Delhi District Court
State vs . Nand Lal Etc Fir No. 86/05 Page 1 on 15 January, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 137/09.
FIR No. 86/05.
P.S. Model Town.
U/S: 308/307/34 IPC.
STATE
Versus
1. Nand Lal S/o Sh. Kesari Sahu,
R/o Village & PO Akrua, PS Peero,
District Bhojpur Ara, Bihar.
Second Address:
Jhuggi No. 25-B-103,
Lal Bagh, Delhi.
2. Krishna Devi, W/o Nand Lal,
R/o Village & PO Akrua, PS Peero,
District Bhojpur Ara, Bihar.
Second Address:
Jhuggi No. 25-B-103,
Lal Bagh, Delhi.
Date of Institution : 01.02.2006.
Date of Argument : 07.12.2010.
Date of Judgment : 13.01.2011.
JUDGMENT
1. Prosecution case is that on 05.02.2005, complainant Saraswati Devi had gone out for some work. At about 2.15 pm, when she came back, she saw her Devar Nand Lal and Devrani Smt. Krishna Devi standing in front of her house. They demanded the State Vs. Nand Lal etc FIR No. 86/05 Page 1 key of the house from the complainant. Sunita, niece of Saraswati Devi also reached there. When Saraswati Devi started walking towards her house, Smt. Krishna Devi caught her and Nand Lal gave three hammer blows on her head due to which, she started bleeding and when Sunita raised noise "Bachao-Bachao", Smt. Krishna hit a stone on the head of Sunita as a result of which, she also started bleeding. People from Mohalla intervened to save them. PCR van came at the spot and rushed Saraswati Devi and Sunita to hospital. Accused Nand Lal and Krishna Devi were later arrested and on completion of investigation, charge sheet was filed against them under Section 341/323/34 IPC.
2. The Ld. MM vide order dated 16-03-2009 took cognizance of offence u/s 308/307/34 IPC and committed the case to Sessions Court. Charge under Section 341/307/308/34 IPC was framed against both the accused to which, they pleaded not guilty.
3. In order to prove its case, prosecution examined six witnesses. PW-1 is Sunita. She is the niece of the complainant. She deposed that on 05.02.2005 at about 2.00-2.15 pm, accused Nand Lal, Devar of her Mausi Saraswati Devi, was standing at the gate of jhuggi of her Mausi. His wife Krishna Devi was also with them. They demanded key from her Mausi and when her Mausi questioned as to why she should give the key and started walking towards the jhuggi, accused Krishna Devi stopped her way and accused Nand Lal, who was having a hammer, gave 3-4 hammer blows on the head of Saraswati Devi due to which, blood started oozing from her head. When she raised alarm, co-accused Krishna Devi hit her something on her head due to which, she also started bleeding. She deposed that her Mausi Saraswati Devi fell down and became unconscious.
State Vs. Nand Lal etc FIR No. 86/05 Page 2 Someone informed the police. Police came at the spot and took her and her Mausi to Hindu Rao Hospital for treatment. In reply to a leading question, she admitted that Krishna Devi had caused injuries to her with a stone.
PW-2 is Smt. Saraswati Devi. She is the complainant. She proved her statement Exbt. PW-2/A. She was declared partly hostile and was cross examined by the learned APP.
PW-3 is HC Hemant Kumar. He is the witness of investigation. He deposed that on 07.02.2005, he joined the
investigation with SI Kishan Lal. He stated that on that day, Duty Officer handed over to him the copy of FIR and original endorsement and he went to jhuggi No. N-25/B-103, Lal Bagh and handed over the same to SI Kishan Lal who prepared the site plan. Statements of Sunita and supplementary statement of Saraswati Devi were then recorded. He further stated that accused Nand Lal and Krishna Devi were arrested at the instance of Smt. Saraswati Devi from Azad Pur station and their personal search was conducted.
