Delhi District Court
Sc No. 39/14 State vs . Vinod @ Kake Etc. Page No. 1/26 on 22 January, 2015
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI
COURTS, DELHI.
IN THE MATTER OF
SESSIONS CASE NO.39/14 & Old No. 42/10
FIR No. 923/07
P.S. Uttam Nagar
U/S 308/34 IPC
STATE
VERSUS
(1) SH. VINOD @ KAKE
S/O SH.CHIRANJI LAL,
R/O H.NO. 586, T CAMP,
KRISHNA COLONY, KALI BASTI,
UTTAM NAGAR, NEW DELHI.
(2) VIJAY @ NOTI
S/O SH.CHIRANJI LAL
R/O H.NO. 546, T CAMP,
KRISHNA COLONY, KALI BASTI,
UTTAM NAGAR, DELHI
(3) VIKRAM @ MAHESH
S/O SWAMIDEEN
R/O H.NO. 792, T CAMP,
KALI BASTI, KRISHNA COLONY,
UTTAM NAGAR, NEW DELHI.
SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 1/26
DATE OF INSTITUTION : 27.07.2010
DATE OF RESERVING THE ORDER : 14.01.2015
DATE OF DECISION : 19.01.2015
JUDGEMENT
1. In brief, the case of the prosecution is that on 15.12.2007, on receipt of DD no. 47B, ASI Sanwar Mal alongwith Ct. Vishnu No. 1575/W reached DDU hospital and he received MLC no. 27884/07 of the complainant Pappu S/o Sh.Saudan R/o G555, Sultan Puri, Delhi. The injured was found referred to Safdarjang hospital. ASI Sanwar Mal reached at Safdarjang hospital and he came to know that the injured had been admitted in Ward B and minor operation has been performed on him. He filed an application about the medical condition of the injured. The concerned doctor declared the injured "fit to make statement". Injured made statement to ASI Sanwar Mal to the effect that he used to sell Eggs on Rehri in Sultan Puri. He is residing in Jhuggi no. A106, T Camp, Krishna Colony, Kali Basti, Uttam Nagar, Delhi. He alongwith his wife Smt.Bhagwati went to T.Camp, Krishna Colony, Kali Basti, Uttam Nagar, Delhi for making slips of ICard. At about 4 PM, when after urinating at Sulabh Shauchalya, he reached near Barbar shop, near drain, then accused Vijay @ Noti S/o Sh.Chiranji Lal, Satya Prakash @ Pappu S/o Sh.Chiranji Lal, Mahesh S/o Sh.Swamidin and Kake S/o Sh.Chiranji Lal, with whom the complainant was having previous enmity, came and started giving beatings to him. Satya Prakash @ Pappu caught hold the complainant and Vijay @ Noti was SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 2/26 having Khukhari (sharp edged weapon) in his right hand and he gave a blow with Khukhari on the person of complainant. The complainant tried to save himself with his right hand and as a result of which he received injuries on the wrist of his right hand. Vijay @ Noti gave another blow on the head of the complainant. Mahesh gave a blow with iron bucket on the head of the complainant and accused Kake gave legs and fists blows to him. It is further mentioned by the complainant that due to the injuries, he fell in the drain. His wife raised noise and all the accused persons after giving injuries fled away from the spot. His wife got him admitted in the hospital and from there, he was referred to Safdarjang hospital.
2. On the statement of the complainant, case FIR no. 923/07 U/s 308/34 IPC PS Uttam Nagar was registered against the accused persons.
3. Investigation was carried out. Site plan was prepared. Statements of all the witnesses were recorded. Blood stained clothes of the injured were taken into possession. Accused persons were arrested and chargesheet was filed.
4. My Ld. Predecessor has framed the charge for the offence U/s 308/34 IPC on 23.08.2010 against all the accused persons to which they pleaded not guilty and claimed trial.
5. In order to prove its case the Prosecution has examined 16 witnesses.
6. Thereafter statements of accused persons U/s 313 Cr.P.C. were recorded wherein they have submitted that they have been falsely SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 3/26 implicated in the present case at the instance of police officials. Accused Vijay @ Noti has examined DW1 Sh.Narain Dass in his defence.
7. I have heard ld. Addl. PP for the State and ld. Amicus Curiae for the accused and perused the record carefully.
8. PW1 ASI Om Prakash has deposed that on 15.12.2007, at about 23.10 hours, he had received rukka through Ct. Vishnu sent by ASI Sanwar Mal for registeration of the FIR and on the basis of said rukka, he registered case FIR in the present case. After recording the FIR, he handedover copy of FIR and original rukka to Ct. Vishnu for further handing over to the IO. This witness has proved the carbon copy of FIR as Ex. PW1/A and his endorsement on the rukka as Ex. PW1/B.
