Delhi District Court
State vs . Saurabh Singh on 23 July, 2016
IN THE COURT OF SH. AJAY KUMAR JAIN,
ADDL. SESSIONS JUDGE02,
SOUTH DISTRICT: SAKET: NEW DELHI
Sessions Case No. 28/15
Computer ID No. 02405R0375242009
State Vs. Saurabh Singh
S/o Shri Satvir Singh
R/o A37, Rajpur Khurd,
Mehrauli, New Delhi.
(On Bail)
FIR No : 589/09
P.S. : Mehrauli
U/s. : 323/341/506 IPC
(Charged u/s 308/341/289/506 IPC)
DATE OF INSTITUTION : 02.05.2015 (Initial date of
Institution: 16.11.2009)
JUDGMENT RESERVED ON : 14.07.2016
DATE OF DECISION : 23.07.2016
JUDGMENT:
1. The present case arose out of the trivial dispute between the neighbours due to lying of garbage in the street.
2. Prosecution case as per chargesheet is that on receiving DD no. 22A dated 02.10.2009 HC Rakesh Kumar alongwith Ct. Jaswant Singh reached the spot and found that injured persons were already taken to hospital by PCR. Thereafter, they reached the hospital and collected the MLC's of injured Daan State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 1 of 17) Singh, Bhagwati Devi and Puran Singh, however as per the report of HC Rakesh Kumar, injured denied to have given the statements and FIR was registered lateron 22.10.2009 on the statement of injured Daan Singh.
3. Injured Daan Singh in the FIR alleged that on 01.10.2009 there was a birthday function in their house, however some garbage (ie. disposable plates etc.) left lying in the street then on 02.10.2009 at around 3.30 pm Tara Devi mother of the accused staying in the neighbourhood shouted at his wife that why the garbage was lying in the street, thereafter started abusing her in the meanwhile, he alongwith his mother Bhagwati and brother Puran came at the door and asked her to stop, in the meanwhile her son accused Saurabh also came and asked them in what manner they are behaving with their mother and extended threat to kill them further restrained them, thereafter hit him on head by iron rod and his brother Puran on left hand and also hit his mother in her leg, thereafter, entered in his house and broken the windows of his own house, then his wife called the police, thereafter PCR van took them to AIIMS trauma center.
4. Police during investigation recorded the statement of other injured and witnesses, collected the MLC report of the injured persons and the injuries as per the MLC is found to be simple, inflicted by blunt object, however during investigation the iron State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 2 of 17) rod was not recovered and accused Saurabh was arrested on 26.10.2009. On completion of investigation chargesheet was filed for commission of offence u/s 323/506/289/341 IPC.
5. During the pendency of the case while recording of the statement of PW1 Daan Singh Ld. Metropolitan Magistrate found that prima facie commission of offence u/s 307/308/341/289/506 IPC is made out, as these offence are triable by court of Sessions, therefore committed the said case before this court.
6. On committal, this court vide order dated 26.04.2012 framed charges u/s 308/556/289/341 IPC against the accused Saurabh to which he pleaded not guilty.
7. Prosecution for substantiating the charge examined 11 witnesses. The injured witness Daan Singh, Bhagwati Devi and Puran Singh were examined as PW6, PW7 and PW8.
Prosecution also examined PW2 Rewati wife of PW6 Daan Singh. Besides this prosecution examined police witnesses PW1 Ct. Shiv Charan which is a witness relating to arrest and personal search of the accused , PW4 HC Rakesh Kumar who reached the spot on receiving the DD no. 22A on 02.10.2009 and also found the injured shifted to hospital by PCR and he also deposed that the went to hospital for recording their statement but injured stated that they will give the statements after consulting their elder brother, and on 22.10.2009 he State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 3 of 17) recorded the statements of injured Daan Singh pursuant to which prepared rukka and FIR was registered. Investigation was marked to PW 10 HC Roop Ram. PW5 HC Subhash Chander registered the FIR being Duty officer on 20.10.2009. PW10 HC Roop Ram is investigating officer who filed chargesheet.
