Delhi District Court
State vs 1 Ashok Kumar, on 27 January, 2010
IN THE COURT OF MANOJ JAIN: ADDL. SESSIONS JUDGE:
ROHINI COURTS:
DELHI
SC No.25/2008
FIR No.11/2008
PS Shalimar Bagh
U/s 323/308/34 IPC
State Versus 1 Ashok Kumar,
S/o Nand Lal,
H. No. 10, Gali No. 6,
Ambedkar Nagar,
Haider Pur, Delhi.
2 Ankush Saini @ Kamal,
S/o Ashok Kumar,
H. No. 10, Gali No. 6,
Ambedkar Nagar,
Haider Pur, Delhi.
3 Ajeet Saini @ Ajay Kumar
Saini s/o Bir Singh Saini,
R/o H. No. B31, New
Palam Vihar, Gurgoan,
Haryana.
Date of filing :20.08.2008
Date of conclusion of arguments :27.01.2010
Date of decision :27.01.2010
JUDGMENT
1 All the three accused persons have been sent up to face trial for commission of offences u/s 308/323/34 IPC. 2 As per prosecution story, Nand Lal had one daughter Jyoti who eloped with one Sonu. Nand Lal learnt that one FIR No.11/08 PS Shalimar Bagh 1 Nitish/Nishu (son of accused Ashok Kumar) was friend of Sonu and, therefore, on 06.01.2008, he went to his house to enquire about Sonu and his daughter Jyoti. Nand Lal called Nitish outside his house and started making enquiries about Sonu & Jyoti but Nitish, instead of giving any answer, called his father. Accused Ashok came with his son Kamal (second accused) and his soninlaw i.e. accused Ajeet Singh @ Ajay Saini (third accused). A scuffle ensued. On hearing noise of quarrel, Naveen and Rajesh, brothers of Nand Lal, reached there and tried to intervene. In the meanwhile, accused Kamal brought one danda from his house and danda blows were given to all three of them. One danda blow landed on the head of Naveen. All the injured were rushed to BJRM Hospital by PCR. Necessary investigation was carried out and it is in these circumstances that accused persons have been chargesheeted.
3 Case was received on committal by this Court on 20.08.2008 and all the accused persons were ordered to be charged u/s 308/323/34 IPC vide order dated 18.10.2008. 4 All the three persons were charged u/s 308/323/34 IPC. They pleaded not guilty and claimed trial. FIR No.11/08 PS Shalimar Bagh 2 5 Prosecution was directed to adduce evidence and has examined seven witnesses viz PW1 Nand Lal (complainant/injured), PW2 ASI Upender Singh (duty officer), PW3 Naveen Gupta (eyewitness/injured), PW4 Rajesh Gupta (eyewitness/injured), PW5 ASI Prem Singh (duty officer), PW6 Ct. Ramdhan and PW7 Dr. Shipra Rampal.
6 Accused, in their respective statements u/s 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated. Stand of defence is that Nand Lal himself was aggressor and wanted to take Nitish/Nishu away forcibly whereas Nitish was minor and studying in 9th class at the time of incident. It was also claimed from the side of accused that as far as accused Kamal was concerned, he was not present at the spot at all and his name was taken with some ulterior motive. 7 No evidence in defence was led.
8 I have heard learned Addl. P.P. and learned defence counsel and carefully perused the entire material on record. FIR No.11/08 PS Shalimar Bagh 3 9 Learned Addl. P.P. has contended that all the three material public witnesses have entered into witness box and they have supported the case of prosecution in toto and there is no reason to disbelieve them. She has argued that though injury in question was simple in nature yet fact remains that blow was given on the head with danda and accused persons were sharing common intention and they knew that such danda blow could prove to be fatal as well. She has thus contended that prosecution has been able to prove its case to the hilt. 10 Ms. Urmil Verma, learned defence counsel has, on the other hand, refuted all the aforesaid contentions. She has argued that daughter of Nand Lal had affairs with one Sonu and Nand Lal knew this fact from day one. Instead of reporting the matter to the police or making any enquiry from Sonu, Nand Lal started troubling accused persons. She has contended that Sonu used to give computer coaching to Nitish/Nishu and Nand Lal probably felt that Nitish might be knowing as to where Sonu and Jyoti were and for such purpose, Nand Lal even called Nitish at his house earlier also and was illegally detained and even threatened. She has argued that even on the date of incident, Nand Lal had himself come to the house of accused and wanted FIR No.11/08 PS Shalimar Bagh 4 to take away Nitish to his house forcibly. She has claimed that accused Ashok Kumar, being father of Nitish, resisted such illegal act of Nand Lal and tried to stop him which resulted in scuffle and quarrel. She has argued that there was never any intention to kill anyone and the incident had taken place in spur of the moment. She has also argued that brothers of complainant Nand Lal were armed with danda and cricket bat and they wanted to beat all the accused persons but one Sunny intervened. She has contended that Rajesh Gupta, who was armed with the cricket bat and who wanted to hit accused Ashok Kumar with the same, got a jerk due to intervention of Sunny and, therefore, blow landed on the head of Naveen Gupta. She has argued that all the accused persons are innocent and moreover, accused Kamal @ Ankush was not even present at the spot at the time of incident. 11 I have given my thoughtful consideration to the rival contentions.
