Delhi District Court
Sarju Prasad vs . State Of Bihar, 1965 Sc 843 (1), State on 9 December, 2009
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IN THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI.
SC No. 136/09.
FIR No.540/2001.
PS :-TILAK NAGAR.
U/s .325/323/506/308/34 IPC.
STATE
VERSES.
1. THAN SINGH S/O. BABU SINGH
R/O. Z-108, VISHNU GARDEN,
KHAYALA, DELHI.
2. SHIV KUMAR S/O. THAN SINGH
R/O. Z-108, VISHNU GARDEN,
KHAYALA, DELHI.
3. SMT. URMILA W/O. THAN SINGH
R/O. Z-108, VISHNU GARDEN,
KHAYALA, DELHI.
4. MS. MAMTA D/O. THAN SINGH
R/O. Z-108, VISHNU GARDEN,
KHAYALA, DELHI.
Date of Institution : 05.06.2003
Date of receipt of case in this Court : 03.08.2009
Arguments heard On : 03.12.2009
Order Announced On : 08.12.2009
SHRI HARVINDER KUMAR, LD. SUBSTITUTE APP FOR THE
STATE.
SHRI ANIL KHOSLA, LD. COUNSEL FOR ACCUSED PERSONS.
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JUDGMENT
1. Brief facts of the case are that complainant Raj Kumar filed a complaint under Section 200 Cr.P.C. before learned Chief Metropolitan Magistrate, which was assigned to the concerned MM, PS-Tilak Nagar. Learned MM vide order dated 05.08.2001 directed SHO, PS-Tilak Nagar to register FIR and investigate.
2. In the complaint Ex.PW1/A, it is alleged that complainant and accused persons namely Shri Than Singh, Shiv Kumar, Urmila, Mamta, Vandana and Geeta are residing at 109 and Z-108, Vishnu Garden, Khyala as neighbourers. The complainant is a medical practitioner and running his clinic from his residence situated at Z-109, Vishnu Garden, Khyala. The wife of the complainant is also well educated. It is alleged that accused no.1 & 2 are considered as bad characters of the area and earlier then on 15.11.2000 a quarrel had taken place. But compromise arrived at between the parties. It is alleged that on 13.7.01 at about 9 pm during the night the accused no.1 armed with Halwai Palta, in :3: front of complainant's clinic came and hit at the head and due to which complainant fell down and during commotion the wife of the complainant rushed and in order to save, accused no.2,4 & 5 hit the complainant in the stomach, nose and leg. It is further alleged that due to beatings complainant and his wife both fell down and the complainant remained unconscious for 16 hours at DDU Hospital and remained admitted for about three days. In the complaint, it is alleged that accused persons committed offence punishable under Section 308/323/506/34 IPC. The police investigated the complaint and filed chargesheet against accused Than Singh, Shiv Kumar, Urmila and Mamta for trial of offence punishable under Section 325/323/506/34 IPC. Accused Ms. Vandana and Geeta shown in column no.2. On the chargesheet learned MM took the cognizance of offence punishable under Section 308/323/506/325/34 IPC.
3. Learned M.M. after compliance of provision U/s. 207 Cr.P.C committed the case to the court of Sessions.
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4. My learned predecessor vide order dated 15.3.2004 framed the charges for trial of offences punishable under Section 308/34 IPC, 323/34 IPC and 506/34 IPC against accused persons Than Singh, Shiv Kumar, Urmila and Mamta, to which they pleaded not guilty and claimed trial.
5. Prosecution in support of the present case examined PW1 ASI Sahab Singh, Duty Officer, on 09.08.2001 he was working as duty officer and received complaint of Raj Kumar Ex.PW1/A. Additional SHO Inspector Rajender Prasad made endorsement on the order sheet dated 08.08.2001 Ex.PW1/B. He further deposed that he recorded the FIR and sent the complaint alongwith copy of FIR through Ct. Udai Singh to SI Rajbir Singh at PP-Khyala.
6. PW5 Dr. Nishu Dhawan, CMO, DDU Hospital had deposed that she has been deputed to depose in respect of MLC No.4430 of patient Raj Kumar, who was examined by Dr. Ashish Kumar. She deposed that as per opinion the injury was grievous as there was fracture of left nasal chord and proved MLC Ex.PW5/A. She also proved Radiology Report prepared by Dr. Ekta Maheshwari Ex.PW5/B. PW6 Dr. Arun :5: Singh also proved MLC Ex.PW5/A. She deposed that on 17.7.01 she examined patient Raj Kumar and observed swelling deformity tenderness over nose, blood clots seen in Nostrils, bruise over forehead and patient was referred to ENT and surgery.
