Delhi District Court
State vs . Babulal And Ors. on 21 December, 2020
SC No. 512/17
State Vs. Babulal and Ors.
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
SC No. 512/17
State Versus 1) Babulal
S/o Sh. Nanak Ram
R/o H.No. B4/156, Sector20,
Delhi
2) Umrao
S/o Sh. Nanak Ram
R/o H.No. B4/174, Sector20,
Delhi
3) Santra
W/o Sh. Umrao
R/o H.No. B4/174, Sector20,
Delhi
FIR No. 470/15
PS Begumpur
under Section 308/341/34 IPC
Date of institution of the case : 18.08.2017
Reserved for judgement : 05.12.2020
Date of judgement : 21.12.2020
JUDGMENT
1. The brief facts of the case are like this. On 30.04.2015 FIR No. 470/15 PS Begumpur Page No. 1 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
DD No. 81B was recorded at PS, Begumpur which was handed over to ASI Ramavtar who alongwith Ct. Sandeep reached at Veer Bazar Road, Sector20 Rohini where they came to know that injured has been removed SGM Hospital. No eye witness was found on the spot. They went to SGM hospital where MLC of injured Mohit was taken. The injured was found under treatment who did not give his statement. DD No. 81B was kept pending. On 3.05.2015 ASI Ramavtar alongwith Ct. Sandeep went to House No. C1/255, Sector 20, Rohini, Delhi where injured Mohit met them who gave his statement to the police to the effect that he is working as helper in a shop of doctor at Sector20 Rohini. Babulal and Umrao Singh reside at B4, Sector20, Rohini. A quarrel has taken place with them around two years ago qua which settlement took place. On 23.04.2015 his Bhabhi Monika and his sister Priyanka were on the first floor of the house. Santra wife of Umrao was on the roof of other house in front of their house who was hurling abuses to his Bhabhi and FIR No. 470/15 PS Begumpur Page No. 2 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
sister. His Bhabhi told him about this upon which he went to the house of Santra to make her understand. He reached there at 11.15 pm. Santra and Umrao Singh came down stairs and gave abuses started beating him. He tried to flee from there but both of them caught him and blocked his way. Babu Lal threw a brick on his head from the second floor of the house. The blood oozed out. His uncle Mukesh brought him to the hospital. He was under pain as a result he could not give his statement. His statement was recorded which led to the registration of the FIR. Usual investigation was carried out. The charge sheet was filed u/s 308/341/34 IPC against the accused.
2. The accused have put their appearance. The copies of challan and other documents were supplied to the accused. On 11.08.2017, the case file was committed to the court of sessions by learned ACMM, North West, Delhi. FIR No. 470/15 PS Begumpur Page No. 3 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
3. On 09.10.2017 the charge u/s 308/341/34 IPC was framed against the accused after hearing learned Addl. PP for the State and ld. Defence counsel to which they pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The prosecution evidence was closed. The accused were examined u/s 313 CrPC. Their defence is of denial simpliciter. However, no defence evidence has been led.
4. PW1 Mohit stated that in 2015 he was working in a factory near his house. The accused are residing near his house. The altercation with the accused had earlier taken place and matter was compromised. The usual altercations have taken place with the accused after that.
5. On 30.04.2015 accused were abusing his family members. He went to their house to make them understand. Accused Santra and Umrao caught him. Accused Babulal threw a brick on his head from the second floor of his house. FIR No. 470/15 PS Begumpur Page No. 4 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
He tried to flee from the clutches of the accused Umrao and Santra but they blocked his way. The blood oozed out from his head. He become unsconscious. He does not know who has removed him to hospital. He regained consciousness in SGM Hospital. He could not give statement to the police as he was not in a fit state of mind in the hospital. On 03.05.2015 his statement Ex.PW1/A was recorded at his house which bears his signature at point A. Site plan Ex.PW1/B was prepared at his instance. During crossexamination, he stated that quarrel between his father and accused has taken place around one year ago. He cannot tell whether his father has taken Rs. 20000/ from accused Babulal. The suggestion is denied that a panchayat was held and his father agreed to pay Rs. 20000/ to accused Babulal or that his father has called the accused on the day of incident to take a sum of Rs. 20000/ to them or that he has not seen the person who has given brick blow to him or that accused Santra and Umrao did not catch him or accused Babulal did not give brick blow FIR No. 470/15 PS Begumpur Page No. 5 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
to him from second floor or that he has falsely implicated the accused so that his father should not pay Rs. 20000/ to accused Babulal.
