Delhi District Court
State vs Naveen Kumar Hudda on 27 November, 2012
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE, OUTER01, ROHINI, DELHI
Sessions Case No:82/11
FIR No: 319/07
Police Station : Prashant Vihar
U/s : 308 IPC
State
Versus
1. Naveen Kumar Hudda,
S/o Shri Om Parkash Hudda,
R/o H.No.A5G, Vijeta Vihar Apartments,
Sector13, Rohini, Delhi.
2. Yash,
S/o Shri Jeevan Singh,
R/o H.No.A35G, Vijeta Vihar Apartments,
Sector13, Rohini, Delhi.
... Accused
Date of Institution : 26.9.2011
Date of Argument : 20.11.2012.
Date of Decision : 27.11.2012.
JUDGMENT
1. Brief facts of the prosecution case are that on 18.5.07 at 11.40 pm somebody informed on phone at PS Prashant State V Naveen Kumar Hudda & anr.
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Vihar about the quarrel at DC Chowk. Said information was recorded vide DD no.34A and DD was assigned to SI Mahender Singh. He reached at the spot and came to know that injured has already been taken to Jaipur Golden Hospital. Thereafter he reached there and came to know that one person with the name of Arun Joshi came in the hospital but his friend had taken him to Baba Saheb Ambedkar Hospital. Thereafter he reached at Baba Saheb Ambedkar Hospital and found the injured Arun Joshi admitted in the hospital. He collected his MLC in which it was mentioned that patient is unfit for statement and no eye witness was found. He kept the DD no.34A pending.
2. Thereafter on 19.5.07, he recorded the statement of injured Arun Joshi. In his statement, Arjun Joshi stated that on 18.5.07 at about 10 pm he was present at STD booth when one person namely Naveen Hudda asked him to accompany with him in quarreling (badmashi) with other person and on his refusal, Naveen Hudda along with his accompanied Yash gave him beatings. Naveen Hudda hit on his head with a danda lying near STD Booth and other person caught his collar. Two public persons took him to Jaipur State V Naveen Kumar Hudda & anr.
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Golden Hospital and from there he called his friend Ankit, who took him to Baba Saheb Ambedkar Hospital.
SI Mahender Singh prepared rukka on the basis of said statement and got the FIR no.319/07 registered in PS Prashant Vihar. He prepared the site plan at the instance of complainant. On 8.7.07 the accused Yash was arrested and on 21.12.07 accused Naveen was arrested. He obtained the opinion of doctor on the MLC. After completion of investigation challan was prepared u/s 308 IPC, filed in the court and accused were put to trial.
3. After compliance of provisions u/s 207 Cr.P.C. , Ld. MM committed the case which was ultimately assigned to this court.
4. Vide order dated 18.11.11, charge u/s 308/34 IPC was framed against both the accused.
5. In order to prove its case, the prosecution has examined 07 witnesses. PW1 HC Rishi Parkash is the duty officer who recorded the FIR; PW2 Arun Joshi is the injured/complainant; PW3 Ankit Yadav had taken the injured to Baba Saheb Ambedkar Hospital; PW4 HC Mahavir joined the investigation with SI Mahender Singh; PW5 (Rt.) SI Mahender Singh is the IO and State V Naveen Kumar Hudda & anr.
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conducted the investigation; PW6 Dr. Sanjay Sharma proved the MLC of injured prepared by Dr. Deepti Bhalla; and PW7 SI Rohtash is the subsequent IO and recorded the supplementary statement of injured Arun Joshi and after completion of investigation prepared the challan and filed before the concerned court.
6. The prosecution proved the endorsement on rukka as ExPW1/A; computerized copy of FIR as ExPW1/B; statement of injured as ExPW2/A; arrest memos of accused Yash & Naveen as ExPW2/B & ExPW2/C respectively; confessional statements of accused Yash and Naveen as ExPW4/A & ExPW4/B respectively; rukka as ExPW5/A; site plan as ExPW5/B; and MLC of injured as ExPW6/A.
7. The statements of accused u/s 313 Cr.P.C. were recorded in which all the incriminating evidence was put to them but they denied the same. Both accused stated that they are innocent and falsely implicated in this case. Both the accused preferred to lead defence evidence. In defence evidence, both the accused examined Mukesh as DW1 who is having STD Booth at DC Chowk and stated that in his presence no quarrel ever took place in front of State V Naveen Kumar Hudda & anr.
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his shop between Arun Joshi and accused persons. In his cross examination by Ld. APP, DW1 stated that he is not having any documentary proof to show that he is running the shop at DC Chowk. He denied the suggestion that he had come in the court at the instance of accused persons to save them and deposed falsely.
8. Arguments head from Shri S.C. Sroai, Ld. APP for the State and Shri Anil Kulhari, Ld. Counsel for both the accused.
9. It is argued by the Ld. Adl.PP that both the accused in furtherance of their common intention gave danda blows on the head of the complainant Arun Joshi with the intention and knowledge that if death is caused, they will be guilty of culpable homicide. He further argued testimony of PW2 Arun Joshi is corroborated by the MLC ExPW6/A in which it is mentioned Arun Joshi received injury on his scalp, therefore both the accused are liable to be convicted u/s 308 IPC.