7. PW2 Raj Kumar, complainant appeared in the witness box and deposed that he knows all the four accused persons being the neighbourers and residing in House No.108. He deposed that on 13.7.2001 at about 9 pm he was present at the clinic. Accused Than Singh and Shiv Kumar are running a Halwai shop adjacent to his clinic and level of the shop is on the higher altitude then of the clinic. He further deposed that accused Than Singh and Shiv Kumar after cleaning the road side in front of their shop put garbage towards the clinic. He objected to it and started talking. Then other family members of accused Than Singh i.e. wife Urmila, daughter Mamta and two other daughters namely Geeta and Vandana came there. He further deposed that accused Than Singh took out an iron palta of halwai from his shop and hit at the head as well as on the nose. Thereafter he fell down. Accused Shiv Kumar had given fist blow on the stomach and :6: accused Urmila and Mamta had also given fist and leg blow. In the meanwhile, his wife Reena Yadav arrived there and tried to save him but accused persons also given beatings to her.
8. He further deposed that his wife was caught by accused from her hairs and gave fist blow and leg blow, as a result of which she received injuries. He further deposed that because of injuries he became unconscious and his wife removed him to DDU Hospital by PCR. He further deposed that he regained consciousness after about 16 hours and discharged from hospital after three days. He further deposed that he had been getting treatment for injuries about 2-3 months. He deposed that he had given statement in the DDU Hospital but no case was registered by the police against the accused persons. Thereafter he filed the complaint case vide complaint Ex.PW2/A. He further proved list of witnesses Ex.PW2/B. He further deposed that vide an application under Section 156(3) Cr.P.C. alongwith complaint Ex.PW2/B. He further deposed that on 13.11.2001, accused Shiv Kumar was arrested in his presence by the police.
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9. In the cross examination he deposed that he is a DAMS Doctor and running his clinic in the name of Yadav Clinic for the last 11 years. The shop of the accused is adjacent to his clinic and he has no employee. He further deposed that he does not maintain any register of patient but issues slips but not keep copies of the slips. He deposed the incident relates to 13.7.2001 at about 9 pm when 2-3 patients were present in the clinic. He further deposed that he did not inform the police about the incident and cannot tell who had taken him to the hospital. One child of the accused had broken the glass of his clinic with stone. He further deposed that all the four accused persons attacked him with iron palta. Accused Than Singh hit him with iron palta on the forehead and nose and he also felt fist blows. He deposed that he became unconscious in 1-2 minutes of the injury and remained unconscious for about 16 hours.
10. He further deposed that his statement recorded by police on the next day but cannot tell exact time and police official who recorded his statement. The police did not make site plan in his presence or recorded statement of any person. He admits that he did not make any person of the :8: locality as witness. He further deposed that his wife came after he became unconscious as somebody had told her that he was injured but cannot tell the name of that person. He denied the suggestion that accused persons are falsely implicated in this case.
11. PW3 Reena Yadav wife of the complainant deposed that on 13.7.2001 at about 9 pm she informed by a child that a quarrel is going on at the clinic. Then she saw from the roof that all the accused persons severely beating her husband Raj Kumar. She deposed that she immediately rushed to the spot and saw that accused Than Singh was having a Halwai Palta and given a blow on the head of her husband, and other accused persons were giving fists blows and were in ferocious mood. She further deposed that her husband became unconscious and fell down on the ground. She tried to separate her husband from the clutches of accused persons, she was also given beatings. She deposed that they snatched her hairs and also gave her leg and fists blows.
12. She further deposed that someone telephoned at number 100, PCR Van came and removed them to the :9: hospital. She deposed that her husband remained unconscious for about 16 hours and on next day regained consciousness and discharged from the hospital after three days. She deposed that she did not undergo medical examination. In the cross examination she deposed that accused Shiv Kumar my Jethani's son who informed about the quarrel, he was seven years old. She deposed that she reached at the spot after five minutes after information. Her husband fell down when she reached there but he was conscious. She further deposed that accused Than Singh given palta blow after she reached there. She further deposed that her brother in law Dinesh Yadav later on came to mediate the quarrel and had also came to the spot but he was not well. The PCR persons came at spot at about 9.45pm to 10 pm. She went to the hospital alongwith her husband. She deposed that she has no knowledge when police registered the case. The police visited his house 2-3 times after the incident. She denied the suggestion that accused persons are falsely implicated in this case. She admits that she had given a complaint to SDM in her own handwriting Ex.PW3/DA.