12 I have seen the testimony of all the three spot witnesses i.e. PW1 Nand Lal, PW3 Naveen Gupta and PW4 Rajesh Gupta.
FIR No.11/08 PS Shalimar Bagh 5 13 Head injury was received by Naveen Gupta and accused are facing trial for offence u/s 308/34 IPC qua such injury received by Naveen Gupta and accused persons are also facing trial for causing simple injuries on the person of Nand Lal and Rajesh Gupta.
14 I have seen the testimony of Nand Lal very carefully. He admits that his daughter had left his house without any information on 01.01.2008. He also deposed that she had been taken away by one Sonu. He also admitted that instead of lodging report with the police, he considered it proper to trace the girl and in that process Nishu was called by them at their house. Thus, Nand Lal admits the defence version that Nishu was called by him at his house. He further deposed that Nishu had assured that he would gather the details of Jyoti and her whereabouts. Nand Lal further deposed that on 06.01.2008 when he was returning to his house, he thought to contact Nishu and he went to his house and called Nishu out. He then asked Nishu as to why he did not tell him about Jyoti as promised by him and asked Nishu to accompany to his house so that he could have discussion with him. I take a pause here. It again fortifies the defence contention. Admittedly, Nishu was a minor and FIR No.11/08 PS Shalimar Bagh 6 Nand Lal had no business of taking him away with him without permission and consent of his father or guardian. Nishu then called his father out. Accused Ashok Kumar then told Nand Lal that he would not permit to take Nishu with him claiming that apni larki ko sambhalke nahi rakh sakte or hamre sir ho rahe ho and started hurling abuses. He further deposed that in the meanwhile other two accused persons came there and they also started beating. They gave slaps, kicks and fist flows and on hearing the noise, his brothers Naveen Gupta and Rajesh Gupta reached there in order to save him and thereafter accused Ankush brought danda and accused Ajay Saini caught hold of Naveen and accused Ankush @ Kamal gave danda blow on the person of Naveen.
15 Other two eyewitnesses have also deposed in the similar manner.
16 Ms. Verma has also contended that as far as accused Ajeet Saini @ Ajay Saini is concerned, he was having medical insertion of rod in his arm and it was not possible for him, even otherwise, to catch hold of Naveen which also falsifies the prosecution story. Again, no evidence was led by defence to FIR No.11/08 PS Shalimar Bagh 7 substantiate the same.
17 I have seen MLCs of all the three eyewitnesses. Preparation of MLCs is not in dispute though defence claims that accused never caused any such injury.
18 It becomes very much manifest from the testimony of Nand Lal that he himself was aggressor. Earlier also, he had detained a minor boy in his house. Undeniably, he was anxious about the whereabouts of his daughter but he had no business to detain a minor boy in his house and then try to take him again forcibly to his house without any permission or consent of his guardian. Naturally, accused Ashok Kumar became furious and he resisted. Therefore, tussle developed. As already noticed above, complainant had himself come to the house of accused persons and he wanted to take away minor son of accused Ashok Kumar. In such a situation, it cannot be said that accused persons were aggressors. Reaction of accused Ashok Kumar is rather found to be very natural and logical. 19 However, there is nothing to hold that accused Ankush @ Kamal was not present at the spot at the time of FIR No.11/08 PS Shalimar Bagh 8 incident or that accused had not quarrelled with complainant party. I have also seen the crossexamination of PW1 Nand Lal. A question was put to him. Such question reads as under:
