Delhi District Court
State vs Sonu @ Tinku S/O Late Sh. Raj Pal on 3 February, 2017
IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI SC No. 441/2016 (Old No. 4/15) FIR No. 619/14 PS M.S. Park U/s 186/333/353/307 IPC State Versus Sonu @ Tinku S/o Late Sh. Raj Pal R/o H.No. A-1/3831, Gali No. 6, Bhagwanpur Khera, Shahdara, Delhi. Date of Institution : 04.02.2015 Date of Arguments : 02.02.2017 Date of Judgment : 03.02.2017 JUDGMENT
Brief Facts of the case of prosecution:
1. On 22.10.2014 on the receipt of DD No. 38-A dated 22.10.2014, SI Ashwani Kumar, P.S. M. S. Park ( CW-19 & examined as PW-9) alongwith constable Mahesh reached at Bhagwanpur Khera, Gali no. 6.
There they found constable Pradeep who caught hold of one person namely Sonu @ Tinku and also found blood on the ground. During investigation constable Pradeep intimated that the accused Sonu @ Tinku had assaulted ASI Jagdish Narayan. The said injured had left for GTB Hospital for treatment. Thereafter, SI Ashwani Kumar called Crime Team at the spot. Constable Pradeep was left at the spot for guarding the scene of occurrence. SI Ashwani Kumar alongwith constable Mahesh and accused Sonu @ Tinku went to GTB Hospital where SI Ashwani Kumar found ASI Jagdish Narayan admitted. SI Ashwani Kumar had collected the MLC of injured. At that time injured ASI Jagdish Narayan was fit for giving his statement. PW-9 Ashwani Kumar had recorded his SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 1 of 15 statement and based on this he prepared ruqqa and got the case registered through constable Pradeep. ASI Ram Singh had recorded the FIR and sent the same to SI Ashwani Kumar. Further investigation of this case was conducted by SI Rajiv Kumar who collected the broken glass bottle used in this incident and also seized the blood stained shirt of accused Sonu @ Tinku. SI Rajiv Kumar also seized the photocopy of I- Card of injured ASI Jagdish Narayan and also collected the medical documents of injured. Thereafter the accused Sonu @ Tinku was arrested in this case. After completion of investigation the charge sheet was filed by SI Rajiv Kumar.
2. The Ld. MM vide order dated 30.01.2015 had committed the matter to this court upon the charge sheet having been filed after supplying copies to the accused.
3. My Ld. Predecessor had framed the charges against the accused for the offences u/s 186, 353, 333 and 307 IPC on 26.03.2015. The accused did not plead guilty and claimed trial. The accused is provided the legal assistance u/s 304 of Cr.P.C. by my Ld. Predecessor by an order dated 26.03.2015. One advocate by name Kamal Anand was appointed as amicus curiae who is substituted by the present amicus curiae Sh. Asheesh Kumar.
4. In order to drive home the guilt of the accused, the prosecution has examined the following witnesses and got marked the documents as under :
PW-1 ASI Ram Singh Ranga - marked Ex. PW1/A to Ex. PW1/D (rojnamcha, ruqqa, endorsement, FIR and the certificate u/s 65B of Evidence Act).
PW-2 HC Dharamvir - marked Ex. PW2/A another DD entry.
PW-3 Constable Virender Singh - proved Ex. PW3/A seizure SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 2 of 15 memo.
PW-4 SI Jagdish Narayan - injured/victim - proved his statement Ex. PW4/A, his I-Card as Ex. PW4/B, medical documents at Ex. PW4/C - examination chief deferred.
PW-5 SI E.S. Yadav - Incharge, Crime Team proved his report Ex. PW5/A. PW-6 HC Rajiv Kumar - who is Malkana Head Clerk produced the material object i.e. broken glass bottle and the police uniform of the injured having sent the articles for FSL examination and such custody ad transitory documents under which the material objects were sent at Ex. PW6/A to Ex. PW6/C. PW-7 Constable Manoj - who visited the spot immediately after the crime.
PW-8 HC Shyam Lal - photographer of the Crime Team and took six photographs Ex PW8/A-1 to Ex. PW8/A-6 and proved the negatives at Ex. PW8/B. PW-9 SI Ashwani Kumar - the IO partly examined.
5. The matter was kept for further examination of the prosecution witnesses on 02.02.2017. The State has failed to serve the remaining witnesses and none appeared. Further granting of the time to the prosecution is opposed by the ld. AC appearing for the accused. He submits that the same amounts to denial of fundamental rights. Heard on the aspect of granting time to the prosecution. By a separate order, the PE is closed.