9. PW2 Pappu @ Sehri S/o Sadan is the complainant in the present case. He has deposed that he used to sell Eggs on Rehri at Sultanpuri and he had sold the H.No. 281, of his mother situated at Kali Basti, Krishna Colony. He was having his own Jhuggi no. A106, Krishna Colony, Kali Basti. He has further stated that on 15.12.2007, he alongwith his wife reached at Kali Basti in the jhuggis for preparing the Election ICard and at about 4 PM, when they were coming back, he went for urinating. His wife was standing outside in his wait and after urinating, he came back and reached near the Barber shop situated near the toilet. Four persons namely Noti, Satya Prakash, Kake and Mahesh came there and he had verbal duel (Kahasuni) with all the four persons. The accused Noti started abusing him and he was SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 4/26 caught hold by Satya Prakash, the brother of accused Noti and Kake.
This witness has correctly identified all the three accused persons present in the court. He has further stated that accused Noti had taken out a Khukhari and gave blow with it, which was stopped by him with the help of his hands and he sustained Khukhari blow on his right forearm and accused Noti again gave a Khukhari blow on his head. The accused Mahesh had hit iron bucket on his head and accused Kake had given the fist and leg blows on him. He has further stated that due to the injuries, he fell down in a drain situated nearby. His wife tried to save him but she was pulled by the accused persons by pulling her hairs. His wife raised an alarm to save him by saying 'Bachao Bachao' and the accused persons ran away from the spot. He was taken to DDU hospital and thereafter, he was referred to Safdarjang hospital. He has further stated that the accused persons were having previous enmity and a quarrel had already taken place with them. This witness has proved his statement as Ex. PW2/A recorded by the IO and he has also proved his clothes which were smeared with blood i.e. Shirt as Ex. P.1; The sweater of grey colour having white strips Ex. P.2; one torn blood stained baniyan Ex.P.3; one blood stained Jeans Ex. P.4 and one yellow colour blood stained Shawl Ex. P.5. He has further stated that his blood stained clothes were taken by the police vide Seizure memo Ex. PW4/A. This witness has further stated that on 26.09.2010, when SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 5/26 he was present at Uttam Nagar, accused Kake, Mahesh and Satya Prakash reached there and told to him that they will teach him a lesson for lodging report against them and attacked him with iron rod and knife. He again sustained injuries on his head. Someone informed the police and he was taken to DDU hospital where he was medically examined. This witness has proved he Progress Notes of DDU hospital as Ex. PW2/B and copy of FIR as Ex. PW2/C. This witness has also proved the discharge summary regarding his treatment from 15.12.2007 to 18.12.2007 in Safdarjang hospital as Ex.PW2/X.
10.PW3 HC Anil Kumar has deposed that on 17.12.2007, he was working as MHC(M) in PS Uttam Nagar and on that day, at about ASI Sanwar Mal had handedover to him one sealed parcel (plastic polythene) sealed with the seal of SMJ and deposited in the malkhana and made entry at srl.no. 5120 in register no. 19. This witness has proved the said entry as Ex. PW3/A.
11.PW4 Smt. Bhagwati, the wife of the complainant has deposed that on 15.12.2007, she alongwith her husband Pappu @ Sehri reached at Kali Basti in the jhuggis for preparing election Card as they were having jhuggi no. A106, Krishna Colony, Kali Basti. She has further stated that on that day at about 4 PM, when they were coming back and reached near the Barber shop on the road, her husband had gone for urinating at Sulabh Shauchalya and she was waiting for her husband while standing on the road. Her husband came back and when they reached near the Drain (Nali) near Barber shop, the persons Vijay @ Noti, Mahesh, Kake and SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 6/26 Satya Prakash who were having enmity with her husband, reached there.
This witness has correctly identified all the accused persons present before the court. She has further deposed that her husband was caught hold by the accused Pappu and accused Vikram @ Mahesh had given an iron bucket blow on the head of her husband. Accused Vijay @ Noti was having a Khukhari in his hand and gave Khukhari blow to her husband on his head and hand. Accused Kake had given leg and fist blows to her husband. She raised alarm loudly to save her husband by telling them to leave her husband. Thereafter, accused persons ran away from the spot. She has further stated that she took her husband to DDU hospital and from there he was referred to Safdarjang hospital. She had handedover the clothes of her husband having blood stains to the police which were seized by the IO vide memo Ex. PW4/A. This witness has proved the site plan Ex. PW4/B. This witness has also proved the blood stained clothes of her husband i.e. Shirt as Ex. P.1; The sweater of grey colour having white strips Ex. P.2; one torn blood stained baniyan Ex.P.3; one blood stained Jeans Ex. P.4 and one yellow colour blood stained Shawl Ex. P.5.
12.PW5 SI Kailash Chand has deposed that on 30.09.2008, the investigation of this case was marked to him by the orders of SHO, PS Uttam Nagar and he collected the case file from MHC(R) PS Uttam Nagar and made search for accused Vikram @ Mahesh but in vain.
SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 7/26He has further stated that on 06.10.2008, accused Vikram @ Mahesh surrendered before the court and on receiving the information, he reached Rohini Court and there with the permission of Court, he arrested accused Vikram @ Mahesh vide Arrest Memo Ex.PW5/A and conducted his personal search vide memo Ex. PW5/B. He had also recorded disclosure statement of accused Vikram @ Mahesh vide memo Ex. PW5/C. He has further stated that he obtained one day PC Remand and he pointed out the place of occurrence vide pointing out memo Ex. PW5/D, however nothing was recovered in pursuant to disclosure statement of accused Vikram @ Mahesh. Thereafter, accused was got medically examined and put to lock up of PS Janak Puri. On the next day, he was produced before the court and was remanded to Judicial custody. Thereafter, he prepared the chargesheet and filed the same in the court. He has further stated that accused Chander Prakash @ Satprakash was placed in column no. 12 of the chargesheet.