Q. Is it correct that when you made enquiries about Jyoti from Nishu then all the accused started beating me (sic)?
20 Nand Lal answered in affirmative to said question. 21 Said question, in itself, indicates that all the accused persons were present at the spot and had beaten up Nand Lal. Undoubtedly, prosecution has not been able to explain as to how in the MLC of Nand Lal, there is found to be alleged history of throwing acid but fact remains that from the material on record, it stands proved that all the three accused persons had given quarrelled with Nand Lal and his two brothers, namely, Rajesh Gupta and Naveen Gupta. Defence has not been able to show or prove that either the blow received by Naveen was given to him by his own brother or by public persons. No evidence in defence was led. Of course, prosecution did not bring any support from any neutral corner despite the fact that people were present at the spot and had seen the occurrence and the shops, situated right at the spot, were also open but even defence has not been able to garner support from any independent witness. Nand Lal FIR No.11/08 PS Shalimar Bagh 9 had undoubtedly no reason to unnecessarily trouble the accused party or Master Nishu but simultaneously, accused had also no raison d'être to take law into their hands. 22 Once it is held that the incident had taken place and that accused persons had quarrelled with Nand Lal and his two brothers, then it is further required to be assessed as to what offence is exactly made out. There are few things which are very apparent and palpable. These are as under:
(i) Complainant Nand Lal attempted to take away minor son of Ashok Kumar without the knowledge or consent of his natural guardian.
(ii) Accused party is not aggressor.
(iii) There was no premeditation and quarrel initiated in a flash.
(iv) It was complainant himself who had come to the house of accused and accused had not gone to the complainant party.
(v) Blow in question has been given by a danda and no other weapon or instrument has been used.
(vi) Only one blow was received by Naveen Gupta on his head and even that injury was found to be simple in nature.
FIR No.11/08 PS Shalimar Bagh 10 23 MLC of Nand Lal shows minor abrasions and there is nothing to indicate that he was beaten up with danda. Similarly, MLC of Rajesh Gupta reveals simple injury and tenderness was noticed over right forearm and over left wrist. Bruises were found over both thighs. As far as Naveen Gupta is concerned, CLW was noted over his occipital region. Fact remains that all the aforesaid injuries are simple in nature and there is no bony injury either. Moreover, as per prosecution, danda was brought by Kamal from his house but, PW3 Naveen does not know as to from where he had brought the same and PW4 also has not thrown any light in this regard as he has deposed that when he reached the spot, no one was armed with danda. Thus, it can not be said that and danda was purposely brought at the spot later on to teach complainant a lesson. Thus it does not seem to be case of premeditation.
24 In such type of situation, when a sudden scuffle takes place, it cannot be inferred that accused had any such intention to cause culpable homicide or to cause such injuries as were likely to cause death. From the broad conspectus of the evidence appearing on record as well as the medical reports, it becomes perceptible that accused had no intention to cause death. FIR No.11/08 PS Shalimar Bagh 11 Conflict developed in spur of the moment and accused never intended to cause culpable homicide. Fortunately for complainant, even the injuries are found to be simple. 25 In the case of NIRANJAN KUMAR VS. STATE 2008 JCC 838, Delhi, accused had allegedly picked up a stone 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 Ld. Additional 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. Para 16 of such judgment read as under:
16. There can be no doubt about the legal proposition as canvassed by the learned counsel for the petitioner but in the present case where if the intent and the instrument used is seen whereby a stone was picked up from the road in the heat of the moment, there does not appear that respondent no. 2 committed such act with an intention or knowledge to commit an offence of culpable homicide not amount to murder punishable under Section 308 IPC.FIR No.11/08 PS Shalimar Bagh 12
26 In the case of BISHAN SINGH VS. STATE AIR 2008 SC 31, victim, who was assaulted by several accused with lathis, had received seven injuries including lacerated wounds on scalp and right parietal region. His arm was also fractured. He was held guilty u/s 308 IPC by trial court and High court also confirmed such conviction. However, Apex court noted that there was nothing in the deposition of victim that accused had attacked him with intention to kill. Conviction was accordingly altered holding as under: "11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly ac costed the injured. They had previous enmity. Although overtact had been attributed against each of the accused who were having lathis, only seven in juries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof. "
