Delhi District Court
State vs Jagbir on 24 March, 2015
1
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS
JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI
Sessions Case No.52/15
FIR No. 272/10
PS Darya Ganj
U.S 308 IPC
State Vs Jagbir
Unique ID No.02401R0477962011
State
Versus
Jagbir S/o Balbir Singh,
R/o Saleem Sar Mazra
PS Than District,
Sonipat, Haryana
Date of institution :20.10.2012
Date for reservation of judgment/conclusion
of Final Arguments :20.03.2015
Date of pronouncement of judgment :23.03.2015
JUDGMENT
1. Accused Jagbir S/o Balbir Singh was committed to the Court of Sessions to stand trial under Section 308 IPC for attempting to commit culpable homicide not amounting to murder of Mahesh Negi by causing grievous injuries on his abdomen with knife at about 9.30pm on 16.12.2010 outside Electrical room, MTNL Building, Delhi Gate.
CASE OF THE PROSECUTION
2. The facts of prosecution case as gathered from the first information statement (Ex.PW2/A) of Mukesh Kumar/complainant recorded in the afternoon of 17.12.2010, statement of injured /Mahesh Negi made u/s 161 Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 1/22 2 Cr.P.C recorded on 20.12.2010 and endorsement of HC Ishwar Singh are that a telephonic message from Central District, Central Room was received at 9.30 PM on 16.12.2010 at PS Darya Ganj that one person has been stabbed at Telephone Exchange, Delhi Gate. This information was recorded as DD No. 44 A which was sent to HC Ishwar Singh through Const. Manoj for necessary action. On receipt of DD No. 44 A, dated 16.12.2010 HC Ishwar Singh along with Const. Yogesh reached MTNL Office, Delhi Gate where they met Mukesh Kumar and recorded his first information statement (Ex.PW2/A) wherein he stated that he is working with Contractor of Nutech Electro System at MTNL Building , Delhi Gate. On 16.12.2010 he was on duty from 8.00 PM to 8.00 AM in the Electrical Room. One Padam Singh Khalasi also an employee was also present with him . At about 9.30 PM, he saw injured Mahesh Negi standing in the gallery. In the meantime, accused Jagbir Singh who was working as guard for the last 3-4 months in their office came there and started abusing and scuffling with injured/Mahesh Negi on the issue of some money transaction. Accused then caused injury on the abdomen of injured /Mahesh Negi with some sharp edged object due to which, he started bleeding. Mahesh Negi immediately called at 100 number and accused Jagbir Singh fled away from the spot. PCR had come to the spot and had removed Mahesh Negi to JPN Hospital. Thereafter, he went to sleep in the rest room and subsequently left for his home.
3. It is further the case of the prosecution that the treating doctor had declared injured Mahesh Negi "unfit for statement" vide MLC No.212290 on 16.12.2010. On the basis of the MLC and the first information statement of the complainant Mukesh Kumar, case FIR was registered against the accused u/s 324 IPC. During investigation, HC Ishwar Singh along with const.Yogesh apprehended the accused Jagbir Singh at the Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 2/22 3 instance of the complainant on 17.12.2010, whereafter the accused got recovered the knife which was allegedly used by the accused to stab the victim Mahesh Kumar Negi which was taken into possession. The accused was released on police bail as the same was a bailable offence. Thereafter HC Ishwar Singh obtained the result on the MLC of the injured whereby the nature of injuries were opined as grievous. Resultantly, Section 324 IPC was replaced with Section 326 IPC. The accused was again arrested and sent to judicial custody. The weapon of offence and the clothes of the injured Mahesh Negi were deposited with FSL. After completion of the investigation, charge sheet was filed u/s 326 IPC. However, vide order dated 08.10.2012, the learned MM observed that prima facie offence of Section 307 or 308 IPC is made out and committed the case to the Court of Sessions.
CHARGE
4. Charge under Section 308 IPC was framed by the predecessor of this Court on 21.11.2012 against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
5. Prosecution to prove its case, examined as many as 15 witnesses. Since PW 1 Mahesh Kumar Negi had been partly cross examined by the learned counsel for the accused on 25.02.2014, he moved an application u/s 311 Cr.P.C on 18.12.2014 which was allowed by the predecessor of this Court on the same day. The matter was thereafter transferred to this court on 13.02.2015 and accordingly PW 1 was further cross examined by the learned counsel for the accused on 13.02.2015.