6. PW2 Ct. Anil Kumar has proved DD No. 81B Ex.PW2/A.
7. PW3 Smt Monika stated that on 30.04.2015 she alongwith her Nanad was on the roof of her house. A quarrel of her father in law has taken place with accused Babulal around two years ago. On 30.04.2015 the accused Santra was on the roof of her house who started abusing her. She alongwith her nanad came down stairs and informed Mohit who went to the house of accused at around 1111.15 pm. Accused Santra and Umrao started beating Mohit with kicks and fist. Accused Babulal was on the third floor of his house and threw a brick by aiming on the head of Mohit as a result Mohit sustained severe head injury. The blood oozed out. PCR FIR No. 470/15 PS Begumpur Page No. 6 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
van came and removed Mohit to hospital. During cross examination, she stated that on 01.07.2015 her statement was recorded. The suggestion is denied that police have not recorded her statement on 01.07.2015 or she had given her statement to the police at the instance of her father in law or has deposed in the court as per instructions of her father in law. There is sufficient street light in the gali. The suggestion is denied that there is no sufficient light in the gali. The house of accused is opposite of their house. She has no knowledge regarding any case filed by the daughter of accused Umrao against Mohit. The suggestion is denied that accused Babulal has not pelted any brick on the Mohit or her father in law had called the accused to his house for making some payment or she is deposing falsely so that her father in law should not pay Rs. 20000/ to the accused Babulal.
8. PW4 Ms. Priyanka is sister of PW1. She has corroborated the version of PW3 but further added that FIR No. 470/15 PS Begumpur Page No. 7 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
accused Babulal has thrown the brick from the first floor of the house. During crossexamination she stated that her statement was recorded after 34 days of the incident. She alongwith her Bhabhi was standing on the roof of the house on the day of incident. She does not know whether her father had called accused Babulal to his house. The suggestion is denied that she has not seen the person who has given brick blow to her brother Mohit or accused did not give beatings to her brother or accused have been falsely implicated so that her father never wanted to pay Rs. 20000/ to accused Babulal.
9. PW5 Mukesh stated that on 30.04.2015 he was at his house. One boy came to his house and told that a quarrel between Mohit and accused has taken place. He reached there and saw a huge crowd. He noticed that accused Babu Lal threw a brick on the head of Mohit from the first floor of his house. Accused Santra and Umrao caught Mohit when FIR No. 470/15 PS Begumpur Page No. 8 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
accused Babulal threw the brick. The upper front teeth of Mohit were broken. The PCR was called. He removed the injured to SGM Hospital in a champion auto. His statement was recorded. During crossexamination, he admitted that he is real brother of Daulat Ram and injured Mohit is his nephew. He admitted that incident did not take place in is presence. Injured was lying on the road in front of the house of accused Babulal in an injured condition when he reached there. The suggestion is denied that he did not visit the spot.
10. PW6 ASI Ram Charan has proved FIR Ex.PW6/A, endorsement Ex.PW6/B on the rukka and certificate Ex.PW6/C u/s 65B of the Evidence Act.
11. PW7 Dr. Rijul Saini stated that Dr. Shashi Kant SR and Dr. Shekhar Shivam SR have left the services of hospital whose whereabouts are not known. He can identify the handwriting and signature of Dr. Shashi Kant and Dr. FIR No. 470/15 PS Begumpur Page No. 9 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
Shekhar Shivam SR as he has worked with them. The MLC of injured is Ex.PW7/A. MLC bears the notes of Dr.Shashikant from X to X1. Y to Y1 on MLC is under handwriting of Dr.Shekhar Shivam. The nature of injury is simple. During crossexamination, he admitted that injury CLW on the frontal region may be due to self fall. There is nothing mentioned about the head injury in the note sheet from X to X1 and Y to Y1.