8. PW3 Dr. Upeshna Sinha exhibited the Xray report of Puran Singh and Daan Singh showing no fracture. PW11 Dr. Rajiv Ranjan exhibited the MLCs of the accused persons.
9. PW6 injured Daan Singh, PW7 injured Bhagwati, PW8 injured Puran Singh and PW2 Rewati (wife of injured Daan Singh being the eye witness) all deposed that on 01.10.2009 in the afternoon around 3 pm, Tara Devi mother of the accused shouted on the factum that why the garbage is lying on the street and also started abusing, therefore Bhagwati Devi, Puran Singh and Daan Singh also came at the front door of their house and in the meanwhile accused Saurabh also came with iron rod and asked them why they are misbehaving thereafter threatened them to kill and inflicted injuries on the head of injured Daan Singh Singh, left hand of Puran Singh and on leg of mother Bhagwati Devi and then left with his mother to his home. All the witnesses stated that they were taken by PCR to hospital after incident and the MLC of injured were prepared.
State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 4 of 17)
10. After completion of prosecution evidence, accused in his statement u/s 313 Cr.P.C denied all incriminating circumstances and also examined himself in defence as DW1.
Material Exhibits
11. Ex.PW1/A is the arrest memo of accused Saurabh dated 26.10.2009. Ex.PW1/B is personal search memo of the accused Ex.PW3/A is the Xray requisition form of Pawan Singh dated 02.10.2009 showing no fracture injuries. Ex.PW3/B is the Xray requisition form of accused Daan Singh showing no fracture injury. Ex.PW4/A is DD no. 22A dated 02.10.2009 lodged at around 3.50 pm reporting quarrel at A30, Rajpur, Chhattarpur. Ex.PW1/D is the statement of injured Daan Singh, Ex.PW4/A is the endorsement on the statement. Ex.PW5/B is the direction for registration of FIR, Ex.PW5/A is the FIR. Ex.PW6/A is the complaint dated 08.10.2009 lodged by injured Daan Singh before SHO, Mehrauli. Ex.PW6/B is another complaint lodged by Daan Singh. Ex.PW10/A is the site plan of the spot dated 22.10.2009. Ex.PW11/E is the MLC of injured Bhagwati Devi showing assault on 02.10.2009 by stick and injury reported to be simple in nature. Ex.PW11/F is the MLC dated 02.10.2009 of injured Daan Singh showing history of assault by two persons by iron rod on scalp reported to have suffered simple injuries. Ex.PW11/G is the MLC of State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 5 of 17) Pawan Singh showing assault by 3 persons by iron rod on left arm, injury reported to be simple in nature.
12. Ld. Addl. PP for the state submitted that all the injured witnesses have supported the prosecution case and their testimonies remained unimpeached during cross examination. Ld. Addl. PP submits that the testimonies of injured witnesses is duly corroborated by the medical evidence. Ld.Addl. PP submits that even the defence evidence corroborates the factum of incident. Ld. Addl. PP submits that prosecution able to prove its case beyond reasonable doubt.
13. Ld. Defence counsel for the accused submitted that the testimony of injured witnesses cannot be believed as there are minor and major contradictions. Furthermore, number of public witnesses present at the spot were not examined by the police. Ld. Defence counsel for the accused further submits that there is delay in registration of FIR which itself suggests that the entire story is fabricated by the injured persons. Ld. Counsel submits that delay is fatal to the prosecution case. Ld. Defence counsel for the accused also submitted that the injured persons not named the accused in the MLC and this factor is sufficient to prove that he is falsely implicated after 20 days of the alleged incident. Ld. Defence counsel for the accused also submitted that injured persons are the aggressors who damaged the property of the accused and this fact is corroborated from the State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 6 of 17) fact that the PCR was called after the incident by the sister of the accused. Ld. Defence counsel for the accused also submitted that a civil case is also pending against the injured persons for damages in the competent court. Ld. Defence counsel for the accused submitted that accused is innocent and prosecution unable to proves its charge beyond doubt hence, accused is entitled for acquittal.
