainant. Accused Sanjay took out an iron rod/ saria from his rehri/ cart and hit him on his head two times causing him injuries. He started bleeding and fell on the ground. Public gathered at the spot after which the accused Sanjay and persons with him fled. His son Sagar came and took him to LBS Hospital where he was treated. PW-1 Vinod Kumar further deposed in his examination in chief that police recorded his statement Ex.PW1/A in the hospital on which he identified his signature at point A. He then led the police to the place of incident where they prepared the site plan Ex.PW1/B on which he signed at point A. He deposed that accused Sanjay at that time could not be found. The weapon of offence iron rod/ saria Ex.PW1/P1 was identified by the complainant in the Court.
11. In cross-examination on behalf or the accused Sanjay, PW-1 Vinod Kumar has deposed that there was no fixed time of his duty getting over. Generally it would get over at 6:30 PM. It had been six years since the date of incident and he deposed that he finished his duty that day at 6:45 PM. He did not notice any other SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 4 of 12 rehri/ cart near the cart of the accused Sanjay. There was a vegetable market opposite the place where the accused Sanjay was present with his rehri/cart. The market was open at that time. There was a Paan shop behind his rehri/ cart of the accused Sanjay. He admitted as correct that there was a juice stall near the rehri/ cart of the accused Sanjay. He admitted that there were persons in the vegetable market and in the street. He admitted that he had consumed liquor on the day of the incident but from some other place. He deposed that that he had consumed beer on the occasion of marriage anniversary of his acquaintance Bahadur who used to work in Connaught Place.
12. In cross-examination, PW-1 Vinod Kumar further deposed that he had told the accused Sanjay not to serve liquor and that he would call the police. At that time some persons ran away and he was assaulted by accused Sanjay. He admitted that usually police was present at 6-Block but that day he did notice any police. He did not remember after how long his son Sagar came to the spot. He was badly injured at that time. He could not remember what time he reached the hospital or for how much time he remained in the hospital. He deposed that he was discharged at night. Police recorded his statement in the hospital. He did not remember whether police recorded the statement of any other person. He was not very literate. Police had shown him his statement. He had not told the police that his children used to purchase Chowmein from the accused Sanjay. He did not disclose the number of persons to whom the accused Sanjay was serving liquor. He did not tell the police that some persons had run away or that some persons had held him. He admitted that he did not tell the police that he was assaulted twice by the accused Sanjay. He admitted that iron rod was not recorded in his presence. He could not remember the time he reached the place of incident with the IO from the hospital. At that time his son was present with him. He could not remember the SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 5 of 12 number of documents prepared by the police. No other persons were present at the place of incident when he was there with the police. He did not meet the police later on. The police subsequently came to his house and told him that he had to appear in the Court. Rest of his cross-examination is in the form of suggestions which he denied. He specifically denied the suggestion that he had sustained injuries as he himself fell on the road because he was drunk.
13. Sagar, son of the complainant was examined as PW-2. In his examination in chief he deposed that on 21.02.2015 at about 8:45 PM he was present at his home. His friend informed him that his father was lying on the road at the Chowk of 6-Block with injuries. He reached and found his father lying on the road bleeding from his head. He took his father to LBS Hospital in a TSR where he was treated. After about half an hour police reached and recorded the statement of his father and took his father to the place of incident. He also went with his father. Police prepared a map on which his father signed at the spot. Police asked about the address of the accused Sanjay and they took the police to the house of accused Sanjay but he was not found, after which they came at the place of incident and they went home.
14. In cross-examination on behalf of the accused Sanjay, PW-2 Sagar deposed that his friend Sunil had informed him about his father lying on the road. At that time some persons were present. Some shops were closed. There was an ATM and Travel Office near the place of incident where the accused Sanjay used to put his rehri/ cart. He did not know whether his father was drunk. They were in the hospital till 11-11:30 PM. No person was present at the spot when they came back. House of the accused Sanjay was at second gali from where he puts his rehri and it takes about five minutes to reach his home from the spot. No person was present in SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 6 of 12 the house of accused Sanjay. Rest of his cross-examination is in the form of suggestions which he denied.
