Delhi District Court
State vs . Sanjay Etc.Sc No. 68/10 1/8 on 1 August, 2011
ID No. 02403R0236612006
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 68/2010
Unique ID No. 02403R0236612006
FIR No. 608/09
U/s 308/34 IPC
PS : Sangam Vihar
State
Versus
Sanjay
s/o Sh. Kailash
r/o K1, House No. 1065, Gali No. 18,
Sangam Vihar, New Delhi .........Accused No. 1
Ranjeet
s/o Sh. Kailash
r/o K1, House No. 1065, Gali No. 18,
Sangam Vihar, New Delhi .........Accused No. 2
Instituted on: 19th November, 2011
Judgment reserved on: 29th July,2011
Judgment pronounced on: 01st August, 2011
J U D G M E N T
Accused in this case have been prosecuted for commission of offence punishable u/s 308 read with Section 34 Indian Penal Code. Briefly stated, case of the prosecution is that on receipt of DD No. 29 dated 28.10.2003 Police Post HBlock, Sangam Vihar as regards a quarrel, Asstt. Sub Inspector Fiaz Khan (PW4) alongwith Constable Sarvesh reached at the spot. They came to know that injured had been shifted to Police Post by PCR Van. Asstt. Sub Inspector Fiaz Khan (PW4) and Constable Sarvesh came back to Police Post, where Satender Sharma was found in injured condition. Injured State Vs. Sanjay etc.SC No. 68/10 1/8 ID No. 02403R0236612006 along with Constable Sensar Pal were sent to AIIMS Hosptial. He collected MLC of injured and handed over the same to ASI Fiaz Khan (PW4). Doctor opined nature of injuries on the person of Satender Sharma as 'Simple'. Injured was discharged from the hospital who was dropped by Constable Sensar Pal at his residence. The statement of injured was not recorded on 28th October, 2003, as he stated that he was not feeling well. On 29th October 2003, injured came to Police Post and his statement was recorded. Accused Sanjay and Ranjeet were arrested. On completion of investigation, IO prepared the chargesheet and filed the same in the court of Metropolitan Magistrate on 29 th April, 2006. Case was committed to the court of Sessions on 22 nd June, 2006. Charges u/s 308 r/w Section 34 IPC were served to the accused persons on 18th March, 2011 to which they pleaded not guilty and claimed trial.
2. In order to prove the accusations against the accused, prosecution examined six witnesses.
(i) Sh.Satender Sharma (PW1); (ii) Sh. Mohd. Shakur (PW3); (iii) Doctor Chetan Merchant (PW5); (iv) Retired SubInspector Fiaz Khan (PW4);
(v) Head Constable Suresh Chand (PW2); (vi) Assistant SubInspector Sarita (PW6).
4. On conclusion of prosecution evidence, incriminating evidence on record was put to the accused u/s 313 Cr.P.C. Accused pleaded innocence and false implication.
5. I have heard submissions advanced by Sh. R. K. Gurjar, Ld. Additional PP for the State and Sh. S. N. S. Sengar, Ld. counsel for the accused.
6. Points which emerged for determination in this case are :
(i) Whether the accused persons caused injuries to Satender Sharma with a wooden 'Danda'?State Vs. Sanjay etc.SC No. 68/10 2/8
ID No. 02403R0236612006
(ii) Whether the injuries were caused by accused with the requisite intention or knowledge so as to be held guilty for committing culpable homicide not amounting to murder ?
7. In order to find out answers to the aforesaid questions, I would examine the evidence adduced by the prosecution witnesses. Sh. Satender Sharma (PW1), the complainant deposed that on 23.08.2003 a quarrel took place between him and accused Sanjay. On 28.03.2003 at about 10:30 pm, when he was passing through, in front of house of accused persons. After seeing him, Ranjeet told accused Sanjay that Sharma is passing through, who immediately brought a Danda, whereupon Ranjeet caught hold of him and Sanjay hit Danda on his head and blood started oozing out. During this process, he tried to escape from the clutches of accused persons, but Ranjeet caught hold of him and Sanjay beat him with a lathi. He fell down and became unconscious. He sustained injury on his head, arm and left leg.
In the cross examination, PW1 admitted that he remained in Judicial Custody in a case registered by Special Cell on 15.01.2009. He admitted that a case of extortion as well as other criminal cases were registered in Delhi against him. PW1 deposed that police obtained his signatures under pressure on a blank paper and thereafter, contents were written by the police of their own on Ex. PW1/A. PW1 deposed that he was taken to hospital in a three wheeler along with accused Ranjeet. He admitted that there was a gadda (pit) in the gali, which was dug during the occasion of Chhat Pooja. PW1 admitted that after he sustained injury, it was accused Ranjeet who called the police and brought the police to his house.