12. PW8 Dr. Kuntal Chaudhary stated that he has been deputed by Medical Superintendent to depose on behalf of Dr. Mani Singh. Dr. Mani has left the services of hospital whose whereabouts are not known. He is well conversant with the handwriting and signature of Dr. Mani as he has seen her writing and signing. Dr. Mani has given her opinion regarding nature of injuries as grievious because there was fracture of two teeth with respect to 11 and 12 and pulp was also exposed. The remarks are Z to Z1 in MLC Ex.PW7/A. He FIR No. 470/15 PS Begumpur Page No. 10 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
identifies the signature and handwriting of Dr. Mani from portion Z to Z1. During crossexamination, he admitted that such injury can be received if one fall on a hard object with his face downwards.
13. PW9 Dr. Vipin Dabas stated that on 30.04.2015 at 11.55 pm, Mohit was brought by Mukesh with alleged history of physical assault. Mohit was examined by Dr. Anvit, Junior Resident, under his supervision. Dr. Anvit has left the services of hospital whose whereabouts are not known. He can identify his handwriting and signature as he has seen him while writing and signing. CLW of size 4 cm x .5 cm x .5 cm on the mid frontal region partially broken upper to incisor two teeth were found. XRay of skull was advised. On 02.06.2015 he has examined MLC and gave opinion regarding nature of injury as grievous in nature because there was fracture of two teeth. His opinion is from C to C1 on Ex.PW7/A. The signature of Dr. Anvit is at point D on FIR No. 470/15 PS Begumpur Page No. 11 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
MLC Ex.PW7/A. During crossexamination, he admitted that nature of injury is simple as per surgical opinion.
14. PW11 ASI Ram Avtar is IO of the case. He stated that on 30.04.2015 at 11.40 pm DD no. 81B was assigned to him upon which he alongwith PW10 Ct. Sandeep reached at Veer Bazar Road, Sector20, Rohini where no eye witness met them. They went to SGM Hospital where injured was found admitted. MLC of injured was collected. Mohit told him that he is getting medical treatment and will give his statement lateron. DD No. 81B was kept pending.
15. On 03.05.2015 they went to the house of injured Mohit where his statement Ex.PW1/A was recorded. Rukka Ex.PW1/A was prepared and sent to police station through PW10 for registration of the case. Site plan Ex.PW1/B was prepared at the instance of Mohit. PW10 came back with copy of FIR and original rukka. Mukesh came to the house of FIR No. 470/15 PS Begumpur Page No. 12 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
injured whose statement was recorded. Accused were searched but in vain. They came back to police station. Statement of Ct. Sandeep was recorded in the police station. He has obtained the result on the MLC. The nature of injuries was grievous. The accuse have taken anticipatory bail from the court. On 19.06.2015 accused Umrao and Santra came to PS who were interrogated and arrested vide memos Ex.PW11/B and C. Their disclosure statements Ex.PW11/D and E were recorded. Both of them were admitted to bail on their furnishing surety bond Ex.PW11/F and G. On 15.07.2015 accused Babulal came to Police Station who arrested vide memo Ex.PW11/H. His disclosure statement Ex.PW11/I was recorded. Pointing Out Memo Ex.PW11/J of the place of occurrence was prepared at the instance of accused Babulal. The bricks used in the commission of offence were searched but in vain. Non recovery memo Ex.PW11/K of bricks was prepared. Accused Babulal was admitted to bail on furnishing surety bond Ex.PW11/L. FIR No. 470/15 PS Begumpur Page No. 13 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
Statement of witnesses u/s 161 CrPC were recorded. Charge sheet was prepared and filed in the court. He has identified the accused. During crossexamination, he admitted that he did not record the statement of any independent public person. He has made queries from the locality and came to know that parties used to quarrel even prior to this incident. He had asked neighbours of the house no. 174, B4 Block, Sector20, Rohini to join the investigation but none of them agreed. The suggestion is denied that no such incident has taken place that is why he did not make any neighbour as witness or that accused are falsely implicated. PW10 Ct. Sandeep Kumar has corroborated the version of PW11.
16. Ld. Addl. PP for the State submitted that accused Babulal has thrown a brick on the head of injured Mohit which could have been proved fatal and coaccused have given beatings to him as a result two teeth were broken. He further submitted that injured Mohit has sustained grievous injuries. He further submitted that injuries were caused with FIR No. 470/15 PS Begumpur Page No. 14 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
such intention and knowledge that the accused would have caused the death of injured by such an act. He further submitted that prosecution witnesses have fully corroborated the case of prosecution and their testimony can be relied upon.