13.PW6 HC Krishan Pal has deposed that on 23.09.2008, accused Vijay @ Noti surrendered himself before the court of Ld.M.M. and he was arrested him vide Arrest Memo Ex. PW6/A. Personal search of accused Vijay @ Noti was conducted vide memo Ex. PW6/B. Accused Vijay @ Noti was interrogated and he made disclosure statement which is proved as Ex. PW6/C. Accused was remanded to one day police custody. This witness has also proved the pointing out memo which was prepared at the instance of accused Vijay @ Noti as Ex. PW6/D. This witness has SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 8/26 correctly identified accused Vijay @ Noti before the court.
14.PW7 Dr.John Mohammad has deposed that he has been deputed by the Medical Superintendent, DDU hospital to prove the handwriting of Dr.Neeraj, who has left the services of the hospital and his present whereabouts are not known. This witness has proved the handwriting and signatures of Dr.Neeraj as he had seen him writing and signing the documents during official duties.
After seeing the MLC, this witness has deposed that the patient/injured Pappu Lal S/o Sudan Singh, aged about 50 years male who was brought to casualty, DDU hospital on 15.12.2007 with alleged history of assault as told by the patient and he was medically examined by CMO who referred the patient to Plastic Surgery department for expert opinion. The case of the patient was seen by Dr.Neeraj SR Burn and Plastic Surgery with alleged history of assault leading two cut over right wrist.
This witness has further deposed that on local examination of patient, there were clean lacerated wounds 4 x 2 cm., 1 x 2 cm., 12 x 0.5 cm., 3.5 x 0.5 cm. And 3 x 0.5 cm. over right wrist. Patient was given treatment and his wounds were repaired under local anesthesia. Thereafter, the patient was referred to surgery, ENT and Eye department. Patient was also advised to have review in OPD. As per the record, Dr.Neeraj had opined the nature of injuries as simple. This witness has proved the noting of Dr.Neeraj on the MLC no. 27884 of the patient Pappu Lal from point A to A1 and signatures of Dr.Neeraj at point A.2 and the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 9/26 same is Ex. PW7/A.
15.PW8 Dr.N.Z.Farooqui has deposed that he has been deputed by the MS, DDU hospital to identify the handwriting of Dr.Vinita who had medically examined the patient Pappu Lal, being Resident Doctor of Eye Department. Dr.Vinita has left the services of the hospital and her whereabouts are not known as per the hospital record. This witness has identified the handwriting and signatures of Dr.Vinita as he had seen her writing and signing the document during official duties.
He has further deposed that as per record, there was alleged history of physical assault. On examination, the vision was found to be normal. In the right eye, there was periorbital oedema with ecchymosis i.e. swelling around the eye with bleeding below the skin. There was also oedema in the left eye in the lower lid. This witness has proved the endorsement/noting of Dr.Vinita on the MLC Ex. PW8/A from point B to B1.
16.PW9 Dr.Dinesh Kumar Varshney has deposed that he has been deputed by the MS of DDU hospital to identify the handwriting of Dr. Shanti, who had medically examined the patient Pappu being Sr.Resident doctor in ENT department. Dr. Shanti has left the services of the hospital and her whereabouts are not known as per the hospital record. This witness has identified the handwriting and signatures of Dr.Shanti as he had seen her writing and signing the documents during official duties.
This witness has further stated that as per record, there was alleged history of physical assault. On examination, there SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 10/26 was tenderness present on nose. Clots were present on bilateral nostrils and there was no active bleed. Posterior pharyngeal wall was clear. The patient was advised Xray nasal bone. This witness has proved the endorsement/noting of Dr. Shanti on the MLC Ex. PW9/A from point C to C1.
17.PW10 Dr.Vinal Sharma has deposed that he has been deputed by the MS of DDU hospital to identify the handwriting of Dr. Dheeraj Nath, who has left the services of the hospital and his whereabouts are not known as per the hospital record. This witness has identified the handwriting and signatures of Dr.Dheeraj Nath.
This witness has further deposed that as per noting and examination of patient, a deep cut wound present on his flexor aspect of wrist of size approx. 4 x 3 cm., cut tendor of flexor finger facie seen. Active bleeding present. Radial and Ulnar pulse not palpable. Neuro vascular cannot be assisted. Patient was advised Xray wrist and forearm, AP and Lateral view. This witness has identified the noting of Dr.Dheeraj Nath which is encircled with red ink and the same is Ex. PW10/A and his signatures at point X on the MLC no. 27884 of the patient.