14. Arguments heard. Record perused.
Genesis of Incident
15. The genesis of incident as per the depositions of PW2 Rewati, PW6 Daan Singh, PW7 Bhagwati Devi and PW8 Puran Singh is that there was a birthday party in their house on 01.10.2009 which continued till midnight and due to that party some garbage was lying in the street, therefore Tara Devi mother of the accused in the afternoon came shouted and abused them to clear the said garbage, due to this quarrel took place and PW6 Daan Singh, PW7 Bhagwati Devi and PW8 Puran Singh were injured by accused Saurabh. This genesis of incident is also corroborated from the statement of accused Saurabh. Accused Saurabh (DW1) in his defence statement categorically stated that on 02.10.2009 he was present at his house at around 3 pm and her mother requested the neighbours to remove the dirty plates and other paper utensils piled against their residence gate and they instead of clearing State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 7 of 17) the plates abused his mother. Thus the prosecution case over genesis of incident is also substantially corroborated by accused in defence evidence. However, it is pertinent to mention that accused in cross examination of injured persons have nowhere pleaded that the dispute arose because the injured persons have abused their mother.
Description of incident
16. PW6 Daan Singh in his deposition categorically stated that on account of lying of garbage in the street, Tara Devi Mother of the accused started abusing his wife Rewati and on hearing abuse he alongwith his mother Bhagwati and brother Puran Singh came out, thereafter accused Saurabh also came with iron angle and hit him on head, and also restraint all of them at the door, also hit his brother Puran Singh (PW8) with iron angle and threatened to kill them. He further deposed that accused also pushed his mother and shooed away his pet dog which bite her on the left leg. PW7 Bhagwati Devi also deposed that when Tara Devi abusing her daughter in law, her younger son Puran Singh came thereafter, Saurabh also came with iron angle and hit on the arm of her son Puran Singh, thereafter Daan Singh also came on hearing the cry of Puran and thereafter accused Saurabh hit Daan Singh on his head and Tara Devi released dog towards her which bite her right leg. PW8 Puran Singh also stated that they objected the mother of State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 8 of 17) the accused not to abuse them in the meanwhile accused Saurabh came carrying iron angle and hit him on his hand and gave blow of iron angle on his left shoulder and on head of his brother Daan Singh, and accused let loose his dog upon his mother. PW2 Rewati Devi also stated on the same lines.
17. All the injured witnesses stated that the incident took place due to lying of garbage (ie, disposable plates) in the street which was objected by the mother of the accused and on this quarrel took place then accused Saurabh came and injured PW6Daan Singh and PW8 Puran, however there is a minor contradiction on the factum of injuries caused to PW7 Bhagwati Devi. PW6 Daan Singh and PW7 Puran Singh in their statement stated that accused Saurabh left the dog towards his mother which bite her whereas PW7 Bhagwati Devi stated that mother of the accused left the dog towards her to bite her.
18. Nothing material came in cross examination of these witnesses that incident does not take place in the manner stated by them. PW6 is confronted with his statement in cross examination that he has not stated in his statement Ex. PW6/C that accused hit him with iron angle, however in statement Ex.PW6/C PW6 categorically stated that accused has injured his head (seer phad diya). These type of confrontations cannot in any manner fall in the category of contradiction or improvement. There is nothing came in the cross examination State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 9 of 17) of PW7 Bhagwati Devi that accused Saurabh had not hit them. Her version over the incident do not appear to be dented during cross examination. The version of PW8 Puran Singh also over the incident do not appear to be dented in cross examination.