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 3/22 4 VERSION OF THE ACCUSED
6. Statement of the accused was recorded under Section 313 Cr.P.C wherein he denied the prosecution's case in toto and stated on the day of incident Mahes Negi, Mukesh and Padam Singh were consuming liquor in the office in their room and that Mahesh and Mukesh came to him and asked some money for some more liquor. On his refusal they became angry and thereafter they continues in consuming liquor. Later on Mahesh, Mukesh and Padam Singh started scuffling with each other and after some time Mahesh Negi came back told that they had asked injuries to him. Accused also took the defence that injured, Mukesh and Padam used to consume liquor in the office and he used to object to the same and that after consulting , they implicated him in this case. Accused however, did not opt to lead evidence in defence.
7. I have heard the learned APP for the State and learned counsel for the accused persons and have gone through the record with utmost care.
MATERIAL WITNESSES
8. Mahesh Negi, victim of the assault by accused Jagbir Singh was examined as PW 1. He testified that on 16.12.2010, he was performing his duty at MTNL office, Power Room, Delhi Gate and his duty hours were from 8.00 pm to 8.00 AM. When the electrician was repairing a light in the office, the accused who was posted as private guard came to the office and asked him for some money. He told him that he was busy and asked the accused to go to the gate and perform his duty. Thereafter, the accused left the office abusing him. The accused returned back within Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 4/22 5 five minutes i.e at about 9.30 PM wrapped in a bed spread. When he enquired from him as to why he (accused) has come again, he inflicted a knife blow near his heart. After sustaining injury, he pressed his injury with his hand to stop blood and heard the accused uttering that he would be back with a gun. He immediately dialed 100 number whereafter the police officials reached at the spot and apprehended the accused. He was removed to the hospital. The accused left the office immediately after assaulting him with knife and at the time of the incident, Mukesh/PW2 was also performing his duties in his office.
9. PW 1 Mahesh Negi in his examination in chief failed to identify the alleged weapon of offence i.e knife. However, during his testimony he identified his blood stained clothes (Ex.P1)i.e. shirt, vest and two sweaters/jerseys correctly.
10. In his cross examination conducted on 25.02.2014, PW1 Mahesh Negi testified that on the day of the incident, he was on duty in the power room whereas Mukesh /PW2 and the electrician Padam Singh were repairing a light. The accused on several occasions prior to the incident also had asked for money and at times he used to give him about Rs.50/-, Rs.100/- in the presence of the permanent gate man namely Yadav. At times, he used to return money. He was categorical that before the date of the incident, he had cordial relations with the accused. On the day of the incident, he neither asked for a specific amount nor the purpose for his demand. When the accused had demanded money, he had told him that he was busy and had asked him to return to the gate and perform his duty but he had started abusing him and manhandling him. Thereafter, he had returned covered with a bed spread and had inflicted a knife blow near his heart. He pressed his injury with his hand and at that time, the Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 5/22 6 accused had threatened him that he would return with a gun. The police reached within five minutes of the incident. Mukesh Kumar/PW2 and Padam Singh were present in their room but they had bolted their room from inside due to the fear of the accused. He was sitting in a room when the police had come and the door of his room was open. He had not cried for any help or raised an alarm when the accused had stabbed him. He informed the police by dialing 100 from his office phone and had told the police that the accused Jagbir had given him a knife blow. He did not tell the police that the incident had taken place in the presence of Mukesh/PW2 and Padam Singh. The blood might have fallen on the ground as well as on the chair. In the lengthy cross examination conducted on 25.2.2014, nothing material or significant was brought on record, the injured Mahesh Negi has stood the test of cross examination. His testimony is fully natural and credible.