18.PW11 Ct. Ram Kishan has deposed that on 20.12.2007, he had joined the investigation in this case with ASI Sanwar Mal for apprehending the accused. They went to flat no.33, Pocket 7, Durga Park, Nasir Pur, Dwarka, Uttam Nagar in search of accused Vinod @ Kake which is the house of brother of accused. When they reached outside the flat, the accused after seeing the police SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 11/26 party, tried to run away and fell down in stairs and apprehended by them. IO had arrested him vide memo Ex. PW11/A, conducted his personal search vide memo Ex. PW11/B. Accused Vinod @ Kake made disclosure statement vide memo Ex. PW11/D.
19.PW12 Dr. Anurag Jain has deposed that he had been deputed by the Medical Supdt. to depose on behalf of Dr.Neeraj who has left the services of the hospital and his present whereabouts are not known. This witness has identified the handwriting and signatures of Dr. Neeraj as he had seen him writing and signing during the course of official duties.
After seeing the MLC, this witness has deposed that the patient/injured Pappu Lal S/o Sudan Singh, aged about 50 years male who was brought to casualty, DDU hospital on 15.12.2007 with alleged history of assault and he was medically examined by CMO who referred the patient to Plastic Surgery department for expert opinion and examination. The case of the patient was seen by Dr.Neeraj SR Burn and Plastic Surgery with alleged history of assault leading cuts over right wrist.
This witness has further deposed that on local examination of patient, there were clean lacerated wounds 4 x 2 cm., 1 x 2 cm., 12 x 0.5 cm., 3.5 x 0.5 cm. and 3 x 0.5 cm. over right wrist. Patient was given treatment and his wounds were repaired under local anesthesia. Thereafter, the patient was referred to surgery, ENT and Eye department. Patient was also advised to have review in OPD. As per the record, Dr.Neeraj had opined the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 12/26 nature of injuries as simple. This witness has proved the noting of Dr.Neeraj on the MLC no. 27884 of the patient Pappu Lal from point A to A1 and signatures of Dr.Neeraj at point A.2 and the same is Ex. PW7/A.
20.PW13 Ct.Ranbir Singh has deposed that on 23.09.2008, he had joined the investigation with HC Kishan Pal and they reached in the court of Sh.Vinod Yadav, Ld.M.M, Rohini Courts where the accused Vijay @ Noti had surrendered. IO moved an application for interrogation and arrest of the accused which was allowed. The accused was arrested vide memo Ex.PW6/A, conducted his personal search vide memo Ex.PW6/B. Accused made disclosure statement vide memo Ex.PW6/C. Application for PC Remand was filed which was allowed. Accused was got medically examined. He has further stated that on 15.12.2007 pointing out memo was prepared by the IO which is Ex.PW6/D. This witness has correctly identified accused Vijay @ Noti.
21.PW14 SI Sanwar Mal has deposed that on 15.12.2007, he had received DD no. 47B, Ex.PW14/A regarding admission of one Pappu in injured condition at DDU hospital. Thereafter, he alongwith Ct.Vishnu went to DDU hospital and collected the MLC no. 27884/07 of injured Pappu. On the MLC, the injured was referred for Safdarjang hospital and the injured was already shifted to Safdarjang hospital. Thereafter he went to Safdarjang hospital alongwith Ct.Vishnu where the injured was found admitted at Ward B, bed no. 8, but taken to Minor OT. When injured was brought back to his bed, he took opinion of the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 13/26 doctor regarding fitness or non fitness of the injured for making the statement. After the injured was declared 'fit for statement' by the doctor, he recorded his statement, which is proved as Ex.PW2/A. He has further stated that thereafter, he prepared Tehrir which is proved as PW14/B and sent the same to PS through Ct.Vishnu for getting the FIR registered. The wife of the injured Smt.Bhagwati produced the blood stained clothes of injured and he converted the clothes of injured into pullanda and sealed with the seal of SMJ and seized vide seizure memo which is proved as Ex.PW4/A. He has further stated that from the hospital, he reached at the spot alongwith wife and son of the injured and there he inspected the spot at the pointing out of Smt.Bhagwati W/o Sh.Pappu and prepared site plan which is proved as Ex.PW4/B. At the spot, some blood stains were found on the heavy fixed slabs of drain and he photographed those blood stains with his Camera. Ct.Vishnu came at the spot and handedover the copy of FIR and rukka to him. He has further stated that he recorded the statements of Smt.Bhagwati and Ct. Vishnu at the spot. He had deposited the case property in the malkhana.
He has further stated that on 20.12.2007, he alongwith Constable went to Flat no. 33, Pocket 7, Durga Park, Nasib Pur, Dwarka to the house of brother of accused Vinod @ Kake for the search of accused Vinod @ Kake. When they were going upstairs, accused Vinod @ Kake was seen coming and after seeing the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 14/26 police, he started running but they managed to apprehend him. He has further stated that he interrogated the accused Vinod @ Kake and arrested him in the present case and conducted his personal search vide memos Ex.PW11/A and Ex.PW11/B. This witness has correctly identified accused Vinod @ Kake.
He has further stated that he recorded disclosure statement of accused Vinod @ Kake which is proved as Ex.PW11/C. Thereafter, accused Vinod @ Kake pointed out the place of incident and in this regard, he prepared pointing out memo which is proved as Ex.PW11/D. After getting the accused medically examined, he produced him before the Ld. M.M. and from there, he was sent to J.C. He has further stated that he made search for remaining accused persons but in vain. Thereafter, on 14.08.2008, he was transferred from PS Uttam Nagar to PS Punjabi Bagh and he handedover the case file to MHC(R).