6. It is felt necessary to incorporate the reasons for closing the PE in this judgment also as under:
The entire charge sheet and the documentary evidence enclosed with the charge sheet are perused. The accused is arrested in this case on 23.10.2014. Since then he is in judicial custody. There are certain SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 3 of 15 directions by the Hon'ble Supreme Court for fair and speedy trial which is recognized as one of the fundamental rights. Furthermore the documentary evidence enclosed with the charge sheet namely the initial MLC of the victim ASI Jagdish Narayan issued by the GTB Hospital had revealed that "as per the surgery notes patient is absconded so final opinion cannot be given" which is signed by the Sr. Resident on 10.11.2014 not disclosing the nature of injuries at the initial stage. The same is sought to be supplemented by producing another opinion which disclosed that injuries as grievous in nature certified by the Max Super Specialty Hospital dated 22.11.2014. The patient - victim had absconded from the treatment at GTB Hospital. He had not obtained the permission of the doctors there. He took treatment privately. No permission is also obtained by the IO for him to get shifted to private hospital. However, the opinion of private hospital is made part of the charge sheet. The said opinion thus gives room to doubt and after looking into the genesis of the case and the attendant circumstances in which the accused was found loitering on the road, unable to answer the questions of police due to intoxication, this court is of the opinion that prolonging the trial by giving opportunities would frustrate the fundamental rights of accused. In this regard it is pertinent to take note of the observations of the Hon'ble Supreme Court in Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar AIR 1979 1369 where it is observed that the State cannot avoid its constitutional obligation to provide speedy trial to the accused. In Abdul Rehman Antulay Vs. R.S. Nayak, AIR 1992 SC 170, it is well settled that right to speedy trial in all criminal prosecutions is an inalienable right under Article 212 of the Constitution. This right is applicable not only to actual proceedings in court but also includes within its sweep the police proceedings as well". It is not confined to any SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 4 of 15 particular category of cases. Such principles are also laid down Raj Deo Sharma vs. State of Bihar decided on 08.10.1998 and also in Sajjan Kumar vs. CBI decided on 20.09.2010 by Hon'ble Supreme Court.
Hence, considering the above principles, prolonging the trial at the request of the prosecution would prejudice the constitutional rights of the accused. Further more, the entire charge sheet is perused with regard to the sustainability of the charges for the major offences with the available material produced alongwith the charge sheet. Keeping in view of such material available on record and particularly the victim having absconded from treatment leading to a situation where the doctors were unable to opine with regard to the nature of injuries, a situation of doubt arises. Further, the victim had not taken permission from the G.T.B. Hospital where he was initially treated to be treated by a private hospital. In this context, despite there being opinion obtained from the private hospital, the nature of injuries would be under a cloud of doubt even if the other witnesses are ordered to be summoned and examined. In this peculiar background of the facts of the case and considering the balance of justice in maintaining the rights of speedy trial and also to adjudicate the charges framed and in the ends of justice the PE is closed. After, thus closing the prosecution evidence, statement of accused u/s 313 of the Code of Cr.P.C. was recorded.
7. Heard the Ld. Addl. PP and Ld. Counsel/Amicus curiae for the accused. Perused the entire material available on record. The allegations in the charge sheet are that the accused has committed the offences u/s 186, 307, 333 and 353 of IPC. Accused is charged for all the offences.
Contentions of the ld. Addl. P.P.
8. It is argued by the ld. Addl. PP for the State that the testimony of SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 5 of 15 PW-4 who is the star witness of the entire event and the government servant working as sub inspector with P.S. M.S. Park would clearly establish the guilt of the accused. He submits that the testimony of PW-4 itself is not controverted in view of the accused having failed to elicit anything in cross examination to rebut the say of PW-4. It is the contention of the Ld. Addl. P.P. that the accused while explaining the circumstances appearing against him in the statement u/s 313 of Cr.P.C. clearly admits that he was under intoxication and therefore, nothing more is required in corroboration of the version of the eye witness-cum- victim. It is submitted that the evidence of PW-4 cannot be thrown into the wind in view of the other corroborative evidence adduced in this case alongwith the documentary evidence. He prays for conviction on all the counts. Contentions of the Defence.
9. On the other hand, the ld. Amicus curie submits that the accused cannot be convicted since he has lost his conscious while under intoxication and that there is no material to convict the accused. He submits that section 85 of IPC which is a general exception provided under law would come to the aid of the accused and therefore, he prays that the accused be acquitted on the ground of benefit of doubt and considering section 85 of IPC.
