Delhi District Court
State vs Sumit on 13 September, 2017
1
IN THE COURT OF SH.NARINDER KUMAR
SPECIAL JUDGE2 NDPS ACT
(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Session Case No. 48/16
FIR No. 15/16
PS Prasad Nagar
U/s 308(Part II)/34 IPC
In the matter of:
State
Versus
1. Sumit,
S/o Sh. Atma Ram,
R/o H. No. 16/555, EBlock,
Bapa Nagar, Padam Singh Road,
Karol Bagh, Delhi.
2. Dipesh Kumar,
S/o Sh. Manoj Kumar,
R/o H. No. 16/601, IBlock,
Bapa Nagar, Arya Samaj Road,
Karol Bagh, Delhi.
3. Deepak,
S/o Sh. Khoob Ram,
R/o H. No. 16/541, EBlock,
State v. Sumit Kumar & etc.
2
Bapa Nagar, Padam Singh Road,
Karol Bagh, Delhi.
4. Sanjay,
S/o Sh Veer Bhan,
R/o H. No. 3961/2930, Regarpura,
Karol Bagh, Delhi.
Date of Institution : 25.05.2016
Date of Judgment : 12.09.2017
JUDGMENT
The above named four accused have been facing trial for an offence under Section 308 (Part II) IPC, 308 (Part II) read with Section 34 IPC.
2. As per allegations levelled by prosecution against them on 04.01.2016 at about 6.30 pm Sanjay accused in furtherance his common intention and that of his three co accused, inflicted injury on the head of Sumit Bindal near H. No. 5183, Street No.4, Krishna Nagar, Karol Bagh, Delhi. They are stated to have so acted with such intention or knowledge and under such circumstances that if by said act State v. Sumit Kumar & etc. 3 they had caused death of Sumit Bindal, they would have been guilty of culpable homicide not amounting to murder.
Present case came to the registered on the basis of rukka sent by SI Mohit Malik from the spot on 04.01.2016 at 8.50 pm. It may be mentioned here that SI Mohit Malik happened to reach the spot in the company of Ct. Pushpender on receipt of copy of DD No. 42A. DD No. 42 A was recorded at PS Prasad Nagar at 6.40 pm on receipt of information from PCR that one person had been hit with a brick near H. No. 5183, Street No. 4, Ganga Mandir Marg, Krishna Nagar, Karol Bagh, New Delhi and taken to Ganga Ram Hospital.
On reaching the spot, SI Mohit Malik came to know that the injured had been removed to Sir Ganga Ram Hospital and that no eye witness was available at the spot. So, he left for the hospital leaving the constable behind to guard it.
On reaching the hospital, SI collected MLC of Sumit Bindal. Sumit Bindal was found under treatment but State v. Sumit Kumar & etc. 4 the doctor declared him unfit for making statement. No eye witness was found by the SI even at the hospital and as such he returned to the spot, appended rukka to DD entry and got this case registered.
On 5.10.2016, during investigation, PW Saurabh Bindal, brother of injured Sumit Bindal met SI Mohit Malik and narrated the manner in which the occurrence took place and he had witnessed the same. He further narrated therein about the removal of his brother to Sir Ganga Ram Hospital and to have informed PCR staff by making a call. He also explained that he could not make statement on 04.01.2016 in view of the physical condition of his brother.
Different doctors opined that Sumit Bindal was unfit to make statement on 06.01.2016, 10.02.2016, 12.03.2016 and 02.04.2016.
Case of the prosecution is that CCTV cameras were lying installed in front of the office of the victim and his brother. Saurabh Bindal gathered the CCTV footage recorded by camera no. 2, then transferred the same to two CDs. Out of the two CDs, SI Mohit Malik seized one CD State v. Sumit Kumar & etc. 5 after having turned the same into a parcel whereas the other CD was kept open by the SI. The SI collected certificate under Section 65B of Evidence Act from Saurabh Bindal.