This witness has also proved the clothes of injured i.e. Shirt as Ex. P.1; The sweater of grey colour having white strips Ex. P.2; one torn blood stained baniyan Ex.P.3; one blood stained Jeans Ex. P.4 and one yellow colour blood stained Shawl Ex. P.5.
22.PW15 HC Vishnu Kumar has deposed that on 15.12.2007, at about 5 PM, DD no. 47B, Ex.PW14/A was received to ASI Sanwar Mal. Thereafter, he and ASI Sanwar Mal went to DDU hospital,where the injured was already referred to Safdarjang hospital. His MLC was not prepared. Thereafter, they went to Safdarjang hospital, where injured Pappu was found admitted SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 15/26 and after taking the permission from the doctors, IO recorded statement of injured. IO prepared Tehrir and gave it to him for getting the FIR registered. After getting the FIR registered, he came to Kali Basti, Transit Camp near PS Uttam Nagar, where ASI Sanwar Mal, one female and one boy were present and he handedover copy of FIR and rukka to the IO.
In response to the leading question put by Ld.Addl. P.P.for the State, this witness has admitted that it is correct that the time of receiving of DD no. 47B in PS is 05.16 PM and not 05.00 PM.
23.PW16 Dr.Shefali, CMO DDU hospital has deposed that on 15.12.2007, at 4.55 PM, one person namely Pappu Lal S/o Sh. Saudan Singh aged about 58 years male was brought to the casualty with the alleged history of assault as told by the attendant i.e. Amit, his son.
She has further stated that on examination, there was no history of Nausea and vomiting, history of LOC present and patient was conscious and oriented. Pulse feeble and conjuctival echymosis. On Local examination, following injuries were observed on the person of injured :
1. Nasal Crepitus present.
2. Lacerated wound (5 x 3 x 3) Cm. present on right wrist region.
3. Lacerated wound on temporo parital region 6 x 2 cm.
Bone deep brain matter exposed.
4. Periorbital swelling of right eye present.
The injured was given first aid and he was referred to SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 16/26 Surgery department / Eye Department / ENT department / Ortho Department for further management and treatment. This witness has proved the MLC no. 27884 which is Ex.PW16/A and her endorsement at point Y, regarding transferring the injured to Safdarjang hospital.
24.Accused Vijay @ Noti has examined DW1 Sh.Narain Dass in his defence who has stated that on 15.12.2007, accused Vijay @ Noti came to his residence alongwith his family at about 9.30 AM. He remained at his residence till 11 PM. No police officials came at his residence to arrest accused Vijay @ Noti. Afterwards, he came to know that accused has been implicated in this case.
25.It is contended by Sh. Dhruva Bhagat, ld. Amicus Curiae for accused Vinod @ Kake and Vikram @ Mahesh that from the testimony of PW2 Pappu, it is proved that there was previous enmity between the accused persons and the complainant. Complainant admitted that he was convicted on the statement of accused persons for seven years. Both the accused persons are wrongly implicated in the present case. The weapon of offence i.e.Khukhari was not recovered. The complainant is also BC of the area and IO did not take any opinion regarding injuries inflicted by Khukhari and iron bucket. Complainant never went to the spot. PW4 Smt.Bhagwat admitted that she never went to the spot and nor saw the accused persons.
26.Sh.A.A.Qureshi, Ld. counsel for the accused Vijay @ Noti has contended that PW2 Sh.Pappu admitted in his statement that there was some verbal dual between him and the accused SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 17/26 persons. There is a contradiction in the statement given to the police as well as statement made in the court. PW2 Sh.Pappu has mentioned in rukka that after urinating, he came outside and in the examination in chief, he has not stated this fact. In the statement to the police, PW2 Sh.Pappu has not stated that his wife was beaten but PW2 Sh.Pappu in his examination in chief has stated that PW4 Smt.Bhagwati was also beaten. PW4 Smt.Bhagwati admitted that she was not seen any incident. PW2 Sh.Pappu has stated that his wife had got him admitted in the DDU hospital but MLC of the injured shows that PW2 Sh.Pappu was admitted in the hospital by his son Amit. PW2 Sh.Pappu stated in the court that he remained admitted in the hospital for about 8/10 days but discharge summary shows that he remained admitted in the hospital from 15.12.2007 to 18.12.2007. No recovery of any article from any of the accused persons has been effected. PW8 Dr.N.Z.Farooqui deposed that there was injury on his eye but PW2 Sh.Pappu in his statement has not stated that he has any injury on his eye. As the enmity is proved by PW2 Sh.Pappu, thus, accused persons has been falsely implicated in this case and they be acquitted.