11. In his further cross examination conducted a year later on 13.02.2015 after application U/s 311 Cr.P.C. moved on 18.12.2014 by the counsel for accused was allowed, PW1/Mahesh Negi also testified that he had lost his consciousness for about half an hour but when the police removed him to the hospital and the doctor started his treatment, he was conscious. He had disclosed to the treating doctor that the accused Jagbir had stabbed him with a knife. He had also told the PCR officials that accused had stabbed him with a knife. Police met him next day after getting him admitted in the Irwin Hospital. He admitted that during the office hours, Receptionist sits at the counter and the working hours of the reception were from 9 am to 5 pm. There was no lock on the drawers at the reception. On the day of the incident, he and Mukesh Kumar/PW2 were on duty from 8.00 PM to 8.00 AM. He denied the suggestion that he , Mukesh and Padam used to consume alcohol. He further denied the Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 6/22 7 suggestion that on the day of the incident, he, Mukesh Kumar/PW2, Padam and 3-4 other colleagues of theirs were consuming alcohol in the office and that he had demanded money from accused Jagbir Singh to bring more liquor. He also denied the suggestion that when accused Jagbir Singh had refused to give money, he and his colleagues had gone to some other room where they had again started consuming alcohol. He further negated the suggestion that a scuffle took place between him, Mukesh Kumar, Padam and 3-4 colleagues outside the gate of the office and he received injuries in that scuffle. He also refuted the suggestion that when Mukesh Kumar/PW2 and Padam who were also under the influence of liquor came to know that he had sustained injuries, they fled from the spot to save themselves. He very vehemently denied the suggestion that as Mukesh Kumar/PW2 and Padam were his close friends, all three of them in collusion had falsely implicated the accused Jagbir. He also denied the suggestion that since the accused Jagbir had not stabbed him therefore, he had not named him to the officials of the PCR and to the treating doctor.
12. Statement of complainant Mukesh Kumar was also recorded on 25.2.2014. PW2 Mukesh Kumar testified that on 16.12.2010, he was performing his duty as Fire Operator at MTNL office, Delhi Gate and his duty hours were from 8.00 PM to 8.00 AM. At about 9.00/9.30 PM, some repair of a tube light was going on in the office . At that time, accused reached there and demanded some money from the injured Mahesh Negi/PW1. When Mahesh Negi/PW1 refused to give him money, hot words were exchanged between them. He and Padam Singh intervened and the matter was pacified between the accused and Mahesh Negi/PW1. Accused left the office and both he and Mahesh Negi/PW 1 went to their respective rooms.
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 7/22 8
13. PW 2/Mukesh Kumar further testified that after about ten minutes, he heard the cries of Mahesh Negi/PW1 shouting that he had been stabbed with a knife by the accused Jagbir. After hearing the noise, he and Padam Singh went to the room of Mahesh Negi/PW1 and saw blood oozing out from an injury near the heart of Mahesh Negi/PW1. Police was informed and on its arrival, Mahesh Negi/PW 1 was removed to the hospital. The police apprehended the accused and took him to police station. On the next day at about 10-11 AM, he was called to the Police Station where his first information statement (Ex.PW2/A) was recorded. The police recovered a knife from the reception of the MTNL office in his presence and he was informed by the police officials that the knife was the weapon of offence which had been used by the accused to stab PW1/Mahesh Negi.
14. PW 2 Mukesh Kumar during his testimony proved site plan (Ex.PW2/B), seizure memo of knife (Ex.PW2/C), sketch of the knife (Ex.PW2/D), disclosure statement of accused (Ex.PW2/E), pointing out memo(Ex.PW2/F), site plan of recovery of knife (Ex.PW2/G), arrest memo (Ex.PW2/H) and the personal search memo of accused (Ex.PW2/J). PW 2 also identified the knife (Ex.P2) as the weapon which was recovered by the police from the reception.
15. Since, PW 2/Mukesh Kumar had partly turned hostile, permission was given to learned APP for the State to cross examine him. In his cross examination by the learned APP for the State, he denied having seen the incident of stabbing. He testified that his signatures were obtained by the police on blank documents. He did not give any statement as recorded in Ex.PW2/A. He did not disclose to the police that it was accused Jagbir Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 8/22 9 Singh who had inflicted injuries in the stomach of Mahesh Negi/PW1 with a sharp object. He further denied that accused Jagbir Singh was apprehended at his instance on 17.12.2010 or that the knife (Ex.P2) was got recovered by accused Jagbir Singh from the reception counter in his presence.