Further it is case of the prosecution that on 06.01.2016 at the pointing out of Saurabh Bindal, accused Sumit Kumar and Dipesh were arrested from near Shiv Mandir, Arya Samaj Road, Bapa Nagar, New Delhi. On the basis of disclosure statement, and at the pointing out of Saurabh Bindal, Deepak and Sanjay accused were arrested. All of them were got medically examined. Two photographs are said to have been got prepared from the CD produced by Saurabh Bindal before the police.
3. On completion of investigation, challan was put in court.
Committal of the case
4. After compliance with provisions of Section 207 Cr.P.C, case came to be committed to Court of Session.
State v. Sumit Kumar & etc. 6 Charge
5. Prima facie case having been made out, charge was framed for an offence u/s 308 (Part II) IPC was framed against Sanjay accused and for the same offence with aid of Section 34 IPC was made out against Sumit, Dipesh and Deepak accused. Since accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence
6. In order to prove its case, prosecution has examined following 9 witnesses: PW1 : ASI Ramesh - To prove recording of FIR PW2 : Dr. Nitesh Kumar - Who attended the injured. PW3 : Sh. Saurabh Bindal - Eye witness to the occurrence. PW4 : Ct. Pushpender To prove his participation in the investigation.
PW5 : Dr. Prakash Shastri PW6 : Sh. Piyara Singh - Record Clerk from Sir Ganga Ram Hospital PW7 : Ct. Vikas - To prove his participation in investigation.
State v. Sumit Kumar & etc. 7 PW8 : SI Mohit Malik - IO of the present case. PW9 : Sh. Sumit Bindal - the Victim PW10: Dr. Tanmaywho medically treated the victim during his admission .
Statement of accused persons
7. When examined u/s 313 Cr.P.C, accused have denied all the incriminating circumstances appearing in evidence against them and claimed false implication. Despite opportunity, accused have opted not to lead any evidence in defence.
8. Arguments heard. File perused.
Contentions
9. Learned Additional Public Prosecutor has referred to the statement of PW3 Saurabh Bindal and submitted that from this statement coupled with medical evidence and statement of PW9, the victim, prosecution has able to establish its case against all the accused persons beyond reasonable doubt and as such they be held guilty State v. Sumit Kumar & etc. 8 and convicted in this case.
On the other hand, it has been argued by learned defence counsel that presence of PW Saurabh Bindal on the given date, time and place of occurrence is highly doubtful and as such no reliance should be placed on his testimony.
The other contention is that PW3 Saurabh Bindal has not supported the case of the prosecution regarding arrest of the accused persons from the given places, which further creates doubt in the prosecution version.
As regards ocular account of the occurrence, main stay of the prosecution is on the statement of PW3 Saurabh Bindal and PW9 Sumit Bindal.
Ocular Account PW9
10. According to PW9 Sumit Bindal on 04.01.2016 at about 7 pm, he was present at his office which he runs with his brother Saurabh Bindal on the ground floor of their house No.5183, Street No. 4, Krishna Nagar, Karol Bagh, Delhi. At that time, he received a call of some of his client and as such he came out of the office and reached the State v. Sumit Kumar & etc. 9 footpath in order to talk to said client separately. While he was having conversation on his mobile phone, someone hit him from behind.
The witness did not remember as to who had inflicted the injury and for what reason he sustained the said injury, but according to him after injury, he had become unconscious. Further according to him, he has lost some of his memory and he does not remember the entire incident.
As regards identity of the assailants, witness stated that he could not identify assailants even if they were shown to him.
In view of the above statement of the witness, learned Addl. PP sought permission from the Court fo put leading questions to the witness. When so examined, witness stated that so far he remembered, at the time he came out of his office, four boys were consuming some intoxicant and also urinating in front of their office. He further submitted that he objected to these activities of boys, but he did not remember if they hurled abuses at him State v. Sumit Kumar & etc. 10 when he was so objected. He further admitted that Saurabh Bindal had come out of the office at that time and that both of them had tried to make understand those boys, but they hurled abuses at them. He further admitted that he started returning to his office, but displayed ignorance as to who had inflicted injury on his head.
PW3
11. So far PW3 Saurabh Bindal is concerned, according to him on 04.01.2016 he was present at his office situated on the ground of their house. At about 6.40 pm, his brother was talking to someone on mobile phone, out of the said office. After sometime, he heard noise, came out of the office and found four boys sitting on the stairs leading to his office. Those boys were consuming some intoxicating material. One of them was seen urinating there.