MEDICAL EVIDENCE
15. Ex.P3 is the MLC of the victim Vinod Kumar of LBS Hospital. The same records the following injuries on the person of Vinod Kumar:-
(i) CLW of about 4 cm x 0.5 cm over frontal region of scalp left side
(ii) CLW of about 3 cm 0.5 over left side of parietal region of scalp
(iii) Swelling over left parietal region of scalp
16. The MLC Ex.P3 is not disputed as it was admitted under the section 294 of the Cr.P.C. by the accused Sanjay. MLC records the nature of injuries to be simple.
RECOVERY OF WEAPON OF OFFENCE
17. PW-3 SI Sandeep Kumar has deposed that at about 12:50 AM of 22.02.2015 he along with Ct. Idrish had gone to the home of accused Sanjay at 6- Block, Trilok Puri where accused Sanjay was found present. He was interrogated and arrested. The iron rod/ Saria Ex.PW1/P1 was recovered at the instance of the accused Sanjay from his home below a coat which accused Sanjay disclosed that he had used in the incident. The iron rod/ Saria was kept in a pullanda, sealed and seized vide Ex.PW3/D. Seal after use was handed over to Ct. Idrish. In cross- examination regarding the recovery of weapon of offence, PW-3 SI Sandeep Kumar has deposed that house of the accused Sanjay was at a distance of 200 meters from the place of incident. No one was present when he had gone to the house of the accused for the first time. House of the accused Sanjay consists of ground floor, first floor and second floor. He could not state direction of the house.
SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 7 of 12 He has gone for the second time to the house of the accused with Ct. Idrish after one hour. He deposed that accused Sanjay met them on the second floor of his house. No other person was present on the second floor. He i.e. PW-3 was carrying sealing material in his IO bag. Ct. Idrish had returned his seal on the next day but no memo in this regard was prepared. He tried to look for other witnesses but no person was found.
ARGUMENTS ON BEHALF OF LD. COUNSEL FOR THE ACCUSED AND SH. IUH SIDDIQUE, LD. ADDL. PP FOR THE STATE.
18. Sh. Sona Ram Gupta, Ld. Counsel for the accused Sanjay has submitted that as per the MLC of the complainant Vinod Kumar, there was smell of alcohol in his breath and that the BAC Test revealed presence of 123 MGL which shows that the complainant Vinod Kumar was drunk at the time of the incident. He submitted that Vinod Kumar in his cross-examination has admitted that before coming to the place of incident, he had consumed liquor. He submitted that as per the MLC of Vinod Kumar, injuries suffered by him were simple. The injury recorded on the MLC does not reveal any grievous injury and thus the offence 308 of the IPC is not made out. He further submitted that Ex.PW1/P1 i.e. iron rod/ saria could not have been the weapon of offence. He submitted that the same is about 2 ½ feet long and its weight is about 2 kg. He submitted that if such a rod was used in the incident, it could not have caused a simple injury. He submitted that the said rod has been planted by the IO and for this reason it was not even sent to FSL for forensic examination to detect presence of any blood on the same. He submitted that the victim Vinod Kumar was discharged from the hospital after a few hours and was not hospitalized. He stated that no public witness was associated with the recovery of saria.
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19. Sh. IUH Siddique, Ld. Addl. PP for the State has submitted that the complainant Vinod Kumar has deposed consistently as per his statement Ex.PW1/A. He identified the accused Sanjay in the Court. There is no material contradiction in his evidence which would cast any doubt regarding the case of the prosecution. He submitted that the IO has proved recovery of the weapon of offence and that the medical evidence on record i.e. MLC of Vinod Kumar corroborates the case of the prosecution.
20. I have heard the submissions on behalf of the accused and Ld. Addl. PP for the State and gone through the record.
21. I have referred to the contents of the statement Ex.PW1/A of the complainant Vinod Kumar on the basis of which the FIR of this case came to be registered. In the statement Ex.PW1/A, the complainant Vinod Kumar had stated that when he was on the way to his home and reached the chowk of 6-Block, Trilok Puri, he saw the accused Sanjay selling liquor to his customers and when he protested, accused Sanjay assaulted him i.e. the complainant Vinod Kumar with an iron rod/ saria twice on his head. In his evidence tendered in the Court, PW-1 Vinod Kumar has deposed consistent to his statement Ex.PW1/A. He deposed that when he asked Sanjay not to sell liquor, customers of Sanjay went away after which Sanjay took out an iron rod and assaulted him twice on his head. PW-1 Vinod Kumar identified accused Sanjay in the Court and the weapon of offence. Even in cross-examination, PW-1 Vinod Kumar is consistent. No material contradiction exists in his deposition in cross-examination.