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13. PW4 SI Rajbir Singh, deposed that on 08.08.2001 he was Incharge of PP-Khyala. He deposed that the investigation as per direction of learned MM, marked to him and he went to 108, Vishnu Garden, Khyala and prepared site plan at the instance of complainant Ex.PW4/A. He deposed that on 13.11.2001, accused Shiv Kumar was arrested by ASI Balwant Singh vide FIR No.741/01, later on at the instance of the complainant arrested in this case vide Arrest Memo Ex.PW4/A. Accused Than Singh was arrested on 16.11.2001 by ASI Balwant Singh vide Arrest Memo Ex.PW4/B. He further deposed that accused Mamta and Urmila were released on anticipatory bail, who were formally arrested on 11.2.2002 vide Arrest Memo Ex.PW4/C and Ex.PW4/D. He further deposed that he recorded statement of Reena and Raj Kumar and obtained MLC of Raj Kumar and after completion of investigation filed the challan.
14. In the cross examination he deposed that site plan was prepared on 13.11.2001 at the instance of the complainant. No other public persons agreed to join the investigation. He denied the suggestion that he did not make any offer to join public persons or witness in the :11: investigation. He denied the suggestion that the entire story is concocted.
15. Statement of all the accused persons under Section 313 Cr.P.C. was recorded, they wish to examine witnesses in their defence.
16. Accused examined DW1 Udey Pal Singh, who deposed that accused Than Singh is the son of his maternal uncle. On 13.7.2001 Malkhan Singh expired at about 11 am and cremated at 6 pm. Accused Than Singh and his son came to attend the cremation and stayed at Eta overnight and left Delhi in the morning. He further said that he cannot say at what time they came to Delhi. He cannot tell how many children Than Singh has. He further deposed that he never came to Delhi to meet Than Singh prior to this incident. He does not know the name of brother of accused Than Singh. He denied the suggestion that Than Singh and his son did not attend cremation of Malkhan Singh.
17. DW2 Gajraj Singh, deposed that his father Malkhan Singh expired on 13.7.2001 at about 11 am and cremated at 6 pm. Than Singh and Shiv Kumar were present there and left for Delhi on the next morning. He proved the :12: death certificate Ex.DW2/A. In the cross examination he deposed that accused Than Singh and his son Shiv Kumar reached at their house at 6 pm. Than Singh is having 8 children i.e. two sons and six daughters, but he cannot tell the names. He denied the suggestion that the death certificate is a forged document and Than Singh and his son did not attend the cremation of his father. After the death of his father his mother has been withdrawing family pension. He proved pension Ex.DW2/B. He further deposed that accused Than Singh is the son of his maternal uncle and he came to know about arrest after 3-4 days of his arrest. He further deposed that he did not make complaint to the police or any other authority regarding the false implication of the accused persons. He denied the suggestion that on 13.07.2001 at about 9 pm accused persons assaulted Raj Kumar with iron palta with intention to kill him. He denied the suggestion that accused persons criminally intimidated and voluntarily caused injuries to Raj Kumar. He denied the suggestion that he has been deposing to create false alebi in favour of the accused persons to save them from the punishment. He denied the suggestion that the Ex.DW2/A :13: and Ex.DW2/B are false and fabricated and created for defence of accused persons.
18. The prosecution case rests upon two star witnesses i.e. PW2 Raj Kumar, Injured and PW3 Reena Yadav eyewitness. Before analyzing the testimonies of these two witnesses it is necessary to bear in mind the legal principles of law and legal prepositions in respect of proving the case under Section 308 IPC.
"Section 308. Attempt to commit culpable homicide- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both."
19. The analogy of Section 307 and 308 IPC are the same law is well settled by the Apex Court in the case of Sarju Prasad Vs. State of Bihar, 1965 SC 843 (1), State of Maharashtra Vs. Balram Bama Patil & others, AIR :14: 1983 SC 305 (1). In the judgment of State of Maharashtra (Supra) it is held as under:-
"To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature if injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from the other circumstances, and way even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may be not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
20. The Apex Court in the case of State of M.P. Vs. Saleem @ Chamaru & Another AIR 2005 SC 3996 reiterated the principle laid down in the judgment of Sarju :15: Prasad (supra) and State of Maharashtra (supra). In this case it is held that :-
"It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under section 307, IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
21. Now bearing above principles of law, let us analyze the testimonies of star witnesses of the prosecution as discussed herein above PW2 Raj Kumar deposed that accused Than Singh is the neighbour and carrying on a Halwai Shop and he is carrying on a clinic being a doctor. A quarrel took place because some garbage was put in front of the clinic of PW2 Raj Kumar. In his testimony PW2 Raj Kumar specifies that accused Than Singh alongwith his wife and his :16: daughter Mamta and Shiv Kumar Singh quarreled with him. Accused Than Singh took iron Palta and hit at his head and nose. As a result of which he fell down and became unconscious. PW3 Reena Yadav further corroborates these facts in her testimony. She further deposed that the accused Than Singh gave a blow with a Halwai Palta on the head of PW2 Raj Kumar and other accused persons had given fist blow. Her husband PW2 Raj Kumar become unconscious. She further corroborate the fact that she also given beatings by the accused persons and her hairs were also snatched. In the cross examination on these aspect both the witnesses remained cogent and coherent.