Further according to PW3, his brother told those boys to go away from there but those boys started hurling abuses. He then intervened but one of those boys extended threats to him that in case they confronted with them, they would not be able to see the other day. Therefore, he State v. Sumit Kumar & etc. 11 advised his brother to enter the building and not to indulge in any confrontation with those boys.
Further according to PW3, when he and his brother started returning to their office, one of the aforesaid boys came running and hurled stone at his brother. Stone hit on the head of brother. One of the companions proclaimed "Gaya Kaam se" and ran away. Other three boys also ran away. He then chased those boys. At that time, they hurled stones at him as well. Sensing the gravity, he returned to his office. Further according to PW3, on reaching his office, he found his brother lying unconscious on the ground with people around him.
With the help of those persons, he shifted his brother to car and took him to Sir Ganga Ram Hospital in the company of his sister and sister in law Archana and Namrata. Doctor attended his brother at the hospital and medically treated him.
It is true that present case came to be registered on 4.1.2016 on the basis of rukka Ex.PW8/A appended by SI Mohit Mathur to DD No.42A, and statement of PW3 State v. Sumit Kumar & etc. 12 Saurab Bindal did not make statement before the police on 4.1.2016, but this fact does not create any doubt regarding presence of PW3 at the time of occurrence and regarding removal of the injured to hospital.
In DD No.42 A recorded at P.S.Prasad Nagar, the place of occurrence stands recorded. It also stands recorded therein that one boy had been hit with a brick and removed to Ganga Ram Hospital. The contents of DD No.42 A and time of its recording are not in dispute.
During evidence, two CDs were produced before the police by PW3 Saurab Bindal. One of the CDs is Ex.P2. It was kept open. Other CD is Ex.P3. It was sealed by SI Mohit into a sealed parcel. Ex.PW3/B is the certificate issued by PW3 as regards the CD.
From the statement of PW3 it stands established that CCTV cameras were lying installed in front of the office of PW3. The CCTV footage contained the CDs is from camera no.2 as certified in Ex.PW3/B. PW3 stated about the CCTV footage in his statement recorded on 6.1.2016. Statement of PW3 in this regard finds corroboration from State v. Sumit Kumar & etc. 13 the statement of SI Mohit. There is nothing on record to suggest that the CCTV footage has been tampered with or there was any possibility of tampering with the contents of these two CDs.
Court has gone through the contents CD Ex.P2 available on judicial record, by operating it on the system available in Court. It depicts the manner in which the occurrence took place and lends complete corroboration to the version narrated by PW3 and PW9.
From the CCTV footage, court finds that prosecution version regarding presence of PW3 and PW9 on the given date, time and place stands duly established, as both the brothers can be seen in the recording coming to four boys and returning to their office.
Presence of PW3 in the hospital, in the company of his brother PW9injured also stands duly established from the MLC. Had PW3 not been present at the spot, he would not have removed his brother to the hospital and his name would not have found mention in the MLC.
State v. Sumit Kumar & etc. 14 It is true that according to SI Mohit and as recorded by him in the rukka Ex.PW8/A, no eye witness was available in the hospital at the time he visited there, but it does not mean that PW3 was not present at the hospital. It appears that when the SI went near PW9 in the hospital, PW3 did not meet him. PW3 might have gone here and there at that particular point of time and as such it led the SI to record that no eye witness met him at the hospital. PW3 was not subjected to any crossexamination in this regard.
It is true that there are certain improvements in the statement of PW3 made by him in Court in comparison to the statement made by him before the police, but same are of no significance in view of the version recorded in the form of CCTV footage.
From the cogent and convicing evidence, it stands proved that the occurrence took place in the manner stated by PW3 and PW9. It stands proved that at the time of occurrence, one of the four boys hurled stone, having aimed at, and the stone hit Sumit Bindal on the head. It is true State v. Sumit Kumar & etc. 15 that no stone was seized by the police from the spot. But in view of the oral and electronic evidence, non seizure of any stone from the spot by the police does not adversely affect the case of prosecution.