27.On the other hand, ld. Addl. PP for the State contends that the enmity is a double edged weapon and accused persons have motive to give beatings to PW2 Sh.Pappu as there was previous enmity between the PW2 Pappu and the accused persons. If PW2 Pappu is the BC of the area, then the accused persons have no right to inflict injuries on his person. Both PW2 Pappu and SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 18/26 PW4 Smt.Bhagwati are truthful witnesses. There are no contradictions in the statements of PW2 Pappu and PW4 Smt.Bhagwati and they have fully supported the case of the prosecution. Accused Vijay has produced DW1 but his plea cannot be taken into consideration as accused has not taken the plea of alibi during the crossexamination and statement of DW1 did not establish that the accused Vijay @ Noti was not present at the spot at the time of occurrence. It is prayed that accused persons be convicted.
28.Now, I am dealing the contentions of ld. Amicus Curiae for the accused one by one.
29.PW2 Pappu has given detailed version of the incident. PW2 Pappu in his statement given to the police has mentioned that at about 4 PM, he after urinating at Sulabh Shauchalya, came at main road, Kali Basti, near drain, then accused persons came there. Similar statement was given by PW2 in his deposition that on 15.12.2007, he alongwith his wife reached at Kali Basti in the jhuggi for preparing the election I Card. On that day, at about 4 PM, when he was coming back and he went for urinating and his wife was standing outside. When he came and reached near Barber Shop, accused persons came and gave injuries to him. Thus, there is no contradiction by PW2 in his statement given to the police as well as deposition before the court and in both statements, he has categorically stated that after urinating, he came to the spot then, accused persons assaulted him. PW2 Pappu had given detailed version of the incident. This witness SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 19/26 has stated that accused persons are Noti, Kake and Mahesh except accused Satyaprakash and the witness has correctly identified all the accused persons. This witness has clearly stated that he was caught hold by Satyaprakash, the brother of accused Noti and accused Noti had taken out the Khukhari and he gave blow with Khukhari which was stopped by him with his hand and he sustained Khukhari blow on his right forearm. He has further stated that accused Noti again gave Khukhari blow on his head. This witness has stated that accused Mahesh had hit iron bucket on his head and accused Kake had given the fist and leg blows on him. He has further stated that due to the injuries, he fell down in the drain situated nearby. This witness has deposed as per his statement given to the police. Thus, there is no contradiction between the statement given to the police by this witness and the deposition before this court. Thus, this contention carries no force.
30.Moreover, during crossexamination, the testimony of PW2 Pappu remained unshattered. This witness in crossexamination has stated that an altercation had taken place between him and the accused persons in Kalli Basti. This witness has further stated that his wife was waiting for him outside the Sulabh Shauchalya. The accused persons have failed to show how the injured received injuries. No suggestion was put to PW2 that these injuries are self inflicted injuries or any other person had given him injuries. Moreover, the statement of PW2 Pappu is also corroborated by the medical evicence i.e. MLC. As per PW16 Dr.Shefali, there SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 20/26 were Lacerated wound (5 x 3 x 3) Cm. present on right wrist region. Lacerated wound on temporo parital region 6 x 2 cm. Bone deep brain matter exposed. Periorbital swelling of right eye present.
As per the testimony of PW12 Dr.Anurag Jain, there were clean lacerated wounds 4 x 2 cm., 1 x 2 cm., 12 x 0.5 cm., 3.5 x 0.5 cm. and 3 x 0.5 cm. over right wrist of the injured. Thus, the injuries of PW2 Pappu is also corroborated with medical evidence. Thus, I am of the view that PW2 Pappu is a truthful witness and he has given a detailed version of the incident during his deposition.
31.The next contention of the ld. Counsel for the accused persons is that PW2 Pappu had not stated in his statement that he had received any injuries on his eye in his statement to the police. Thus,the accused persons be acquitted.
I fail to appreciate this contention of the Ld. Counsel for the accused persons. PW8 Dr.N.Z.Farooqui has stated that in the right eye, there was periorbital oedema with ecchymosis i.e.swelling around the eye with bleeding below the skin. There was also oedema in the left eye in the lower lid. PW2 Pappu specifically stated that accused Kake gave legs and fists blows to him. PW2 Pappu received injuries in his both eyes and this fact is proved by PW8. Thus, this contention also carries no force.
32.It is also contended by the counsel for the accused persons that the discharge summary of PW2 shows that the witness remained admitted in the hospital from 15.12.2007 to 18.12.2007 and in SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 21/26 the crossexamination, he has stated that he remained admitted in the hospital for 8/10 days.
I fail to appreciate this contention of the ld. Counsel for the accused persons as to how it is beneficial to the accused persons and if PW2 remained admitted for about 3 days and if there is some contradiction, I am of the view that it does not go to the root of the case.
33.It is also contended by the accused persons that PW4 Smt.Bhagwati has categorically stated that she did not visit the spot. In the crossexamination, PW4 Smt.Bhagwati has stated that she had not seen the incident as well as the accused persons at the spot.