PW-4 is HC Raj Kumar, Duty Officer. He proved the FIR Exbt. PW-4/A. PW-5 is Constable Sunita, DD Writer. She had recorded the information received from hospital vide DD No. 53-B which has been proved as Exbt. PW-5/A. PW-6 is Dr. Vinod Kumar Anand from Hindu Rao Hospital. He conducted the medical examination of Saraswati Devi and Sunita. He proved their MLCs as Exbt. PW-6/A and Exbt. PW-6/B State Vs. Nand Lal etc FIR No. 86/05 Page 3 respectively.
4. Statements of accused were recorded under Section 313 Cr. PC wherein they stated that they are innocent.
5. In their defence, accused examined DW-1 Kesari Sahu. He is the father of accused Nand Lal who deposed that there was dispute between his sons Jeevat Saha and Nand Lal and on his intervention, a compromise took place between both the brothers vide compromise deed Mark X and pursuant to the compromise, his both sons started residing at Lal Bagh house but later on, accused Nand Lal was thrown out of the house and since then, he has been residing at Wazir Pur. He deposed that despite his asking, Jeevat Saha refused to allow Nand Lal to stay in the house. According to him, his daughter in law Saraswati Devi herself broke her head and thereafter got the accused falsely implicated.
6. Arguments have been heard from the learned APP as also from the learned defence counsel. The learned defence counsel has argued that there is a delay of two days in the registration of the FIR. IO has not been examined and there is no explanation for the delay. It is submitted that complainant and accused are relatives and there was property dispute between them. Complainant wanted to grab the jhuggi. Injuries are self inflicted and accused have been falsely implicated. It is further argued that prosecution has failed to prove that accused had any intention to kill the complainant. Weapon of offence has not been recovered. Injuries have been opined as simple in nature. It is further stated that PW-2 has deposed that she had become unconscious but the MLC proves that she was conscious. The name of the accused is not mentioned in the MLC. Regarding State Vs. Nand Lal etc FIR No. 86/05 Page 4 PW-1 Sunita, it is stated that she is a planted witness as her statement was not recorded on 05.02.2005. It is thus argued that prosecution has failed to prove its case against the accused beyond doubt. The learned APP however argues that the delay for the registration of the FIR is not fatal to the present case and there is no evidence to prove that injuries were self inflicted. It is stated that DW- 1 is an interested witness and the recovery of weapon is not a must before convicting the accused. It is argued that injuries were caused on the vital parts of the body with the hammer which clearly proves the intention on the part of the accused to cause death of the complainant. It is submitted that there is no reason to disbelieve the testimonies of PW-1 and PW-2 and that prosecution has been able to prove its case against the accused beyond doubt.
7. I have considered the submissions made before me and have carefully gone through the records of the case. PW-1 Sunita and PW-2 Saraswati Devi have deposed that the incident took place on 05.02.2005. Saraswati Devi deposed that she was rushed to Hindu Rao Hospital where police met her and recorded her statement Exbt. PW-2/A. Statement of Saraswati Devi was recorded on 05.02.2005 itself but the FIR has been registered on 07.02.2005. Admittedly, there is a delay of two days in the registration of the FIR. Prosecution could not produce SI Kishan Lal as he had expired. Copy of his death certificate has also been received on record along with the report of the Process Server. Thus, there is no explanation for two days delay in the registration of the FIR but it is a well settled law that delay in registration of the FIR cannot be a ground to doubt the prosecution case. Unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. In State Vs. Nand Lal etc FIR No. 86/05 Page 5 the case of Ravindra Kumar Vs. State of Punjab(2001) 7 SCC 690, the Hon'ble Supreme Court while dealing with the fact of delayed FIRs and the FIRs lodged promptly immediately after the offence was committed observed as under:-
"To attack on the prosecution case on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police, it has to be remembered that law has not fixed any time for lodging the FIR. Hence delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is, that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Bearing these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein."