PW1 was crossexamined by Ld. Addl. PP. In crossexamination, he contradicted himself by now testifying that police did not obtain his signatures on blank paper on the complaint (Ex. PW1/A). In his cross State Vs. Sanjay etc.SC No. 68/10 3/8 ID No. 02403R0236612006 examination by Ld. Defence counsel, PW1 stated that he knew both the accused for the last eight /ten years. He admitted that he stated to the police that both accused came out from their house with a lathi. PW1 was confronted with his previous statement (Ex. PW1/A), where it was not so recorded. PW1 stated that he had not made any complaint against the accused in any PS alleging that accused persons were dealing with ganja. PW1 deposed that a 'keertan' was being celebrated in the house of the accused and many public persons and persons who participated in the keertan, had seen the incident. PW1 deposed that he was residing in the same mohalla, therefore, many persons who gathered there knew him. PW1 denied the suggestion that he used to consume ganja and in the intoxicated state, he fell down in a pit (gadda) and sustained injuries. Police was called and Police came at his residence and was taken to the hospital by the police. PW1 denied the suggestion that on 23.08.2003, he had a quarrel with Sanjay. He was confronted with complaint (Ex. PW1/A) of portion A to A, where it was so recorded.
Mohd. Shakur (PW3), knew accused Sanjay and Ranjeet, who were residing at 18Block, Sangam Vihar area. On the day of incident he saw that a crowd had gathered at Mangal Bazaar in Sangam Vihar. He stopped to see as to what was the matter, but before he came to know as to what had happened. In the crossexamination, PW3 denied the suggestion that Ranjeet had caught hold of Satender Sharma and Sanjay hit a danda on his head. PW3 denied the suggestion that he was deposing falsely as he had been won over by the accused persons.
Assistant SubInspector Fiaz Khan (PW4), Investigating Officer, prepared several documents during the course of investigation. PW4 made endorsement on the statement of complainant. He placed on record site plan State Vs. Sanjay etc.SC No. 68/10 4/8 ID No. 02403R0236612006 (Ex.PW4/D) and arrest memos of accused. In crossexamination, PW4 deposed that he did not record the statement of the public person, who informed him that the injured was taken to the police post by the PCR van. PW4 admitted that there were other built up houses adjacent to house no. G2/498/18, Mangal Bazar, Sangam Vihar from where danda was recovered. Many people by were passing through the road and neighbours were present at their houses when the danda was recovered in the afternoon but despite that no public witness was joined at the time of alleged recovery. Assistant Sub Inspector Sarita (PW6) recorded the FIR (Ex. PW4/C) on the basis of rukka (Ex. PW4/B) sent by IO/Asstt. Sub Inspector Faiyaj Khan.
Doctor Chetan Merchant (PW5), appeared in the witness box to prove the MLC No. 129110/03 dated 29.10.2003 of complainant (Ex. PW4/J) prepared by doctor Arunoday who gave opinion on the MLC as 'simple blunt'. In his crossexamination, PW5 admitted that MLC of Satender was not prepared in his presence.
8. Sh. Sengar, Ld. Counsel for the accused submitted that the material witness Laddoo Chowdhary has not appeared in the witness box whereas PW3 Mohd. Shakur, who was allegedly an independent witness has not supported the case of the prosecution. He submits that as per the FIR, the case of the complainant was that Ranjeet had caught hold of him and hit him with danda and then he slipped and fell down in a gadha, whereas in his testimony complainant/injured Surender (PW1) deposed that accused pushed him and fell down in a hole which was dug for giving of ark on the day of "Chhat Pooja". He categorically stated that police obtained his signatures on blank papers and contents at their own hand. PW1 deposed that he was taken to the hospital in a TSR by Ranjeet. Complainant did not call the Police. PW1 admitted that accused Ranjeet called the police. Ld. Counsel further submits State Vs. Sanjay etc.SC No. 68/10 5/8 ID No. 02403R0236612006 that it is not probable that Ranjeet would hit complainant and thereafter, would take him to the hospital and would then inform the police. PW1 admitted that a case of extortion and other criminal cases registered against him, were pending in the different courts of Delhi. Ld. Counsel further submits that the Doctor (PW5) who prepared MLC has not appeared in the witness box. He submits that in view of these circumstances, case of prosecution is full of doubts.