10. In the backdrop of the rival submissions and further considering the available material evidence on record, this court has to find out the complicity of the accused for the offences charged against him, for which the following discussion is made elaborately as here under:
The Applicability of Section 85 of IPC
11. Though the intoxication and incapability of a person in knowing the nature of the act under intoxication is provided as a general defence, section 85 of IPC reads as under:
SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 6 of 15"85. Act of a person incapable of judgment by reason of intoxication caused against his will.- Nothing is an offence which is done by a persons who at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
12. The voluntary drunkenness cannot be an excuse for commission of offence. The accused in his replies U/s 313 of Cr.P.C. did not say that he was administered with intoxicating drugs without his knowledge and against his will. He only stated that he was under intoxication. Therefore, the contentions of the defence cannot be taken as a general exception to purge the complicity of the accused in the charges framed against him. Offences u/s 186 & 353 of IPC- complicity thereof.
13. The offence u/s 186 of IPC is caused by any person who voluntarily obstructs any public servant in discharge of such official duties/ public functions. Such offence is punishable for a term which may extend to 3 months or with fine which may extend to a sum of Rs. 500/- or with both.
14. The offence u/s 353 of IPC is almost similar. It shows that if some criminal course or assault is made by anyone to deter the public servant from discharging his official duties, such person is liable to undergo the imprisonment for a term which may extend two years or with fine or with both. Both these offences are taken up together for adjudication since both are inter related.
15. The charge against the accused is that on 22.10.2014 at 10.00 p.m. at Gali No.6, Bhagwanpur Khera, Shahdara,the accused had voluntarily obstructed ASI Jagdish Narayan while he was discharging the public duties in the capacity in ASI. To drive home the above charges, the State SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 7 of 15 has examined PW-4 who deposed that on the said date and place, he was under emergency duty. At about, 9.53 p.m, on 22.10.2014, he went to the spot on receiving some information that there was a quarrel. He was accompanied by Ct. Pradeep. He found one person wandering in suspicious circumstances and upon enquiry, such person replied him that the PW-4 does not know him having several cases and he does not require any body's permission to be on the road and if the official wanted to work safely he should leave then and there.
16. Upon such reply coming from the person accosted, PW-4 tried to know his name and address. On such inquiry, it is deposed that the said person picked up a broken glass bottle lying on the street and attacked PW-4. He attacked him on the right thigh, right side of the chest near neck. Ct. Pradeep ( CW-9 not examined) who accompanied PW-4 apprehended the attacker. HC Yogender and Ct. Manoj, who were at a distance in the same area came to the spot and the public also gathered. The public had beaten up the said person. PW-4 had further deposed that later he came to know that the name of the attacker as Sonu @ Tinku
- the accused herein. PW-4 Jagdish Narayan went to the G.T.B. Hospital where his statement was recorded by SI Ashwani Kumar. He also proved Ex. PW-4/A his statement.
17. For the purposes of finding out whether there was any obstruction by the accused in discharge of the public duties by PW-4, the statement of the victim assumes significance. The accused is identified by PW-4 in the court. The accused in his statement u/s 313 of Cr.P.C. does not dispute his presence at the spot and that of the presence of PW-4 alongwith the police officials. In his reply to the circumstances appearing against him at the question no. 1 u/s 313 of Cr.P.C., it is replied that he was present very much and that he was under intoxication, though he had SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 8 of 15 alleged that the reply by him to the police after accosting and the attack as false. The statement of PW-4 that by uttering " Mere bare me tum Jante Nahi Ho or Mere upper pahele bhi Mukdme hai. Mujhe kissi ki permission ki jarroorat nahi hai, agar apni jaan ki salamti chahte ho to yahan se chale jao" is to be understood in the context of PW-4 having sustained injuries which is proved by the oral testimony of PW-4.
18. The prosecution had also examined PW-2 in corroboration of the presence of PW-4 on the spot by examining PW-2 HC Dharmaveer who had proved Ex. PW2/B the rojnamcha wherein D.D. No. 36A is reduced to writing authorizing PW-4- Jagdish Narayan and Ct. Pradeep to visit the spot to find out the veracity of a reported quarrel that took place in Gali no.6, Bhagwanpur Khera. Therefore, the presence of the victim at the spot in discharge of his official duties cannot be doubted. Further more, the aspect of PW-4 having sustained injuries is proved by the testimony of PW-1 ASI Ram Singh who deposed that he received an information on the intervening night of 22/23.10.2014 around 12.10 a.m. that PW-4 was admitted at G.T. B. Hospital as reported to him by the duty constable Virender posted at G.T. B. Hospital. The said information is at Ex. PW1/A. Thereafter, around 12.20 a.m., he had made endorsement on the rukka at Ex. PW1/B and he had also proved FIR at Ex.PW1/C.