FIR No.11/08 PS Shalimar Bagh 13
27 In the case of Md. Isak Md. Vs. State of Maharashtra, AIR 1979 (SC) 1434, deceased was assaulted after sudden exchange of abuses and apex court held that there was no evidence to gather intention to cause death and it was observed that the intention was to cause grievous hurt and the offence fell u/s 325/34 IPC and not under Section 304 (1) IPC and conviction was altered accordingly. In that case, victim had died as well. Following observations made therein are noteworthy:
"...The occurrence in the course of which the deceased was assaulted, took place suddenly and after hot exchange of abuses, which took place between the deceased and the appellants. The appellants are said to have assaulted the deceased with sticks. There is no evidence to show as to which of the appellants struck the fatal blow on the deceased. Having regard therefore to the circumstances of the present case and the nature of injuries sustained by the appellants, we are unable to agree with the High Court that the case falls under Section 302. There is no evidence of any intention on the part of the appellants either to cause death of the deceased or cause such injuries of which the appellants could have the knowledge that it was likely to cause death although it cannot be doubted that the appellants had the common intention to cause grievous hurt to the deceased by lathis. Thus the offence fails under Sections 325/34 and not under Section 302 or 304 (1)."FIR No.11/08 PS Shalimar Bagh 14
28 In the case of GULAB SHEIKH 1970 SCC (CRL. 532), (as found mentioned in Law of Crimes by Ratanlal & Dhirajlal 26th Edition, Page no. 1365) deceased was drunk and hurled abuses under the influence of liquor. Accused warned him not to do so but upon persistence of deceased in abusing him, accused gave blows to the deceased and pushed him down. Deceased died as a result of head injury received by him due to fall and it was held that accused could be convicted u/s 323 IPC. 29 Thus, there is nothing, at all, to infer that the accused had any intention to cause death or to cause any such bodily injury as was likely to cause death. Nature of injury, nature of instrument and deposition of injured cumulatively fail to indicate that attack was with intention or knowledge to kill. 30 In view of my aforesaid discussion, I come to the conclusion that the intention of accused persons was to simply stop Nand Lal from taking away Nishu and in that process, simple hurt was caused. There was neither any intention to cause any FIR No.11/08 PS Shalimar Bagh 15 death or bodily injuries as were likely to cause death nor they had any such guilty knowledge and, therefore, all the accused are held guilty and convicted under Section 323/34 IPC only. Announced in the open Court On this 27th day of January, 2010.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District: Rohini Courts: Delhi FIR No.11/08 PS Shalimar Bagh 16 FIR No. 11/2008 PS Shalimar Bagh U/s 323/34 IPC State Vs. Ashok Kr. Etc. 28.01.2010 Present: Learned Addl. P.P. for the State.
All the three convicts in person with counsel. Heard arguments on sentence.
Learned defence counsel has stated that convicts Ashok Kumar and Ankush had remained behind the bars during investigation and they do not deserve any further incarceration. She has also argued that convict Ajay be given benefit of probation.
Learned Addl. P.P. has prayed for appropriate sentence.
I have carefully considered the aforesaid submissions.
All the three convicts have no previous bad antecedents. I also cannot loss sight of the fact that incident had taken place in a flash. Injuries in question are also minor and simple. As far as convict Ashok Kumar is concerned, he is in his sixties and he remained behind the bars between 07.01.2008 & 16.01.2008 and convict Ankush FIR No.11/08 PS Shalimar Bagh 17 also remained behind the bars between 19.02.2008 & 21.02.2008.
Keeping in mind their previous clean track and the manner in which incident had taken place and the aforesaid period spent by them behind the bars, I find it to be a fit case where they should be admonished. They both are accordingly admonished.
As far as convict Ajeet Saini @ Ajay Saini is concerned, he is also reported to be in his thirties. This happens to be his first offence. Keeping in mind the overall facts and circumstances of the case, instead of sentencing him at once, I direct that he be released on probation on his entering into a bond in a sum of Rs. 5,000/ with one surety in like amount for a period of six months. During aforesaid period of six months, he would keep peace and be of good behaviour and he would be bound to appear and receive sentence during the aforesaid period as and when so called upon by the Court.
Bonds have been furnished and accepted.
Their previous bail bonds are cancelled. FIR No.11/08 PS Shalimar Bagh 18 Respective sureties are discharged.
A copy of judgment and order be supplied to each of the convicts free of cost.
File be consigned to record room.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District: Rohini Courts: Delhi 28.01.2010 FIR No.11/08 PS Shalimar Bagh 19