10. On the other hand, Ld. Counsel for both the accused argued that there are material contradictions in the statement of PWs, hence same is not reliable. He argued that while DD no.34A was recorded at 11.40 pm but PW5 SI Mahender Singh reached at State V Naveen Kumar Hudda & anr.
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the spot at 10.10 pm. Hence either DD is manipulated or statement of IO is incorrect. Further there is improvement in the testimony of PW2 Arun Joshi as in his statement ExPW2/A, he stated that accused Yash caught hold his shirt but he did not stated that accused Yash also gave danda blow to him but in his testimony, he stated that accused Yash also gave him danda blow. Hence it is an improvement. Similarly, PW2 Arun Joshi stated in his statement ExPW2/A that when one danda was broken then accused Naveen brought another danada whereas in his testimony as PW2 he stated that accused Yash brought another danda when danda is broken. Ld. Counsel further argued that from the MLC ExPW6/A, it is evident that PW2 Arun Joshi was in drunken condition as in MLC ExPW6/A, it is mentioned that smell of alcohol in breadth. Therefore, in such circumstances, the testimony of PW2 cannot be relied upon and both the accused are entitled to be acquitted.
11. I have considered the arguments and gone through the case file. The prime witness of the prosecution case is PW2 Arun Joshi who is the complainant as well as lone eye witness. He deposed that on 18.5.07 when he had gone to DC Chowk in his State V Naveen Kumar Hudda & anr.
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Santro car bearing no.3022 at about 10 pm he met Naveen Hudda and other boy Yash whose name was revealed to him after about two days. He was known to accused Naveen Hudda earlier as his younger brother was his class fellow. Accused Naveen Hudda asked him to quarrel with somebody but he refused to go with them. Thereafter accused Naveen Hudda asked him that I see your body made in gym (tera gym wim or body nikalta hu) and gave danda blow to him which he brought from nearby STD Booth shop. Accused Yash had also caught hold his shirt collar and gave danda blows on his head. One danda got broken. Thereafter, accused Yash brought another danda and both continuously attacked on his head with danda. He received injury on his head. Thereafter two boys took him to Jaipur Golden Hospital and thereafter his friend Ankit Yadav took him to BSA Hospital. Police came and his statement ExPW2/A was recorded in BSA Hospital. Accused Yash and Naveen were arrested vide arrest memos ExPW2/B and ExPW2/C. He identified both the accused Yash and Naveen as the persons who assaulted him. He was cross examined by learned counsel for both accused but nothing much has come out in the cross State V Naveen Kumar Hudda & anr.
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examination of PW2 Arun Joshi. No doubt there are some contradictions and improvements from his statement ExPW2/A given to police, such as in his statement he did not state that accused Yash hit him with danda or that accused Yash brought the danda when one danda broken.
12. In my view, same is not sufficient to disbelieve the testimony of PW2. PW2 was hit on his head, is evident from his MLC ExPW6/A. In the MLC ExPW6/A it is mentioned that injuries
(i)CLW 4 X ½ cm in size over the parietal region of the scalp and
(ii)multiple small seized abrasions are over the face, abdomen and right palm etc. PW2 Arun Joshi could not cause said injury to himself merely because he has enmity with the accused persons as contended by Ld. Defence counsel. The contention of Ld. Counsel for accused that PW2 Arun Joshi was himself drunk as it is mentioned in the MLC that smell of alcohol was coming from his breadth. PW2 Arun Joshi had not denied that he had not consumed the liquor but he had only stated that he did not remember whether he had consumed liquor on that day. Again I will say that testimony of PW2 cannot be rejected merely on this ground. State V Naveen Kumar Hudda & anr.
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It is quite natural that every person tried to hide out his bad habit and consuming liquor is also a bad habit and PW2 has also tried to hide his bad habit of consuming liquor. No suggestion has been given by the defence counsel to PW6 Dr.Sanjay Sharma that injuries of PW2 can be caused by falling. Both the accused persons have been identified by PW2 in the court as well as at the time of their arrest which is proved from the arrest memo of accused ExPW2/B and ExPW2/C, both bear his signature.
13. Testimony of PW2 is duly corroborated by the testimony of PW3 Ankit who testified that he brought PW2 Arun Joshi to Baba Saheb Ambedkar Hospital. His testimony is also corroborated by PW5 SI (Rt.) Mahender Singh IO and PW4 HC Mahavir who participated in the case. As far as testimony of DW1 Mukesh owner of STD shop at DC Chowk is concerned same is of no use as he had given general statement that no quarrel took place before him but did not stated that on 18.5.03 whether any quarrel took place or not at DC Chowk. In cross examination he admitted that he leave the shop when he go out for some work. May be on 18.5.07 he was not in his shop or his shop may be closed. Hence State V Naveen Kumar Hudda & anr.