22. The version of PW-1 Vinod Kumar that he was assaulted twice on his head stands corroborated by the content of his MLC Ex.PX3. The MLC records two clean lacerated wounds on the left side of the head of the victim Vinod Kumar SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 9 of 12 and swelling over left side of scalp. The MLC thus supports the ocular version of PW-1 Vinod Kumar that he suffered two blows on his head at the hands of the accused Sanjay.
23. It had been submitted by Sh. Sona Ram Gupta, Ld. Counsel that the weapon of offence i.e. iron rod/ saria Ex.PW1/P1 was planted as no public person was associated with its recovery and also that it was of such dimension and weight that it could not have caused a simple injury. As far as recovery of the weapon of offence is concerned, PW-3 / SI Sandeep Kumar has deposed that he apprehended the accused Sanjay at his home at about 12:50 AM of 22.02.2015. At such a late hour, it is possible that no public person could be associated with its recovery. The accused Sanjay on the other hand has not brought any material on record to suggest that the said recovery was planted. On the other hand, PW-3 SI Sandeep Kumar is consistent in his evidence regarding this aspect. No doubt therefore could be cast on the recovery of the weapon of offence from the house of the accused Sanjay.
24. With respect to the submission that the iron rod/ saria Ex.PW1/P1 could not have been the weapon of offence, this Court by order dated 02.08.2022 had directed the MHC(M) to produce the said case property. It was produced before this Court on 06.08.2022 and inspected by the Court in the presence of the Ld. Counsel for the accused Sanjay. The iron rod/ saria appeared to be measuring about 2.5 feet in length and weighing about 2 kg. The MLC Ex.PX3 of the complainant Vinod Kumar records the nature of injuries to be simple in nature. Merely because the nature of injury is simple in nature cannot persuade this Court to come to an opinion that such injury could not have been caused by the iron rod/ saria Ex.PW/P1. The nature of injury vis-a-vis the weapon used will however have SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 10 of 12 a bearing on the question as to whether the offence under section 308 of the IPC is made out or not.
25. The offence under section 308 of the IPC is attracted when the person accused does any act with such intention or knowledge and under such circumstances that if he had caused death, he would be guilty of culpable homicide not amounting to murder. In the case of Prabhu Dayal Sharma Vs The State of NCT of Delhi CRL A 680/2012 decided on 30.05.2014, the Hon'ble High Court of Delhi was pleased to hold that to bring the alleged act within the meaning of section 308 of the IPC, injuries should be caused with the object and knowledge to cause death of the victims. In the said case the victim had sustained three fractures on his right femur, right tibia and metacarpal bone. The Hon'ble High Court held that though the injuries were grievous, they were not sufficient in the ordinary course of nature to cause death and thus the offence under section 308 of the IPC was not made out. In the case of Raju @ Rajpal & Ors Vs The State of Delhi CRL A 208/2011 decided on 17.07.2014, the Hon'ble High Court of Delhi was pleased to set aside conviction for the offence under section 308 of the IPC and altered it to the offence under section 323 of the IPC after finding that there were no multiple repeated wounds on the body of the victim and nature of injury was opined to be simple. Allegation in the said case was also that the accused had assaulted the victim on her head with a saria.
26. In the present case the injuries suffered by Vinod Kumar are simple in nature which leads to an inference that the force used by the accused Sanjay to inflict the injuries on the person of the victim Vinod Kumar was not such which would bring his act within the contours of the offence under section 308 of the IPC. However, the weapon used by the accused Sanjay will certainly attract the offence SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 11 of 12 committed by him under section 324 of the IPC which is of voluntarily causing hurt by a dangerous weapon or means.
27. Hence, for the reasons recorded above, accused Sanjay is acquitted for the charge framed under section 308 of the IPC. Accused Sanjay is however, Digitally signed by convicted for the offence under section 324 of the IPC. REETESH REETESH SINGH Location: SINGH Karkardooma Court Date: 2022.08.24 16:15:22 +0530 (Reetesh Singh) ASJ-2/KKD/East/24.08.2022 Announced in open court on 24.08.2022 SC No. 320/2020 FIR No. 167/2015 PS Kalyan puri State Vs Sanjay Page No. 12 of 12