16. In his cross examination by the learned counsel for the accused, he denied the entire sequence which led to the incident and he categorically stated that the police had obtained his signaures on blank documents on 16.12.2010 in his office. He also specifically testified that he was never called by the police to join investigation after the night of 16.12.2010.
FORMAL WITNESSES
17. PW 3 Ram Prasad, Manager, Telephone Exchange, Delhi Gate proved the original attendance register dated 16.12.2010 as Ex.PW3/A as per which, accused was working as Security Gunman in the office and his services were provided by Reach Security Service.
18. PW 5 C.P.Singh, Sub Divisional Engineer, MTNL proved the duty roaster (Ex.PW5/A) of injured Mahesh Negi as per which he was on duty from 8.00 PM to 8.00 AM on 16.12.201.
19. PW 6 Rajeev Sharma (AE) Electrical, MTNL proved the duty roaster (Ex.PW 6/A) of Mukesh, fire fighting operator as per which he was on duty from 8.00 PM to 8.00 AM on 16.12.2010.
20. PW 7 HC Sube Singh proved the case FIR and the endorsement on the rukka as Ex.PW7/A and Ex.PW7/B. Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 9/22 10
21. HC Ravinder Singh, MHC(M)Darya Ganj was examined as PW 8 who proved the entry at serial no. 1867 in register no.19 regarding deposit of the weapon of offence (knife) and personal search of accused as Ex.PW8/A. He also proved the entry at serial no.1876 in register no.19 as Ex.PW8/B, entry at serial no. 1867 as Ex.PW8/A.
22. PW9 HC Ashok Kumar deposed that on the instructions of MHC(M), he took two sealed pulandas along with sample seal vide RC No.83/21/2011 (Ex.PW9/A) and some documents for depositing the same at FSL Rohini. After depositing them at FSL, he gave the acknowledgment to the MHC(M)/PW8.
23. PW 10 Rajender Singh deposed that at about 9.30 PM on 16.12.2010, he received information from police Control Room with respect to an injured at MTNL Exchange. He immediately reached the spot and found Mahesh Negi/PW1 with an injury on his stomach and removed him to JPN Hospital.
MEDICO EVIDENCE.
24. PW 15 Dr. Ravinder Kumar, CMO LNJP Hospital testified that on 16.12.2010, injured Mahesh Negi was brought by ASI Rajender Singh/PW10 with the alleged history of physical assault near MTNL Office, Darya Ganj. The injured was examined by Dr. Jaswant under his supervision and he prepared the MLC No.212290 of injured/PW1 as Ex.PW14/A. After primary treatment, patient was admitted in Surgery Emergency for further treatment and management.
25. PW 14 Dr. Rajandeep Singh Bali, Senior Resident, Surgery, LNJP Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 10/22 11 Hospital proved the opinion regarding injury given by Dr.Khursheed on Ex.PW14/A (MLC of PW-1/Mahesh Negi).
WITNESSES OF INVESTIGATION
26. Ishwar Singh/Ist IO was examined as PW 13 who testified that at about 9.30 PM on 16.12.2010 on receipt of DD No.44 A (Ex.PW13/A) , he along with Const. Yogesh/PW11 went to MTNL office, Delhi Gate where he did not find any eye witness. After leaving Const. Yogesh/PW11 at the spot, he reached JPN Hospital and obtained the MLC of injured/Mahesh Negi/PW1 wherein the doctor opined him not fit for statement. He did not find any eye witness in the hospital. On 17.12.2010, he again visited the office of MTNL along with Const. Yogesh/PW11. On enquiry, he met eye witness Mukesh Kumar/PW2 and recorded his statement (Ex.PW2/A). He then prepared rukka and handed over the same to Const.Yogesh for getting the case FIR registered.