The statement of PW4 Smt.Bhagwati was first recorded on 03.08.2011 and this witness has stated that on 15.12.2007, she alongwith her husband reached at Kali Basti for preparing Election Card and her husband was caught hold by accused Satyaprakash. Accused Vikram gave iron bucket blow on the head of her husband and accused Vijay @ Noti gave Khukhari blow on the head of her husband. This witness has further stated that she raised alarm to save her husband. This witness has also corroborated the statement of PW2 Pappu. The witness has remained firm in her examination. The examination in chief of the witness was recorded on 03.08.2011 and she was cross examined on 16.4.2012 and 21.03.2013 i.e. after a gap of one year and seven months. I am of the view that this statement is not helpful to the accused persons, when PW4 Smt.Bhagwati has SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 22/26 given minute details of the incident. She was again cross examined by the ld. Counsel for the accused Vijay @ Noti on 12.08.2014. This witness categorically stated that she was present at the spot and all the accused persons were known to her earlier prior to the incident. I am of the view that both the statements of PW2 Pappu and PW4 Smt.Bhagwati affirm that PW2 Pappu was assaulted by the accused persons in furtherance of their common intention.
34.Sh.Dhruva Bhagat, Amicuscuriae has contended that there is no opinion of the doctor that injuries can be possible by Khukhari and iron bucket.
I have perused the MLC. The kind of weapon is mentioned as sharp/blunt. Thus, this fact is corroborated that the accused persons gave injuries with Khukhari as well as with iron bucket and legs and fist blows to PW2 Pappu.
35.It is also contended by the ld. Counsel for the accused persons that on the MLC, there is a cutting and after cutting the name of Ashok, name of the complainant is mentioned.
I fail to appreciate this contention of the ld. Counsel for the accused persons as PW16 Dr. Shefali has stated that MLC Ex.PW16/A is in her handwriting, the name of injured was mentioned as Ashok Kumar inadvertently. She struck this name and mentioned the name as Pappu S/o Saudan Singh. I am of the view that if father's name of PW2 is correctly mentioned and if inadvertently the name of Ashok was mentioned instead of Pappu and later on correct name of injured was mentioned in the MLC, SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 23/26 then this is not helpful to the accused persons.
36.It is contended by Sh.Dhruva Bhagat,ld.Amicuscuriae for the accused persons that there is no recovery of weapon of offence. Thus, they be acquitted.
I fail to appreciate this contention of the ld. Counsel for the accused persons. If weapons of offence are not recovered, even then, the statement of PW2 Pappu is sufficient to convict the accused persons when he had given minute details of the incident and had stated that accused Vijay @ Noti had given Khukhari blow on his right hand and he had also gave blow with Khukhari on his head. Accused Mahesh gave iron bucket blow on his head.
37.It is contended by the ld. Counsel for the accused persons that complainant is BC of the area and he was convicted on the statement of the accused persons namely Vijay @ Noti and Mahesh. Thus, the complainant was having inimical terms with the accused persons. He has reason to falsely implicate the accused persons.
I fail to appreciate this contention of the ld. Counsel for the accused persons as after the incident, the witness has also stated that on 26.09.2010, he was again beaten by the accused persons and he also placed on record a copy of FIR Ex. PW2/C and this FIR is lodged by Sani S/o Sh. Rajpal and in this FIR, it is also mentioned that accused persons gave injuries to PW2 on 26.09.2010. The accused persons in furtherance of their common intention caused injuries to PW2 and other persons. Rather the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 24/26 accused persons had motive to inflict injuries to the complainant as after the incident they had given injuries to PW2 again on 26.09.2014 and other persons. Thus, this contention carries no force.
38.It is worthwhile to mention here that PW2 Pappu received injuries on temporo parital region 6 x 2 cm. Bone deep brain matter exposed from this wound. As per the statement of PW14 SI Sanwar Mal that PW2 was taken to operation theater and he was operated. Taking into consideration that PW2 Pappu had received injuries on his head and due to the injuries, the brain matter of the complainant was exposed and taking into consideration that the complainant received injuries on his wrist i.e. clean lacerated wounds 4 x 2 cm., 1 x 2 cm., 12 x 0.5 cm., 3.5 x 0.5 cm. And 3 x 0.5 cm.over right wrist. I am of the view that all the accused persons had common intention to commit culpable homicide of PW2.
39.It is also contended by the ld. Counsel for the accused persons that the injuries on the person of the complainant are self inflicted and he has falsely implicated the accused persons.
I fail to appreciate this contention of the ld. Counsel of the accused persons as PW16 Dr.Shefali in clear terms has stated that the injuries received on the person of the complainant could not be self inflicted.
40.I am of the view that the prosecution is able to prove the case beyond reasonable doubt that all the accused persons had given injuries on the head and other parts of the body of the SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 25/26 complainant in furtherance of their common intention and thus, all the accused persons are hereby held guilty and convicted for the offence U/s 308/34 IPC.
They be heard on the Quantum of Sentence.
Ordered accordingly.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON:19.01.2015. ASJ05 (West), THC, Delhi.
SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 26/26IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF SESSIONS CASE NO.39/14 & Old No. 42/10 FIR No. 923/07 P.S. Uttam Nagar U/S 308/34 IPC STATE VERSUS (1) SH. VINOD @ KAKE S/O SH.CHIRANJI LAL, R/O H.NO. 586, T CAMP, KRISHNA COLONY, KALI BASTI, UTTAM NAGAR, NEW DELHI.