19. The cross examination by the accused of PW-1 does not shake the testimony and there is nothing to discredit this witness in the cross examination.
20. PW-3 Ct. Virender Singh deposed that he is the duty constable at G.T.B. Hospital and that ASI Jagdish Narayan was admitted for injuries and the MLC was prepared. He collected the MLC. He also testifies that PW-4 was brought by HC Yogender. This witness had also collected the SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 9 of 15 MLC and had witnessed the Doctor taking the uniform of ASI Jagdish Narayan and parceling it. The same was handed by PW-3 to SI Rajeev Kumar who prepared the seizure memo at Ex. PW3/A. The cross examination by the accused is perused. The aspect of this witness having not spoken with the injured ASI Jagdish Narayan as elicited cannot discredit this witness. The cross examination is not on the point to discredit the presence of the injured in the hospital for treatment and it is not demolished in the cross examination that PW-3 was not present in the hospital. Hence, this witness is reliable to believe facts he deposed.
21. The testimony of PW-7 also is of much significance. He deposed that on 22.10.2014 while he was on patrolling duty, he met Ct. Yogender Singh and both of them had heard loud noise from Bhagwanpur Khera. PW-7 alongwith HC Yogender went there and found a crowd. Among the crowd, he testified that he saw PW-4 in injured condition alongwith Ct. Pradeep. He also found that certain persons were assaulting an unknown person held by Ct. Pradeep. PW-7 later came to know that the said unknown person is the present accused. The identity of the accused is corroborated by the testimony of PW-7.
22. This aspect is further corroborated by the evidence of SI Ashwani Kumar, who is examined as PW-9. It is sworn by PW-9 that while he was posted on the date of incident at around 10.00 p.m. he received D.D. No. 38-A. PW-9 reached alongwith Ct. Mahesh to the spot where he had seen Ct. Pradeep holding the accused. It was told by Ct. Pradeep to PW-9 that the accused had assaulted ASI Jagdish Narayan, who went to G.T.B. Hospital for treatment. He had proved Ex. PW4/A and he prepared the rukka at Ex. PW9/A. This witness is not cross examined by the accused.
23. From the above evidence available on record and further considering the testimony of PW-4 which is unrebutted, the presence of SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 10 of 15 the accused at the spot and the presence of PW-4 discharging his official functions as the police official is very much proved on record. Further more, the conduct of the accused in not answering to the queries by the police official and further attacking him is proved on record which is enough to hold that the accused had caused obstruction in discharge of the public functions by PW-4 who is a public servant by use of criminal force. Hence, this court has no hesitation to hold that the accused is guilty of the offence u/s 186 & 353 of IPC.
Of Section 307 of IPC:
24. Accused is charged for attempt to murder. The allegations are apart from obstructing the discharge of official functions by PW-4, the accused is charged for having caused injuries on the person of PW-4 ASI Jagdish Narayan with a broken bottle and that PW-4 had sustained injuries in the attack on his neck and chest. It is further charged that the said injuries were caused intentionally and with knowledge that if such injuries resulted in the death of the injured, the same would have amounted to the offence of murder.
25. The necessary ingredients for the offence u/s 307 of IPC are that there shall be an intention and knowledge on the part of the accused. The same will be always is a question of fact and not one of law as held in Vasant Virthu Jhadav Vs. State of Maharashtra, 1997 ( 2) Crimes 539 Bombay and also as held by the Hon'ble Supreme Court in State of Haryana Vs. Sukhvir Singh AIR 1998 SC 2127. No doubt, it is not necessary that the injury should have been inflicted and the nature of injuries also become immaterial.
26. In the instant case, the presence of the accused on the spot and obstructing the official functions of PW-4 is already held as proved while discussing the charges under section 186 & 353 of IPC. It is the further SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 11 of 15 case of the prosecution that the accused herein had attacked the PW-4 with such an intention or knowledge or under such circumstances that if the act of the accused had resulted in the death of PW-4, accused would have been held guilty of murder. In order to gather the intention or knowledge on the part of the accused, the attendant circumstances proved on record is to be considered in the right perspective.