8. Similarly, in the case of Tara Singh Vs. State of Punjab 1991 SCC (Crl.) 710, the Hon'ble Court held that delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Statement of injured Saraswati Devi had been recorded on the date of incident itself i.e. 05.02.2005. Her MLC Exbt. PW-6/A also proves that she was medically examined and received treatment from Hindu Rao Hospital on 05.02.2005. As per MLC, she was brought to the hospital with the alleged history of assault. The delay of two days is not on account of any fault on the part of the injured. There is also no evidence that there was any fabrication during two days prior to the registration of the FIR and therefore prosecution case cannot be doubted on account of delayed FIR. In her cross examination, PW-1 Sunita stated that police had recorded her statement in the hospital but could not tell the date of recording of her statement. The learned State Vs. Nand Lal etc FIR No. 86/05 Page 6 defence counsel has argued that statement of Sunita was recorded on 07.02.2005 and therefore she is a planted witness and cannot be believed. Dr. Vinod Kumar, who conducted the medical examination of Sunita at the hospital, proved her MLC as Exbt. PW-6/B. The MLC is dated 05.02.2005 and the MLC records that she was brought in the hospital with the alleged history of assault. Sunita herself had received injuries in the occurrence and was got medically examined from the hospital on the same day. Therefore, it cannot be held that she is a planted witness merely because her statement was recorded after two days i.e. 05.02.2005. It is correct that the name of accused is not recorded in the MLC but by itself does not prove that accused had not assaulted Saraswati Devi and Sunita.
9. It has come in evidence that accused Nand Lal is the Devar of Saraswati Devi and accused Krishna Devi is the wife of Nand Lal. Thus, accused and injured are related to each other. In cross examination, Saraswati Devi admitted that she was not having cordial relations with accused and his family. It is borne out from the cross examination of Saraswati Devi that there was some property dispute between her and the accused. The defence of the accused is that the injuries are self inflicted and to prove this accused is also relying on the testimony of DW-1 Kesari Sahu father in law of Saraswati Devi who deposed that Saraswati Devi herself broke her head and thereafter got the accused falsely implicated. In cross examination, he stated that Saraswati Devi had caused injuries on her head in his presence but at the same time in reply to a question put by the learned APP, he stated that he cannot say whether he was present in Delhi or at village on the day of occurrence. If he himself is not sure whether he was present in Delhi on the date of occurrence or not, it is improbable that he had seen Saraswati Devi inflicting injuries on her State Vs. Nand Lal etc FIR No. 86/05 Page 7 head. He could not tell the name of any of the persons who were present at the spot at the time of incident. The defence taken by the accused is also not acceptable for the reason that PW-1 Sunita also sustained injuries in the occurrence and it is not the defence of the accused that the injuries sustained by her were also self inflicted. There is no reason why Sunita would inflict injuries to herself. The defence taken by the accused is therefore not acceptable.
10. Admittedly, no weapon of offence has been recovered but that by itself is not sufficient to discard the prosecution case, more so, when both the injured have deposed that accused Nand Lal had given three hammer blows on the head of Saraswati Devi.
11. PW-1 Sunita deposed that co-accused Krishna Devi hit something on her head due to which, she started bleeding. She did not tell the name of the weapon with which, injuries were caused to her. In response to a leading question put by the learned APP, she admitted that in her statement to the police, she stated that Krishna Devi had caused injuries on the left side of her head with stone. The name of weapon having come from the mouth of PW-1 only in response to a leading question is not a substantive evidence and therefore cannot be acted upon without corroboration. But there is no corroboration with regard to the weapon used in causing injuries to Sunita, in as much as, PW-2 Saraswati Devi deposed that when her niece Sunita raised alarm "Bachao-Bachao", she was also beaten up by Krishna Devi due to which, she started bleeding. She did not tell if any weapon was used by Smt. Krishna Devi. She was subjected to cross examination by the learned APP. In the said cross examination, she stated that she does not know if Krishna Devi had hit stone on the head of Sunita. The MLC of Sunita proves that she State Vs. Nand Lal etc FIR No. 86/05 Page 8 has received a lacerated wound ½ cm x ½ cm on the left side of the forehead and as per the opinion of the doctor, injuries were simple in nature. Section 308 postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act cause death, he would be guilty of culpable homicide not amounting to murder. Since in the present case weapon used in causing injury to Sunita is not known and the injuries are simple in nature, requisite intention or knowledge as required under Section 308 IPC is not proved. However since it is proved that injuries have been received by Sunita, Section 323/324 IPC is made out.