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his testimony is not of any help to accused persons.
14. In view of aforesaid facts and circumstances, I held that prosecution has been able to prove that injury to PW2 has been caused by accused persons.
15. Both the accused have been charged for office u/s 308 IPC i.e for attempt to culpable homicide not amounting to murder.
16. Culpable homicide is defined u/s 299 IPC which is reproduced as under :
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death;
or
iii)with the knowledge that the doer is State V Naveen Kumar Hudda & anr.
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likely by such act to cause death.
17. Hence culpable homicide, offence falls in the category of culpable homicide there must be an act done by the accused (i) with the intention of causing death or (ii) with the intention of causing such bodily injury which is likely to cause death or (iii) with the knowledge that person is likely to cause death by such an act.
18. Now coming to the facts of the present case whether accused persons have any intention to commit culpable homicide or not. If yes, then present case will fall u/s 308 IPC otherwise not. PW2 Arun Joshi had himself testified that accused person had hit with danda which was lying near the STD shop which means both the accused had not come at the spot with the danda. It is not the case of prosecution that there was any preplanning of accused persons to commit the murder of PW2. It appears that accused by chance met with injured Arun Joshi and quarrel took place. Therefore, in such circumstances, it cannot be said that accused persons had given beatings to the injured PW2 with the intention to cause his death. Further though in his testimony PW2 has called State V Naveen Kumar Hudda & anr.
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the weapon used by accused Naveen as danda but in his complaint ExPW2/A he has stated that accused Naveen hit with dandi which got broken. There is lot of difference between danda and dandi while a danda can cause severe injuries, even death, if hit on the vital parts of body, but it is very unlikely that a dandi will cause the death of a person even if hit on head. Further from MLC ExPW6/A, it is evident that only one injury is on the scalp of injured which is just 4 X ½ cm in size, which means only one blow has been given on head. Doctor has opined the injury as simple. Therefore, in such circumstances, it cannot be said that accused persons have intention to cause the death of injured or there is any likelihood of death of injured by the act of accused persons or they have any knowledge that death will be caused by their act. Hence in the facts and circumstances of the case, I held that it would not be appropriate to convict the accused person for attempt to commit culpable homicide not amount to murder punishable u/s 308 IPC. Since hurt to PW2 is simple, hence I convict both the accused u/s 323/34 IPC.
Announced in open court (Sanjeev Kumar) on 27.11.2012. ASJ01 (Outer) Rohini, Delhi. State V Naveen Kumar Hudda & anr.
FIR no. 319/07PS Prashant Vihar Page No. 12 13 IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS JUDGE, OUTER01, ROHINI, DELHI Sessions Case No:82/11 FIR No: 319/07 Police Station : Prashant Vihar U/s : 308 IPC State Versus
1. Naveen Kumar Hudda, S/o Shri Om Parkash Hudda, R/o H.No.A5G, Vijeta Vihar Apartments, Sector13, Rohini, Delhi.
2. Yash, S/o Shri Jeevan Singh, R/o H.No.A35G, Vijeta Vihar Apartments, Sector13, Rohini, Delhi.
..... Convicts ORDER ON SENTENCE
1. Shri S.C. Sroai, Ld. APP for the State and Shri Arpan Rathore, Advocate for both the convicts heard. Record perused. State V Naveen Kumar Hudda & anr.
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2. Vide judgment dt. 27.11.12, the convicts Naveen Kumar Hudda and Yash were convicted for offence u/s 323/34 IPC for causing simple injury to complainant Arun Joshi.
3. It is argued by Ld. Counsel for the convicts that convict Naveen Kumar is aged about 31 yrs., his family is comprising his wife, one son aged about two years and his old aged parents to look after and he is the only bread earner in the family.
4. It is further argued by Ld. Counsel for the convict that convict Yash is aged about 28 yrs., his family is comprising old aged parents and unmarried sister and he is the only bread earner in the family. Learned counsel for both the convicts requested that considering the aforesaid lenient view be taken against both the convicts.
5. On the other hand, Ld. Adl.PP for the State submits that both the convicts had given severe beatings to injured/complainant State V Naveen Kumar Hudda & anr.
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on his head, therefore, they do not deserve any leniency.
6. Considering the fact that both the convicts are of young age and they are not the previous convicts, therefore sending them behind the bars will not serve the purpose of sentence as it will expose them to hard core criminals and further jeopardize their future prospects, therefore taking the lenient view, I sentence them to fine Rs. 1000/ each in default, they shall be liable to simple imprisonment for a term of one month, besides this they will also liable to pay Rs.9000/ each u/s 357 Cr.P.C. which shall be payable to the complainant, if realized. A copy of this judgment be supplied to both the convicts free of cost. The case property, if any, be confiscated to the State. File be consigned to the record room.
Announced in open court (Sanjeev Kumar) on 29.11.2012 ASJ01, Outer, Rohini, Delhi. State V Naveen Kumar Hudda & anr. FIR no. 319/07 PS Prashant Vihar Page No. 15