27. From the version of the prosecution, no previous enmity or the animosity between the accused and injured PW-4 can be gathered. For the purposes of ascertaining the intention or knowledge in causing the injuries on the person of PW-4, the genesis of the case is to be understood. The background in which the charges spring from are that the official at P.S. M. S. Park Delhi were alerted of some disturbance in the Bhagwanpur Khera area on the date of incident. PW-4 in the capacity of the police official to bring the law and order situation into control visited the spot. According to his testimony, he reached the spot pursuant to the instructions under D.D. 36-A for discharge of his duties alongwith Ct. Pradeep. He found only one person standing in the suspicious circumstances. It is not the case of PW-4 that such person who was later identified as the present accused was armed with any weapons. He only uttered. " Mere bare me tum Jante Nahi Ho or Mere upper pahele bhi Mukdme hai. Mujhe kissi ki permission ki jarroorat nahi hai, agar apni jaan ki salamti chahte ho to yahan se chale jao." Thereafter, PW-4 had enquired about the name and address of such person. The allegation is that the accused then picked up a broken a glass bottle and caused injuries on his right thigh. He also caused injuries on the left side of the chest. The MLC produced on record shows that the said ASI Jagdish Narayan was assaulted physically. The SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 12 of 15 MLC issued by G.T.B. hospital with serial No. 1121 dated 22.10.2014 shows that there is an incise wound on the right thigh. The incise injuries found on the right chest are 4x0.2 c.m., 3x.02 c.m. and 2x0.2 c.m. The injuries found on the right thigh are 4x.3 c.m. The said MLC bears a note that "as per the surgery notes, the patient had absconded and the doctors are unable to give a final opinion." The injured PW-4 in his testimony had not stated that the accused had an intention to make an attempt on the life of PW-4. The medical certificate is not proved on record. The injuries as depicted on the unproved MLC are not of any serious consequences. Further more, the accused in his reply to the questions put to him u/s 313 of Cr.P.C. had stated that he was not in his senses. The attendant circumstances do not put forth a case of the accused having conceived the ulterior intention to exterminate the life of his victim and made preparations with an avowed objective to attempt on the life of PW-4. The circumstances as revealed from the evidence do not disclose any preconceived motive or intention on the part of the accused to have caused such injuries which could be brought under the ingredients of section 307 of IPC.
28. This conclusion is reached after carefully considering the nature of injuries which do not bear any opinion of the doctor and the MLC having not been proved on record. Further more, it is not the case of PW-4 who was working as an ASI as on the date of incident, the accused is earlier known to him and had nursed some enmity. No where in his testimony the injured avers any kind of SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 13 of 15 animosity or motive behind the attack he suffered at the hands of the accused. The injuries as depicted in the MLC do not bear any severity though it was argued by the Ld. Addl. P.P. that the motive becomes immaterial. This court cannot shut its eye in gathering the intention of the accused for the overt act alleged. Suffice it to say that the attendant circumstances and the nature of injuries caused by the accused on the person of PW-4 do not supplant or attribute the intention and knowledge on the part of the accused. Therefore, necessary ingredients for the offence u/s 307 of IPC are not made out and the accused is hereby acquitted of the charges u/s 307 of IPC.
Of Offence u/s 333 of IPC:
29. As far this offence is concerned, to pin down the accused for the complicity, he should have caused grievous hurt to such public servant with an intention to deter the said public servant in discharge of his official duties. This court has already discussed the non reliability of the MLC which is not proved on record and especially bearing a noting that the injured had absconded preventing the doctors to render final opinion, it becomes very difficult to hold that the accused caused the grievous hurt. The grievous hurt is defined u/s 320 of IPC as under:
"320. Grievous hurt. - The following kinds of hurt only are designated as "grievous":-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the SC No. 441/2016 (old no. 4/15) State vs. Sonu @ Tinku 03.02.2017 Page 14 of 15 powers of any member or joint.
Sixthly - Permanent disfiguration of the head or face. Seventhly- Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits".
30. None of the eight circumstances are made out from the nature of injuries as found from the MLC. Even the final opinion issued by the Max Super Specialty Hospital only says that the injuries grievous in nature. The said MLC is not proved on record. Even assuming the said injuries which is lacerated wound, the same does not come within the definition under Section 320 of IPC. In view of the above, the charge u/s 333 of IPC does not stand on any firm footing. The oral and documentary evidence against the accused do not disclose such offence having been caused by him. Thus, the accused is hereby acquitted of the said charge. Consequently, the following:
ORDER The accused is held guilty of the offences u/s 186 and 353 of IPC in FIR No. 619/14 of P.S. M. S. Park, Delhi.
The accused is acquitted for the offences under sections 307 & 333 of IPC.
Put up for the hearing on the sentence by 3.00 p.m.
Pronounced in open court (A.S. Jayachandra)
on 03.02.2017 District & Sessions Judge
Shahdara District, Delhi
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