27. PW 13 further testified that after registration of the case FIR, Const. Yogesh/PW11 came to the spot and handed over copy of the FIR (Ex 7/A.) and rukka (Ex.PW.7/B) to him. He prepared the site plan (Ex.PW2/B) and also arrested accused Jagbir Singh vide arrest memo Ex.PW2/H at the instance of the complainant Mukesh Kumar/PW2. Personal search of the accused was conduced vide memo Ex. PW2/J. Disclosure statement (Ex.PW2/E) of accused was also recorded, on the basis of which, one small knife was recovered from the counter of the reception of MTNL office at the instance of accused Jagbir Singh. Sketch of the knife (Ex.PW2/D) was prepared. Knife was sealed with the seal of IS and seized vide memo Ex.PW2/C after preparing the pullanda. He also prepared the site plan of the place of recovery (Ex.PW2/G).
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 11/22 12
28. PW 13 ASI Ishwar Singh also deposed that on 20.12.2010, he recorded the statement of the injured Mahesh Negi. On 22.12.2010, he seized sealed parcel of clothes of injured Nahesh Negi vide seizure memo Ex. PW 11/A in presence of Const.Yogesh/PW11. On 29.12.2010, he deposited the MLC of injured for the final opinion with regard to nature of injury and on 10.02.2011, obtained the MLC of injured Mahesh Negi with the opinion of the doctor that the injury was grievous in nature. Section 326 IPC was therefore added and he handed over the case file to MHC(R) for further directions of the SHO. He also identified the knife i.e weapon of offence recovered at the instance of accused as as Ex.P2.
29. PW 11 Const. Yogesh corroborated the entire version of PW 13 ASI Ishwar Singh regarding the investigation conducted by PW13/Ist IO/ASI Ishwar Singh as he had accompanied the first IO /PW13 during investigation.
30. PW 4 SI Sumit Kumar, the second IO testified that on 21.02.2011, upon the directions of the SHO, further investigation was assigned to him. On 25.03.2011, he got sent the exhibits to FSL, Rohini for analysis through HC Ashok /PW9. On the basis of the opinion given by the Doctor on the MLC of the injured PW1, Section 326 IPC was added and accused was again arrested u/s 326 IPC. He prepared the charge sheet and filed the same in the Court. After obtaining FSL report, he filed the supplementary charge sheet.
31. Const. Sanjay Singh joined the investigation with the second IO on 28.04.2011 and was examined as PW12. He witnessed the arrest and the personal search of the accused and he proved arrest memo and personal Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 12/22 13 search memo as Ex.PW12/A and Ex.PW12/B respectively.
APPRECIATION OF EVIDENCE INCIDENT
32. The entire case of the prosecution hinges upon the testimonies of the victim /PW1/Mahesh Negi and Mukesh Kumar/PW2 who was claimed by the prosecution to be the eye witness to the incident. The evidence of PW1/Mahesh Negi shows that he slightly improvised on his previous statement u/s 161 Cr.P.C with which he was confronted by the learned counsel for the accused. As per him, the accused came to him twice and it was when the accused came to him the second time, he was covered with a bed spread and he had inflicted a knife blow near his heart. In his previous statement u/s 161 Cr.P.C (Ex.PW1/DA) he had categorically stated that the accused had assaulted him on his abdomen with a sharp object. He had not specified the weapon of offence but in his testimony, he categorically stated that the accused had attacked him with a knife. Similarly, in his statement u/s 161 Cr.P.C(Ex.PW1/DA) with which, he was confronted he had stated that Mukesh Kumar/PW2 had heard the commotion and had come out of his room , subsequent to which he had seen the incident of stabbing whereas in his testimony, he deposed that neither Mukesh Kumar/PW2 nor Padam Singh had seen the incident as they had bolted their room from inside due to fear of the accused. These improvements do not in any manner shake the credibility of the injured that he was stabbed in his abdomen near the heart by the accused with whom he had cordial relations till then.
33. PW 2 /Mukesh Kumar who was the alleged eye witness had turned hostile and denied having witnessed the incident. In his examination in chief he testified that immediately after the incident he had heard the cries of Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 13/22 14 Mahesh Negi/PW1 uttering that accused Jagbir had stabbed him with a knife. After which, he and Padam Singh saw Mahesh Negi/PW1 bleeding from his abdomen. However, in his cross examination, he denied having heard Mahesh Negi/PW1 uttering that accused Jagbir Singh had stabbed him and that after hearing the screams of Mahesh Negi, he and Padam Singh had come out their room and seen him bleeding.