9. The legal position is well settled that the court has to see the material particulars and the ingredient of the offence with which accused are charged. In order to prove an offence u/s 308 IPC, it must be proved :
● that the accused committed an act.
● that the said act was committed with the intention or of knowledge to com
mit culpable homicide not amounting to murder.
● that the offence was committed in such circumstances if the accused by that
act had caused the death, he would have been guilty of culpable homicide.
Thus, Act should be shown to have been committed, with the intention or knowledge to commit culpable homicide not amounting to murder. Intention is the question of fact which has to be gathered from the act committed by the accused and knowledge is the awareness of the consequences of the act. It must be with the knowledge that specified consequences would result or could result by doing an act.
10. On perusal of record, I find that prosecution has failed to establish beyond doubt any of the aforesaid ingredients. Admittedly, independent witness Laddoo Chaudhary has not appeared in the witness and other material witness Mohd. Shakur has not supported the case of the prosecution. In his complaint , Satender Sharma (PW1) stated that he fell down in the gadda State Vs. Sanjay etc.SC No. 68/10 6/8 ID No. 02403R0236612006 (pit), whereas in his testimony in the court, he deposed that he was pushed in the gadda (pit) by the accused. PW1 admitted that, it was accused Ranjeet, who had informed the police by dialing number 100. At one point of time PW1 deposed that police had obtained his signatures on the blank papers under pressure and thereafter, police recorded the contents therein, but later on he deposed that police had recorded is statement. PW1 admitted that other cases of extortion and many criminal cases were pending against him. Doctor, who prepared the MLC of injured has not appeared in the witness box. MLC shows Laceration on head, Laceration on left leg, pain and swelling on left forearm pain and redness on chest and no internal injury on chest and abdomen.
It has not been established beyond doubt that injuries sustained by PW1, could not have been sustained by falling in a gadda (pit). The complainant (PW1) has stated that he had fell down in a gadda. Injured has not disclosed the name of assailant to the doctor. The recovery of danda is also doubtful. Constable Sensar Pal who was the witness to the seizure memo (Ex. PW4/I), did not appear in the witness box. Investigating Officer admitted that public persons passing on the road were not joined at the alleged recovery of danda. There is no satisfactory reason why neighbours who were witnessing the incident were not examined. The alleged incident took place at 10:30pm on 28.10.2003 but FIR was lodged at 3:35pm on 29.10.2003. There is no satisfactory explanation for delay. Possibility of improvement and afterthought cannot be ruled out. Investigating officer (PW4) deposed that injured Satender Sharma had not given any reason for not making statement on 28.10.2003. PW4 stated that injured was discharged from the hospital and dropped at his residence who stated that he fell down. In the cross examination, he admitted that this statement "that he was not feeling fell, State Vs. Sanjay etc.SC No. 68/10 7/8 ID No. 02403R0236612006 therefore, he was dropped at his residence by Constable Sensar Pal" has not been stated in the statement (Ex. PW1/A) of Satender Sharma. There is no forensic evidence on record to show that injuries sustained by Satender Sharma (PW1) could not have been caused by falling in the gadda (pit) or could be caused by danda. On considering the totality of aforesaid facts and circumstances, I hold that prosecution has failed to prove that the accused persons caused injuries to complainant Satender Sharma with a wooden 'Danda'. Prosecution has failed to prove the charges against the accused persons beyond reasonable doubt. They are entitled to benefit of doubt. Resultantly, accused persons are hereby acquitted from the charges. File be consigned to record room.
announced in the
open court on
01st August, 2011 (VINAY KUMAR KHANNA)
Additional Sessions Judge04
(SouthEast) Saket/New Delhi
State Vs. Sanjay etc.SC No. 68/10 8/8
ID No. 02403R0236612006
State vs Sanjay etc.
SC No. 68/10
FIR No. 609/03
PS Sangam Vihar
01.08.2011
Present: Sh. R. K. Gurjar Ld. Addl. PP for the State.
Both the accused on bail with counsel Sh. Y. N. S. Sengar. Vide separate judgment announced in the open court, both accused are acquitted from the charges. The bonds which have been furnished by both the accused shall remain valid for a period of six months as required u/s 437A Cr.P.C..
File be consigned to Record Room.
(Vinay Kumar Khanna) Additional Sessions Judge 04 (SE) Saket : New Delhi : 01.08.2011 State Vs. Sanjay etc.SC No. 68/10 9/8