17. Ld. defence counsel contended that incident as projected by the prosecution has not taken place. He further submitted that it is quite improbable that a person will sustain only simple injury in case a brick is thrown on the head of a person. He further submitted that injured has fallen down as a result his teeth were broken. He further submitted that there are number of contradictions in the testimony of prosecution witnesses which make their testimony doubtful. He further submitted that no independent witness has been examined and only close relatives of the injured have been examined. He further submitted that testimony of close relatives should not be relied upon.
FIR No. 470/15 PS Begumpur Page No. 15 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
18. Heard and perused the record.
19. In order to constitute an offence u/s 308 IPC, it has to be proved that the act committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death he would have been guilty of culpable homicide. Intention or knowledge, on the part of accused, is to be deduced from the circumstances in which injuries have been caused and also as to the nature of injuries and the portion of the body where such injuries have been inflicted.
20. The prosecution has examined 11 witnesses in order to prove its case whereas accused have not led any evidence in support of their defence.
FIR No. 470/15 PS Begumpur Page No. 16 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
21. PW1 is an injured. PW3 is Bhabhi of PW1. PW4 is sister of PW1. PW5 is uncle of PW1. PW7, PW8 and PW9 are doctors. PW11 is IO of the case.
22. The testimony of PW3 and PW4 shows that they were standing on the roof of their house. The accused Santra was on the roof of her house which is opposite to their house. Their testimony further shows that accused Santra started abusing them upon which both of them came down stairs. No question or suggestion is put to them that accused Santra did not hurl abuses to them meaning thereby that their testimony to this effect has gone unrebutted.
23. The testimony of PW3 and PW4 further shows that both of them has informed PW1 that accused Santra has given abuses. PW1 went to the house of accused at around 11.15 pm to make them understand. No question or suggestion is put to them that PW1 did not come to the house FIR No. 470/15 PS Begumpur Page No. 17 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
of the accused meaning thereby that they have admitted that PW1 has come to their house.
24. The testimony of PW1 shows that accused Santra and Umrao caught him. Accused Babulal has thrown a brick from the second floor of the house on his head. He tried to escape from the clutches of accused Santra and Umrao but both of them restrained him. The blood oozed out from the head injury. PW3 and PW4 have corroborated the version of PW1 and further added that accused Santra and Umrao gave him beatings with kicks and fists. Both of them are consistent in their version to this effect. PW5 is also examined as an eye witness. He is not an eye witness which is clear from the crossexamination as he has categorically admitted that incident did not take place in his presence though he has reached on the spot and removed PW1 to hospital. This fact finds corroboration from MLC Ex.PW7/A which shows that injured was brought to hospital by FIR No. 470/15 PS Begumpur Page No. 18 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
Mukesh.
25. The accused have pointed out contradictions in the testimony of PW3 and PW4. PW3 has stated that brick was thrown from the third floor whereas PW4 has stated that brick was thrown from the first floor. To my mind, this is a minor contradiction which does not have any effect on the merits of the case as the material point is whether accused Babu Lal has thrown brick on the head of PW1 or not. Both the witnesses are consistent that brick was thrown on the head of PW1 by accused Babulal.
26. The accused has pointed out the contradiction in the testimony of PW1 from that of case set up by the prosecution. The accused have pointed out that PW1 has nowhere deposed that accused Santra and Umrao have given him beatings with kicks and fists whereas same is deposed by PW3 and PW4 as such the omission to this fact amounts to FIR No. 470/15 PS Begumpur Page No. 19 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
contradiction which makes his testimony doubtful. I have considered the contradiction highlighted by the accused.
27. The accused have nowhere put any question to him during the course of cross examination that accused Santra and Umrao did not give him beatings with kicks and fists. The contradiction should have been highlighted by the accused during the examination of PW1 but no such step was taken by the accused. The accused cannot draw any benefit out of this contradiction.
28. The defence of the accused is that father of PW1 has agreed to make a payment of Rs. 20000/ in the panchayat to the accused upon which father of PW1 has called the accused Babulal to his house to make the payment of Rs. 20000/. The accused have been falsely implicated so that father of the complainant should not make the payment. The defence is without any merit. The accused have not FIR No. 470/15 PS Begumpur Page No. 20 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
examined any person from the panchayat to show that the father of PW1 has agreed to make a payment of Rs. 20000/. The non examination of any witness to this effect calls for an adverse inference against the accused. There is no witness on record to show that accused Babulal was called by the father of PW1 to his house to make the payment. The defence is without any merit.