34. It was very vehemently urged by learned counsel for the accused that since , PW-2/Mukesh Kumar did not support the case of the prosecution and PW-1/Mahesh Negi improved upon his statement, no reliance can be placed on their testimonies.
35. As regards the testimony of PW2/Mahesh Kumar. I am in agreement with the contention of the learned counsel for the accused that it will not be safe to convict the accused on the basis of his testimony. But , so far as the testimony of PW1 /Mahesh Negi is concerned, there is no force in the argument of the learned counsel for the accused. Despite the fact that PW2 Mukesh Kumar turned hostile, PW1 stuck to his guns and deposed that it was accused Jagbir Singh who had stabbed him. So far as the improvisations by PW-1/Mahesh Negi in his testimony are concerned, the Court can not lose sight of the fact that the incident took place on 16.12.2010 and the testimony of the victim Mahesh Negi/PW1 was recorded on 25.02.2014 and then again he was cross examined 13.02.2015 when he was recalled for his further cross examination on the basis of application U/s 311 Cr.P.C allowed on 18.12.2014. The statement of PW1 was recorded after a considerable lapse of time and hence, PW-1 can not be expected to remember each and every minute detail of the incident. In case titled as State of Andhra Pradesh Vs Kanda Gopaludu 2005 (3) Apex Crl. 705 (SC) while dealing with the Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 14/22 15 case wherein statement of witness was recorded after four years of incidence. Hon'ble Supreme Court observed that:
Every discrepancy in the statement of witness can not be treated as fatal to prosecution. The discrepancy which is not fatal to the prosecution does not create any infirmity. Human memories are apt to blur with the passage of time and after a lapse of almost four years, it can not be expected that a witness can depose with mathematical precision."
In the instant case as well the testimony of the injured PW1/Mahesh Negi was recorded after a duration of four years . But, despite the alleged improvements in his testimony, he remained consistent regarding the basic fact that it was accused Jagbir who had stabbed him.
36. It is not the case of the accused Jagbir that there was any enmity between him and the injured Mahesh Negi. Even no suggestion was put to PW-1/Mahesh Negi to the effect that PW 1 had some enmity with the accused Jagbir Singh and for that reason, he was falsely implicating him.
Rather, PW 1/Mahesh Negi categorically testified that before the incident took place, he and accused had cordial relations. PW 1 received very serious injuries in his abdomen which if had not been treated in time would have surely led to his death. Thus, when PW1 sustained grievous injuries to the extent that he remained admitted in the hospital from 16.12.2010 to 20.12.2010, he had no reason to shield the actual culprit and implicate accused Jagbir Singh falsely. I hold him as fully reliable and credible witness.
37. It was also contended by learned counsel for the accused that the fact that injured Mahesh Negi/PW1 gave the alleged history of assault as "physical assault near MTNL office" points at the falsehood of the case of the prosecution that the incident took place inside the MTNL office. It was further argued that as suggested by him to PW 1 Mahesh Negi that he Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 15/22 16 received injuries in a scuffle which took place between him , Mukesh Kumar, Padam Singh and 3-4 colleagues outside the MTNL office on the date of the incident was the truth and the fact that PW 1 Mahesh Negi mentioned in his MLC "physical assault near MTNL office" fortifies that fact. Also, the fact that no blood was found in the MTNL office i.e. the alleged place of the incident supports the case of the accused.
38. There is no merit in this argument of the learned counsel for the accused as the first call made by PW1/Mahesh Negi at 100 number which was forwarded to DO/CDCR ( Center District Control Room) and recorded as DD no. 44 A (Ex.PW13/A) dated 16.12.2010 PS Darya Ganj very categorically records that one person has been stabbed with knife in Delhi Gate Telephone Exchange. Regarding , blood having not been found in the MTNL office , it is significant that the incident took place on16.12.2010 during the peak winter season and the injured/PW1 /Mahesh Negi was clad in winter clothing i.e shirt, vest and two sweaters/jerseys. His clothes were soaked with blood and immediately after the incident, he was removed to JPN Hospital by PW 10, SI Rajender Singh which also finds mention in the MLC Ex.PW14/A of the injured Mahesh Negi, hence there was no possibility of any blood spilling on the floor inside the MTNL office.