22. PW5 Dr. Nishu Dhawan, CMO, DDU Hospital, Delhi appeared in the witness box and proved the injuries. She specifically mentioned that injuries received by PW2 Raj Kumar were grievous as there was fracture of left nasal chord as per MLC Ex.PW5/A. The Radiology Report is also proved Ex.PW5/B. PW6 Dr. Aruna Singh also proved the fact mentioned in the MLC Ex.PW5/A. Hence on the basis of testimonies of PW2 Raj Kumar, PW3 Reena Yadav, PW5 Dr. :17: Nishu Dhawan and PW6 Dr. Aruna Singh Prosecution established that a quarrel took place in which PW2 Raj Kumar had received grievous injuries and PW3 Reena Yadav received simple injuries.
23. Now coming to the defence led by the accused persons wherein plea of alibi has been taken. Accused persons examined DW1 Uday Pal Singh and DW2 Gajraj Singh wherein they stated that one Malkhan Singh had expired on 13.7.2008 and cremated at 6 PM in the evening and accused Than Singh and his son attended the cremation. The accused persons failed to prove any documentary proof of leaving the Delhi on that day and then returning to Delhi. More so, during cross examination of PW2 Raj Kumar and PW3 Reena Yadav, no suggestion or question put by the accused persons Than Singh and Shiv Singh were not in town on the day of incident and they were attending cremation of one Malkhan Singh. Similarly during the cross examination of IO SI Rajbir Singh, no suggestion or question in respect of plea of alibi put by the accused persons. The plea of alibi is afterthought after completion of prosecution evidence. Hence plea of alibi is unbelievable and story made up as a result of :18: afterthought. Hence it does not inspire confidence.
24. On the basis of observations and discussions the prosecution failed to establish that injuries inflicted by accused persons in furtherance of their common intention fulfills the ingredients of Section 308 IPC. The intention and knowledge on the part of the accused persons to cause culpable homicide during the quarrel injuries inflicted by the accused persons was sufficient to cause culpable homicide was within the knowledge of the accused persons and they had intentions to cause culpable homicide not established beyond reasonable doubts. Hence, accused persons are acquitted for commission of offence punishable under Section 308 IPC. However, successfully proved the charge for commission of offence punishable under Section 325/323/506/34 IPC. Accordingly all the accused persons are convicted for the offence punishable under Section 325/323/506/34 IPC. Ordered accordingly.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e. 08.12.2009.
:19: IN THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - I, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI.
SC No. 136/09.
FIR No.540/2001.
PS :-TILAK NAGAR.
U/s .325/323/506/34 IPC.
STATE VERSES.
1. THAN SINGH S/O. BABU SINGH R/O. Z-108, VISHNU GARDEN, KHAYALA, DELHI.
2. SHIV KUMAR S/O. THAN SINGH R/O. Z-108, VISHNU GARDEN, KHAYALA, DELHI.
3. SMT. URMILA W/O. THAN SINGH R/O. Z-108, VISHNU GARDEN, KHAYALA, DELHI.
4. MS. MAMTA D/O. THAN SINGH R/O. Z-108, VISHNU GARDEN, KHAYALA, DELHI.
Date of Institution : 05.06.2003 Date of receipt of case in this Court : 03.08.2009 Arguments heard On : 03.12.2009 Order Announced On : 08.12.2009 Order on Sentence on : 09.12.2009
MS. PURNIMA GUPTA, LEARNED SUBSTITUTE APP FOR THE STATE.
SHRI ANIL KHOSLA, LD. COUNSEL FOR ACCUSED PERSONS.
:20: ORDER ON SENTENCE.
1. Learned Counsel for the all four convicts submits that all the convicts faced the trial for almost about four eight years. All convicts attended the court continuously and regularly. He further submits that accused Than Singh is aged about 56 years and having no past record for involvement in any other criminal case. He is the head of the family consisting of six daughter and two sons and wife, who have faced trial before the court.
Convict Shiv Kumar is aged about 25 years and married. He is also not having any past record in any criminal case. He has not been convicted of any offence by any court of law.