29. The accused have taken the defence that testimony of PW1 cannot be relied upon as PW3 and PW4 are his close relatives and no independent witness has been examined. The defence is without any merits. PW3 and 4 are closely related to PW1 but that does not mean that they have any reason to implicate the accused. There is nothing in their crossexamination to show that they have any motive to implicate the accused. The association of independent witnesses is not where the requirement of law. The testimony of witnesses can be relied upon even in the absence of FIR No. 470/15 PS Begumpur Page No. 21 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
independent witnesses provided the same is cogent and convincing. No major contradiction has been brought in the crossexamination of PW3 and 4 to bring their testimony in zone of doubt so the argument is devoid of any merit.
30. PW1 was surgically examined by Dr. Shashi Kant and opinion on the injury from surgical side was given by Dr. Shekhar Shivam. PW1 was medically examined by Dr. Anvit who has prepared MLC Ex.PW7/A. The dental opinion was given by Dr. Mani who has left the services of hospital. The opinion is proved by PW8. The opinion on the nature of injury qua dental is grievous. MLC shows that PW1 has sustained simple injuries as well as grievous injuries as two teeth were broken.
31. It is clear from the entire evidence on record that PW3 and PW4 were standing on the roof of their house whereas accused Santra on the roof of her house. Accused FIR No. 470/15 PS Begumpur Page No. 22 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
Santra hurled abuses to PW3 and PW4 which was brought to the notice of PW1 by both of them. PW1 went to the house of accused to make them understand but accused Santra and Umrao caught him and gave beatings to him and accused Babu Lal threw a brick over his head from the second floor of his house. He tried to escape from the clutches of accused Santra and Umrao but he was beaten. The testimonies of Pws to this fact is consistent. PW1 has sustained simple as well as grievous injuries.
32. The issue is whether the offence falls within the purview of section 308 IPC or not.
33. The offence in question does not come within the ambit of Section 308 IPC. It is clear from the evidence on record that previously the quarrel has taken place between the parties around two years ago and matter was compromised lateron. Some hot altercation used to take place FIR No. 470/15 PS Begumpur Page No. 23 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
between them. The incident between the parties was not premeditated as incident has taken place when PW1 has gone to the house of accused to make them understand why accused Santra has hurled abuses to PW3 and PW4. The prosecution has examined PW3 and PW4 as main eye witnesses. No weapon of offence allegedly used in the incident has been produced by the prosecution. The head injury is simple. Two teeth were broken and said injury was found grievous. The doctor has not stated that injury would have caused the death of PW1. The intention or knowledge has to be ascertained from the nature of injuries suffered by the injured. All these facts give rise to only one inference that there was no intention or knowledge on the part of accused to cause the death of PW1. To my mind, the offence comes within the ambit of Section 325 IPC.
34. The testimony of injured has accorded a special status in the law. The injuries to the injured show his presence at the scene of crime because such witness will not FIR No. 470/15 PS Begumpur Page No. 24 / 25 under Section 308/341/34 IPC SC No. 512/17 State Vs. Babulal and Ors.
let his real assailants to go scotfree. No major contradictions has come in the testimony of PW1, PW3 and PW4. There is nothing on the record to view their testimony with the aid of spectacles. Hence there testimony is relied upon.
35. The entire evidence on the file shows that prosecution has failed to bring the case within the ambit of Section 308 IPC. The entire evidence on the file shows that prosecution has proved the case against the accused for the offence u/s 325/341/34 IPC. The accused are held guilty u/s 325/341/34 IPC and accordingly convicted.
36. Let the file to come up for arguments on quantum of sentence on 15.01.2021.
ANNOUNCED IN THE OPEN COURT IN PHYSICAL HEARING Digitally signed by SURESH ON 21 DECEMBER, 2020 st KUMAR SURESH KUMAR GUPTA Date: 2020.12.21 GUPTA 16:17:25 +0530 (SURESH KUMAR GUPTA) PRINCIPAL DISTRICT & SESSIONS JUDGE NORTH WEST DISTRICT ROHINI COURTS, DELHI FIR No. 470/15 PS Begumpur Page No. 25 / 25 under Section 308/341/34 IPC