39. Moreover, inspite of the fact that PW2 Mukesh Kumar turned hostile, no suggestion was given to him to the effect that a scuffle had taken place outside the MTNL office between him , Padam Singh and injured Mahesh Negi during which PW-1 Mahesh Negi had sustained injuries
40. Another argument which was raised by the learned counsel for the accused was that injured Mahesh Negi/PW 1 was under the influence of Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 16/22 17 alcohol at the time of the incident and the possibility that he could have fallen near the reception table inside the MTNL office and sustained injuries in his abdomen due to some sharp edged object protruding from the table at reception area can not be ruled out.
41. There is no teeth in this argument as well as consumption of alcohol can not be equated to having been under influence of alcohol. Otherwise also, as discussed above,PW-1 remained consistent regarding the way he sustained the serious injury in his abdomen.
42. The other contentious issue which was raised by learned counsel for the accused was the inconsistency regarding the date on which the statement of PW 2 Mukesh Kumar was recorded pursuant to which the accused was arrested, interrogated and alleged weapon of offence recovered. It was argued by learned counsel for the accused that as per the deposition of PW 11 Const. Yogesh, the entire proceeding took place on 16.12.2010 , whereas according to PW 13/IO ASI Ishwar Singh , statement of PW 2 Mukesh Kumar and the subsequent proceedings were conducted on 17.12.2012. This contradiction in their statements indicates that the proceedings were conducted sitting in the police station and not as per law and the accused was falsely implicated.
43. In my opinion, mere lapse on the part of PW-11 Const.Yogesh not to depose the correct date can not be the reason to discard the case of the prosecution. The date of the first information statement Ex. PW2/A, the arrest memo Ex.PW2/H, disclosure statement Ex. Ex.PW2/E, personal search memo Ex.PW2/J , seizure memo of knife Ex.PW2/C, sketch of knife Ex.PW2/D pertaining to the accused are all dated 17.12.2010 and shows that all the aforesaid proceedings were conducted on 17.12.2010.
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 17/22 18 WEAPON OF OFFENCE
44. It is the case of the prosecution that PW1/Mahesh Negi was stabbed by accused Jagbir Singh with the knife (Ex.P2) which was got recovered by him from an unlocked drawer at the reception of MTNL office. However, the bare perusal of the statement of PW-1/Mahesh Negi u/s 161 Cr.P.C (Ex.PW1/DA) shows that he had categorically stated that he was stabbed by accused Jagbir Singh with some sharp edged object. He had never specified that the said sharp edged object was a knife. Also, PW 11 Const. Yogesh and PW 13 /IO/ASI Ishwar Singh have testified that they had recovered the weapon of offence i.e knife (Ex.P2) from the reception counter of the MTNL office at the instance of accused Jagbir Singh. In their cross examination, both PW-11 and PW 13 admitted that there was blood stain on the recovered knife and that the said knife was deposited with the MHC(M) HC Ravinder Singh on 17.12.2010 itself i.e the day when it was recovered after which it was sent to FSL Rohini for its forensic examination. Significantly, the FSL report dated 05.01.2012 shows that it had received the weapon of offence i.e knife having a few brown stains and on analysis, blood was detected on it. But on examination of the said knife, no conclusive result could be obtained. Considering the fact that the knife Ex.P2 was sent to FSL was blood stained and according to PW11Const.Yogesh and PW 13 IO/ASI Ishwar Singh, the knife which was recovered did not have any blood stains.Also the fact, that PW1/Mahesh Negi did not know that the weapon of offence with which he was attacked with knife, it will not be safe to conclude that the alleged recovered knife (Ex.P2) was recovered at the instance of the accused.