12. For the purpose of constituting an attempt under Section 307 IPC, two ingredients are required, first an evil intent or knowledge or secondly, an act done. It is sufficient to justify a conviction under Section 307 IPC if there is present an intent coupled with some overt act in execution thereof. In the present case, PW-2 Saraswati Devi deposed that accused Nand Lal gave three hammer blows on her head. Her MLC Exbt. PW-6/A proves that she had received CLW ½ cm x ½ cm over parital region (right side) and as per the opinion of the doctor, injuries are simple in nature. This proves that the hammer was not hit with forceful impact. If the intention was to kill Saraswati Devi, one hammer blow on the head would have been sufficient. From the nature of the injuries, it appears that injured was hit with the blunt side of the hammer otherwise if she was hit by the pointed side, injuries would have been fatal. Despite giving three hammer blows, injured had received a single minor injury on her parital region. It clearly proves that accused had no intention to kill her and therefore Section 307 IPC is not made out against the accused and therefore accused cannot be convicted under Section 324 IPC for causing injuries to PW-2 Saraswati Devi with the State Vs. Nand Lal etc FIR No. 86/05 Page 9 hammer.
13. It has come in evidence in the testimony of Smt. Saraswati Devi that both the accused were standing in front of her house and demanded the key of the house from her and on questioning, accused Krishna Devi caught her and her Devar Nand Lal gave three hammer blows on her head and accused Krishna Devi gave beatings to her niece Sunita causing her injuries. PW-1 Sunita also deposed that Krishna Devi stopped the way of her Mausi Saraswati Devi. Thus, accused persons had wrongfully restrained Saraswati Devi and therefore offence under Section 341 IPC is also proved against the accused persons.
14. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against both the accused beyond doubt. I therefore hold both the accused guilty and convict them under Section 323/324/341/34 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NORTH-WEST 03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT ON 13.01.2011.
State Vs. Nand Lal etc FIR No. 86/05 Page 10 IN THE COURT OF SH. RAVINDER DUDEJA/ASJ/NW-03/ROHINI Session Case No. 137/09 State Vs. Nand Lal & Anr.
FIR No. 86/05PS: Model Town U/s: 323/324/341/34 IPC 15-01-2011 Order on Sentence (1) Arguments have been heard on the point of quantum of sentence from Ld. Defence counsel. It is stated that convicts are first offenders and not involved in any other criminal case. It is further submitted that convicts and the complainants are relatives of each other and the incident occurred due to dispute regarding a jhuggi and convicts have already left that jhuggi and the same is now in possession of complainant. It is further stated that convicts have three minor children who are dependent on them. Request has been made for release of convicts on probation.
(2) Admittedly, the complainant party and the convicts are relatives of each other. Admittedly, they were not having good relations with each other and were having some property dispute. There is nothing on record which may indicate the involvement of convicts in any other criminal case. The convicts have been facing trial since 2006. Their conduct during trial has been good. Considering the totality of facts and circumstances, in my opinion, this is a fit case where the convicts be released on probation. I, therefore, direct that both the convicts be released on probation of Contd.................2 State Vs. Nand Lal etc FIR No. 86/05 Page 11 -2- good conduct for one year on their entering into a bond of Rs. 10,000/- with a surety of like amount each. They shall appear and receive the sentence when called upon during such period of one year and in the meanwhile they shall keep peace and be of good behaviour. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(RAVINDER DUDEJA) Additional Session Judge/NW/ROHINI/DELHI.
Announced in open court
on 15-01-2011
State Vs. Nand Lal etc FIR No. 86/05 Page 12