(2) VIJAY @ NOTI S/O SH.CHIRANJI LAL R/O H.NO. 546, T CAMP, KRISHNA COLONY, KALI BASTI, UTTAM NAGAR, DELHI (3) VIKRAM @ MAHESH S/O SWAMIDEEN R/O H.NO. 792, T CAMP, KALI BASTI, KRISHNA COLONY, UTTAM NAGAR, NEW DELHI.
Contd.....2.
SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 27/26: 2 :
ORDER ON SENTENCE :
22.01.2015 :
Present : Sh. Sanjay Kumar, Ld. Substitute Addl. P.P.for the State.
All Convicts are in J.C. Sh.A.A.Qureshi, ld. Counsel for convict Vijay @ Noti and proxy counsel for Sh.Dhruva Bhagat, ld.Amicuscuriae for convicts Vinod @ Kake and Vikram @ Mahesh.
Arguments on the point of Sentence have been advanced. Record perused.
Ld. Counsel for the convict Vijay @ Noti submits that he is aged about 34 years, married and having two sons aged about 9 years and 5 years. His parents are dependent upon him and there is no other male member in his family. He remained in J.C. for about 20 months. There is no previous conviction.
It is submitted on behalf of convict Vikram @ Mahesh that he is married and having two daughters aged about 12 years and 8 years. He is having old mother and his father has already expired.
It is submitted on behalf of convict Vinod @ Kake that he is unmarried and of a young age.
Contd.....3.SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 28/26
: 3 :
It is prayed on behalf of all the convicts that lenient view be taken.
On the other hand, Ld. Addl. P.P.for the State submits that all the accused persons are involved in other criminal cases including FIR no. 315/10 of PS Uttam Nagar, FIR no. 86/13 of PS Uttam Nagar and FIR no. 385/10 of PS Uttam Nagar. They are habitual offenders and no leniency should be shown towards them. Hence, it is prayed that all the convicts be awarded severe punishment as per law.
Taking into consideration that accused Vikram and Mahesh are involved in other cases and taking into consideration that PW2 Pappu was again beaten by the accused persons after the incident in the year 2010. I, sentence the convicts namely Vijay @ Noti and Vikram @ Mahesh to undergo Rigorous Imprisonment for 4 (four) years with fine of Rs.1,000/ for the offence punishable U/s 308/34 IPC and in default of payment of fine, to further undergo SI for two months. Convict Vinod @ Kake is sentenced to undergo Rigorous Imprisonment for 3 (three) years with fine of Rs.1,000/ for the offence punishable U/s 308/34 IPC and in default of payment of fine, to further undergo SI for two months.
Benefit of Section 428 Cr.P.C. be given to all the convicts.
Contd.....4.
SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 29/26: 4 :
Fine paid by convict Vikram @ Mahesh, however, other convicts namely Vinod @ Kake and Vijay @ Noti have not paid fine.
Copy of the Judgment and Order on Sentence be given to all the convicts free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON:22.01.2015. ASJ05 (West), THC, Delhi.SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 30/26
FOR TRIAL WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE (SECTION 383 OF THE CRIMINAL PROCEDURE CODE) IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 :
WEST DISTRICT, TIS HAZARI COURTS, DELHI SESSIONS CASE NO.39/14 & Old No. 42/10 FIR No. 923/07 P.S. Uttam Nagar U/S 308/34 IPC To The Jail Superintendent Tihar, Delhi.
In the abovesaid case, accused persons namely (1) Sh. Vinod @ Kake S/o Sh.Chiranji lal, R/o H.No. 586, T Camp, Krishna Colony, Kali Basti, Uttam Nagar, New Delhi, (2) Vijay @ Noti S/o Sh.Chiranji Lal R/o H.No. 546, T Camp, Krishna Colony, Kali Basti, Uttam Nagar, Delhi and (3) Vikram @ Mahesh S/o Swamideen R/o H.No. 792, T Camp, Kali Basti, Krishna Colony, Uttam Nagar, New Delhi are held guilty and convicted for the offence punishable U/s 308/34 IPC.
Convicts namely Vijay @ Noti and Vikram @ Mahesh are sentenced to undergo Rigorous Imprisonment for 4 (four) years with fine of Rs.1,000/ for the offence punishable U/s 308/34 IPC and in default of payment of fine, to further Contd....2.SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 31/26
: 2 :
undergo SI for two months. Convict Vinod @ Kake is sentenced to undergo Rigorous Imprisonment for 3 (three) years with fine of Rs. 1,000/ for the offence punishable U/s 308/34 IPC and in default of payment of fine, to further undergo SI for two months.
Benefit of Section 428 Cr.P.C. be given to all the convicts. Fine paid by convict Vikram @ Mahesh, however, other convicts namely Vinod @ Kake and Vijay @ Noti have not paid fine.
This is to authorize and require you, the said Superintendent, to receive the said convict into your custody in the said jail together with this warrant to undergo the sentence as awarded by this Court.
Given under my hand and the seal of the Court on this 22nd day of January, 2015.
(Naresh Kumar Malhotra) ASJ05/West/THC/Delhi 22.01.2015.SC No. 39/14 State Vs. Vinod @ Kake etc. Page No. 32/26