45. Be that as it may, there is no doubt that PW1/Mahesh Negi was stabbed with a sharp edged object which could have possibly been a knife. The clothes of victim PW1/Mahesh Negi which were sent for forensic Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 18/22 19 examination fortifies the fact that the victim Mahesh Negi was stabbed by a sharp edged object. On thorough examination, it was opined by the FSL expert that the cuts on the clothes (shirt, vest and two sweaters/jerseys) of Mahesh Negi could have been caused by a sharp edged object like knife.
46. The medical evidence also supports and corroborates the fact that Mahesh Negi/PW1 was stabbed by some sharp object at 9.30 PM on 16.12.2010. The MLC (Ex.PW14/A) of Mahesh Negi/PW1 shows the diagram of the place at which PW-1 Mahesh Negi sustained the injury . The said diagram very categorically mentions that PW 1 Mahesh Negi received stab wound ad-measuring 1.5x0.5 cms.
47. So far as the nature of injury is concerned the MLC Ex.PW14/A reveals that he was brought by ASI Rajender Singh at about 9.48 PM and he sustained the following injuries:
(i)1.0 cms long stab wound present over left hypochondrium
(ii)1.5 cms x 1.5 cms breach in gastrocolic omentum He was declared unfit for statement on 16.12.2010 by Dr.Khursheed SR and had to undergo Exploratory Laprotomy which is a major surgery. After remaining in the hospital from 16.12.2010 to 20.12.2010, he was discharged on 20.12.2010. The nature of injury suffered by him was opined to be grievous.
CONCLUSION
48. Taking into account, the evidence which has come on record, I have no hesitation to hold that prosecution has succeeded in proving the guilt of the accused Jagbir Singh beyond reasonable doubt u/s 308 IPC for attempt to commit culpable homicide not amounting to murder of Mahesh Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 19/22 20 Negi by inflicting grievous injury on his abdomen with a sharp edged object on 16.12.2010. Hence, I have no hesitation in holding accused Jagbir Singh guilty of offence u/s 308 IPC. Accordingly, accused Jagbir Singh stands convicted for commission of offence punishable u/s 308 IPC.
Dictated and Announced in open (Hemani Malhotra)
Court on 23.3.2015 Addl. Sessions Judge-05
(Central) Tis Hazari Courts
Delhi
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 20/22
21
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI Sessions Case No.52/15 FIR No. 272/10 PS Darya Ganj U.S 308 IPC State Vs Jagbir Unique ID No.02401R0477962011 State Versus Jagbir S/o Balbir Singh, R/o Saleem Sar Mazra PS Than District, Sonipat, Haryana ORDER ON SENTENCE
1. Accused Jagbir S/o Balbir Singh was found guilty for commission of offence punishable U/s 308 IPC and he was convicted vide judgment dated 23.03.2015.
2. I have heard Learned Addl. PP for the State and Learned Counsel for convict. I have also carefully perused the entire record.
3. It is submitted on behalf of convict that lenient view be taken on the point of sentence on the ground that convict is an Ex-Army Man, 53 years old and he is only bread earner. He has college going children and old and ailing parents who are residing with him. It is further submitted that he is not a previous convict and that earlier also he remained in J/c for a period of about 11 days i.e. w.e.f. 28.4.2011 to 09.05.2011. It is further urged on behalf of convict that he may be given an opportunity to reform himself.
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 21/22 22
4. Per contra it is argued by Learned Addl. PP for the State that the offence involved in the present case does not deserve any leniency as the incident did not occur on the spur of the moment and it was premeditated. The convict was carrying a sharp edged weapon with him at the time of the incident.
5. Considering the nature of offence and the fact that injured sustained grievous injuries at the hands of convict, I am of the opinion that convict does not deserve any leniency especially when the convict is an Ex-Army Man who was duty bound to maintain law and order in the society. Accordingly convict is sentenced to undergo RI for four years . However, in view of the fact that convict is in J/c w.e.f. 28.4.2011 to 09.05.2011 benefit of section 428 Cr.P.C. be given to convict. Warrants be prepared accordingly and file be consigned to record room.
Dictated and Announced in open (Hemani Malhotra)
Court on: 24.03.2015 Addl. Sessions Judge-05
(Central) Tis Hazari Courts
Delhi
Judgment in case FIR No.272/10 PS Darya Ganj State Versus Jagbir 22/22