19. The statements of the injured witnesses are also corroborated through medical evidence MLC of Bhagwati Devi (Ex.PW11/E), Daan Singh (Ex.PW11/F) and Puran Singh (Ex.PW11/G) categorically suggests that they suffered the injuries as stated by them, however injuries are opined to be simple in nature. Ld. Defence counsel during arguments tried to discredit the statement of the injured witnesses on the ground that name of the accused is not mentioned in the MLCs. In the MLC of Daan Singh assault is stated to be caused by two persons and in the MLC of Puran Singh assault is stated to be by 3 persons. This argument has hardly any force because it is clear from the MLC the injuries suffered by the injured are in accordance to the incident narrated by the injured persons. Mentioning of two persons or three persons hardly matters because the mother of accused was also at the spot. Furthermore, the injured persons were not confronted with these kinds of anomalies. It is not expected from injured to name assailant when the MLC was prepared. Furthermore, injured were not cross examined on this point, therefore no opportunity provided for any clarification. Ld. Defence counsel State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 10 of 17) also argued that these injuries could be caused at some other place. This argument has also no force because no alternate suggestion was given to the injured person during their cross examination.
20. The statements of injured witnesses appears credible and prosecution able to prove that the injuries were inflicted over them in the manner stated by them, though there is a minor contradiction of dog bite on PW7 Bhagwati Devi. These minor contradictions are bound to happen and not in any manner appears to have jolted the overall prosecution case.
21. Ld. defence counsel submitted that there is inordinate delay in the FIR. There is apparent contradiction between the statement of PW4 HC Rakesh Kumar and that of the injured witnesses. Ld. Counsel submits that as per rukka Ex.PW4/A HC Rakesh Kumar stated that after receiving DD when he reached AIIMS hospital, injured Daan Singh and Puran Singh have denied to give any statement and stated them that they will give the statement after consulting their elder brother. Ld. Defence counsel submitted that incident alleged to take place on 02.10.2009 and the statement given by injured is on 22.10.2009 and this delay is fatal.
22. However, this contention is duly obviated by injured Daan Singh (PW6) in his testimony in which he has categorically stated that after coming back to their house from State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 11 of 17) trauma center he requested the police to register the case but it was told to him that they will not register until the MLC will be received from the hospital. Thereafter, on 03.10.2009 all three injured went to PS Mehrauli to get the FIR registered and police recorded statement of PW6 (Ex.PW1/D) but the FIR was not registered till 7 & 8 pm. He also stated in his testimony that on 04.10.2009 he again went to PS to enquire about registration of FIR and again police refused to register the case for want of MLC. He also stated that he again and again requested the police to register the case, however it was not registered, thereafter he also sent written complaints Ex. PW6/B and Ex.PW6/C which categorically suggest that despite representation the police has not registered FIR against the accused. Nothing material came in cross examination to disbelieve this move of the injured PW6. The injured has given a credible version before this court for delay in registration of FIR. In view thereof, the statement of PW4 Rakesh Sharma that the injured had not given statement on his asking and given the statement on 22.10.2009 has no value. The delay is duly explained by injured PW6.
23. Ld. Counsel for the accused submitted that the statement of injured cannot be believed as there is neither recovery of iron angle or the blood stained clothes. PW6 categorically stated in his testimony that on 03.10.2009 he went to the police station State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 12 of 17) alongwith other injured and given the iron angle to the police though it is denied by the police. However, considering the injuries and the version of the injured persons, mere non recovery of iron angle or blood stained clothes in present facts and circumstances is of no consequence.
24. Ld. defence Counsel also submitted that as per the testimony of the witnesses number of public persons gathered at the spot, however police has not recorded the statement of any of the neighbour/ public person. Injured persons are the interested persons thus no conviction can be based on the testimony of the injured persons. It is settled law that it is the quality of the evidence not quantity which matters. The testimony of the injured person has a greater probative value. And in present case, the testimony of injured persons is duly corroborated by the medical evidence. Nothing material came in cross examination that the incident has not taken place in the manner as projected by the prosecution. Therefore, non recording of the statement of the neighbours/ public witnesses is also of no value. Furthermore, the defence evidence itself corroborates genesis of incident.
25. Ld. Defence counsel also raised the plea that it is the injured persons who were the aggressors and broken the windows of the house of the accused and therefore the sister of the accused had called PCR. Ld. Counsel for the accused also State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 13 of 17) stated that prosecution unable to prove that the call of PCR is made from the injured side. Ld. Counsel stated that as per Ex. PW4/A, the call was made from 32627856 and this number is the landline number of the accused house. Ld. Counsel submits that accused in his testimony as DW1 also stated this fact and which remained unimpeached during the cross examination.