Medical Evidence
12. Medical evidence supports the ocular account. According to PW10 Dr. Tanmay, the injury observed on the person of Sumit Bindal was life threatening and patient suffered from left fronto temporo parietal acute sub dural hematoma, which caused pressure effect on brain of the patient. The injury was declared grievous in nature.
Even otherwise, Sumit Bindal had to remain admitted to hospital for a long time since 4.1.2016 . Even presently, he is under medical treatment, as stated by him, and his statement in this regard goes unchallenged.
Identity of the accused
13. As regards identity of the offender, who aimed and hit the stone on the person of Sumit Bindal, according State v. Sumit Kumar & etc. 16 to PW3 Saurab Bindal, it was Sanjay, accused, who hurled stone at his brother; that his companion Sumit was seen urinating at the stairs of the office and other two accused were accompanying the two accused.
Nowhere it has been pleaded on behalf of Sanjay that he was not present at the spot on the given date and time. Rather, a suggestion was given on behalf of the defence that they have been falsely implicated due to dispute on wages with the uncle of PW3 and PW9. PW3 categorically denied this suggestion. No defence evidence has been led to prove this defence plea.
14. From the material available on record, participation of Sanjay accused in hurling of stone at PW9 after having aimed him on the given date and time stands duly established.
Contradictory version as to arrest of the accused
15. Case of prosecution is that after the occurrence, the offenders fled away and could not be apprehended though chased by PW3 to an extent. CCTV footage lends State v. Sumit Kumar & etc. 17 corroboration to this version narrated by PW3.
As per prosecution version, accused persons were arrested by SI Mohit on 6.1.2016 at the pointing out of Saurabh Bindal PW3.
It is true that PW3 Saurabh Bindal has not supported the statement of PW8 SI Mohit on this point and stated that on 6.1.2016 on reaching police station he verified the identity of four persons present there as the persons involved in commission of the crime and thereupon police arrested them. So, according to PW3 none of the accused was arrested from outside the police station.
But this contradiction in the statements of PW3 and PW8 does not create doubt regarding involvement of Sanjay accused in the commission of the crime, when statement of PW3 regarding his involvement in hitting his brother with a stone on the head stands corroborated by CCTV footage.
It is well settled that simply because of the negligence or certain intentional acts on the part of the Investigating Officer, the version narrated by the eye State v. Sumit Kumar & etc. 18 witness cannot be thrown away.
Here, SI Mohit has not come to the Court with clean hands on the point of arrest of the accused, but this fact does not falsify the version narrated by PW3 regarding the involvement of Sanjay accused.
Involvement of other three accused
16. As regards other three accused, i.e. other than Sanjay, CCTV footage does not show any meeting of minds of the other three accused with Sanjay accused in inflicting of injury on the person of PW9 by Sanjay. CCTV footage also does not reveal that any of the coaccused of Sanjay instigated him to hurl stone at PW9. Actually, as per CCTV footage, after the four accused left the spot together, only Sanjay can be seen inflicting the injury on the person of PW9 and no other accused is visible around him. Therefore, none of these three coaccused Sumit, Dipesh or Deepak can be held liable for the act done by Sanjay. These three accused therefore, deserve to be acquitted when prosecution has failed to bring home charge against any one State v. Sumit Kumar & etc. 19 of them.
Conclusion
17. In view of the above discussion, Court finds that prosecution has been able to establish beyond doubt that Sanjay accused inflicted injury on the head of Sumit Bindal which, according to the doctor was lifethreatening. Having regard to all the facts and circumstances in which Sanjay hurled the stone hitting and aiming at Sumit Bindal, Court holds him guilty of the offence under Section 308 (Part II) IPC.
As regards, remaining three accused, they are acquitted in this case, while extending them the benefit of doubt.
Sanjay accused is accordingly convicted for the offence under Section 308 Part II IPC.
18. Let he be heard on the point of sentence. Announced in the open Court on this 12th day of September, 2017 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT:
(CENTRAL DISTRICT) TIS HAZARI COURT:DELHI State v. Sumit Kumar & etc.