Convict Urmila is aged about 52 years and never involved in any criminal case and she is housewife.
Convict Mamta is the daughter of accused Than Singh aged about 25 years, married and having daughter of one year. She is also not involved in any other criminal case.
2. I have heard learned counsel for the convicts and gone through the record. All convicts faced the trial for about eight years. All are the member of the same family. Accused :21: Mamta and Urmila both are woman and never involved in any criminal case. They have no past history. This is the first offence against them. In my opinion, it is a fit case to grant benefit of probation, hence, both convicts are released on Probation on their furnishing bond of good conduct and good behaviour in the sum of Rs.8,000/- with one surety of like amount for six months.
3. Convict Shiv Kumar is also young and married. He is also not convicted previously from any court of law. At the time of commission of offence he was around 17 years of age. Hence he is also released on probation being the first offender on his furnishing bond of good conduct and behaviour in the sum of 8,000/- with one surety of like amount for six months.
4. Convict Than Singh is aged about 55 years and faced the trial for about 8 years. However, as per his involvement in the commission of offence he is main offender who caused grievous injuries, as a result, nasal bone of PW2 Raj Kumar was broken. Hence I sentence convict Than Singh for offence punishable under Section 325 IPC to undergo RI of Six months and fine in the sum of Rs.5000/-. In :22: default of payment of fine SI for one month.
For offence punishable under Section 323 IPC, convict is sentenced to undergo RI of Six months and fine in the sum of Rs.5000/-. In default of payment of fine SI for one month.
For offence punishable under Section 506 IPC, convict is sentenced to undergo RI of Six months and fine in the sum of Rs.5000/-. In default of payment of fine SI for one month.
5. All the sentence shall run concurrently. Copy of judgment and that of order on sentence be supplied to the accused persons today itself, free of cost, today itself. Benefit of Section 428 Cr.P.C. be given to the Convicts/Accused persons if any. Sessions file be consigned to record room.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e. 09.12.2009.
:23: STATE VS THAN SINGH & OTHERS.
FIR NO.540/01.
PS-TILAK NAGAR.
03.12.2009.
Present: Shri Harvinder Kumar, Substitute APP for the State.
All accused on bail with Shri Anil Khoshla, Advocate.
Final arguments heard.
Put up the case for orders on 08.12.2009.
(SANJAY KUMAR) ASJ-01(NW):ROHINI COURTS:DELHI.
03.12.2009.
:24: STATE VS THAN SINGH & OTHERS.
FIR NO.540/01.
PS-TILAK NAGAR.
08.12.2009.
Present: Shri Harvinder Kumar, Substitute APP for the State.
All accused on bail.
Vide separate Judgment all the accused persons are acquitted for offence punishable under Section 308 IPC. However, they are convicted for offence punishable under Section 325/323/506/34 IPC.
Put up the case for order on sentence on 09.12.2009.
(SANJAY KUMAR) ASJ-01(NW):ROHINI COURTS:DELHI.
08.12.2009.
:25: STATE VS THAN SINGH & OTHERS.
FIR NO.540/01.
PS-TILAK NAGAR.
09.12.2009.
Present: Ms. Purnima Gupta, Substitute APP for the State.
All convicts on bail with Shri Anil Khoshla, Advocate.
Vide separate order convicts Shiv Kumar, Urmila and Mamta are released on probation. However, accused Than Singh is convicted for offence punishable under Section 325/323/506 IPC and sentenced to undergo RI of Six months and fine in the sum of Rs.5000/-. In default of payment of fine SI for one month for each offences.
All the sentence shall run concurrently. Copy of judgment and that of order on sentence be supplied to the accused persons today itself, free of cost, today itself. Benefit of Section 428 Cr.P.C. be given to the Convicts/Accused persons if any. Sessions file be consigned to record room.
(SANJAY KUMAR) ASJ-01(NW):ROHINI COURTS:DELHI.
09.12.2009.
:26: STATE VS THAN SINGH & OTHERS.
FIR NO.540/01.
PS-TILAK NAGAR.
09.12.2009.
Present: Ms. Purnima Gupta, Substitute APP for the State.
All convicts on bail with Shri Anil Khoshla, Advocate.
An application has been filed on behalf of convict Than Singh for suspension of sentence for filing of appeal.
Heard.
The sentence is suspended for 30 days or till the filing of appeal whichever is earlier as convict wish to prefer appeal.
Convict is released on bail on his furnishing Personal bond in the sum of Rs.10,000/- with one surety of like amount. Application disposed of accordingly.
(SANJAY KUMAR) ASJ-01(NW):ROHINI COURTS:DELHI.
09.12.2009.