26. Mere factum of calling of the police after the incident by the accused side do not in any way discredit the testimony of the injured witnesses in present facts and circumstances particularly when the accused has not filed any complaint of false implication. Furthermore, no criminal complaint is also filed from the accused side for breaking of the window panes etc by the accused persons. Accused even not tried to prove the same by bringing her mother or sister as a defence evidence in this case. At this point it is pertinent to be mention here that even the defence of the accused corroborates the version of the injured. It is natural that if the injured were beaten in the manner suggested by the accused, they will retaliate by breaking the doors, windows etc. though the injured persons have taken the stand that it was broken by the accused himself. The defence of the accused somehow facilitated the version of the injured because there is no real motive came out from the defence of the accused that why the injured persons had broken their State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 14 of 17) windows, particularly because no criminal complaint made against injured persons. On the other hand, this fact inferentially suggests that the injured persons were beaten by the accused in the manner deposed by them.
27. Ld. Defence counsel also raised the plea over the preparation of site plan. Ld. Defence counsel submits that IO stated that the site plan was prepared at the instance of the injured PW6 Daan Singh, however PW6 Daan Singh in his cross examination stated that site plan was not prepared in his presence. Ld. Counsel submits that this itself creates doubt over the factum of place of occurrence. However, this contention hardly dents prosecution case because it is clear from the testimony of witnesses as well as of defence evidence itself that the incident took place in front of the house of the injured persons and the house of the accused is also in the neighbourhood of the injured persons.
28. Now the main question remains to be determined what offences have been committed by the accused. The accused is charged for commission of offence u/s 308/506/289/341 IPC. The incident as discussed arose on the trivial issue of lying of garbage in the street due to which minor altercation that took place between the neighbours, accused came in defence of his mother and without any pre meditation or pre arranged plan and in the heat of the movement hit the injured persons. The entire State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 15 of 17) incident took place on the spur of the movement and injuries inflicted are simple in nature. There is no uncruel act on the part of accused as he immediately left the spot with his mother. The accused also do not appear to have been involved in the criminal activities. Therefore, from these facts and circumstances it cannot inferred that the injuries caused with such an intention or knowledge and under such circumstances that if it had caused death, the act of the appellant would have amounted to culpable homicide not amounting to murder. However, the offence falls out within the ambit of section 321 IPC which envisages voluntarily causing hurt, hence the accused is found to have committed offence u/s 323 IPC but no offence u/s 308 IPC is made out against the accused Saurabh. Hon'ble Delhi High Court in case titled "Pawan Chadha & Ors. Vs. State, 2016 (2) JCC 1198", in similar facts and circumstances in a detailed judgment considering the various authorities of High Court and Supreme court found accused liable for commission of offence u/s 323 IPC and not u/s 308 IPC.
29. Injured witness in their deposition also categorically deposed over the threatening to kill and wrongful restrain committed by the accused while inflicting injuries, therefore he is also found to have committed offence u/s 506/341 IPC, however there is a dispute whether the dog bite on the injured State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 16 of 17) PW7 Bhagwati Devi was by the accused or by his mother, therefore accused is given benefit of doubt and not held guilty for commission of offence u/s 289 IPC.
30. On overall appreciation of evidence, prosecution able to prove its case beyond reasonable doubt against accused Saurabh Singh for commission of offence u/s 323/341/506 IPC, hence accused is found guilty for commission of offence u/s 323/341/506 IPC, thus convicted for commission of offence u/s 323/341/506 IPC. Accused be heard on quantum of sentence.
Announced in Open Court
On 23rd July, 2016 (Ajay Kumar Jain)
ASJ02: South District:
Saket: New Delhi
State Vs. Saurabh Singh, SC NO. 28/15, FIR No. 589/09, PS Mehrauli dated: 23.07.2016 (page 17 of 17)