Delhi District Court
Sc No: 22/25/11/08 vs . on 30 April, 2009
1
IN THE COURT OF SHRI SURINDER S. RATHI : ASJ : FTC : R.NO.272
TIS HAZARI COURTS:DELHI
SC NO: 22/25/11/08
FIR NO: 192/00
PS: Kashmere Gate
U/s: 307/324/34 IPC
STATE
VS.
PARMOD KUMAR
JUDGMENT
1 Sl. No. of the Case 22/25/11/08
2 Date of Committal to Sessions 17.11.2006
3 Received by this court on transfer 25.11.08
4 Name of the complainant Smt. Kusum Lata W/o Vinod Kumar
5 Date of commission of offence 23.5.2000
6 Name of accused, parentage and 1. Jagdish Parsad S/o Sh. Chanderbhan
address (Expired)
2. Accused Parmod Kumar S/O Late
SH. Jagdish Parsad aged 54 years
R/o 21/35, Shakti Nagar, Delhi
7 Offence complained of 307 IPC
8 Plea of guilt Pleaded not guilty
9 Final order CONVICTED
10 Date on which order reserved 25.4.09
11 Date on which order announced 29.4.2009
BRIEF REASONS FOR DECISION
1. On 23.5.2000 at around 9.40 PM , Vinod Kumar and his wife Kusum Lata, who had gone for prayer at Sri Hanuman Mandir Jamuna Bazar, were on their way back home on their two wheeler scooter . When they reached Subhash Marg Crossing at Kela Ghat Road, Kashmere Gate , a maruti car over took them and blocked their passage . A man alighted from the car and while threatening him , thrusted a knife like sharp weapon into his abdomen while saying " tujhe bahut din ho gaye, tu apna court case vaapas kyo nahi leta, tune hamme bahut dukhi kar rakha hai." The man who assaulted was Parmod Kumar and the other person accompanying him was Jagdish Parsad, real brother Contd/...
2and father respectively of Vinod Kumar. After the attack they left the spot. Kusum Lata removed her husband to Hindu Rao Hospital .
2. Thereafter Duty Officer at HRH sent message to SHO PS Kashmere Gate vide DD No.18 A. Thereafter statement of Kusum Lata was recorded by SI Jhandu Ram and FIR U/s 324/34 IPC was registered. In the Hindu Rao Hospital since the family of injured Vinod Kumar was not satisfied with the treatment, they shifted him to Maharaja Agrsen Hospital, Punjabi Bagh where he was operated upon. IO took up the investigation and after conclusion there of, he filed the chargesheet U/s 324 /34 IPC dated 10.10.2000 . Upon expiry of co-accused Jagdish Prasad proceedings against him were abated on 28.01.04.
3. Meanwhile since the injured had received a knife blow in his abdomen and was not satisfied with the investigation carried out by the police and preferred a complaint before LD. CMM for invoking section 307 IPC apart from moving an application U/s 173 (8) Cr. P.C for further investigation. In this complaint case after taking a separate cognizance, statement of complainant was recorded U/s 200 Cr. PC apart from examining other witnesses U/s 202 Cr. PC. Thereafter vide detailed order dated 13.09.05 Ld. MM passed a summoning order against the accused U/s 307 IPC.
4. Later on vide his order dated 03.11.06 Ld. MM clubbed the complaint case with State Case and committed the same to Sessions for trial. Upon receipt of this case on assignment in Sessions, Ld. Predecessor, Contd/...
3after hearing the accused, framed charged against accused Parmod Kumar on 12.03.07 U/s 307 IPC. Accused pleaded not guilty and claimed trial to the charge.
5. To prove his case prosecution examined 10 witnesses in all. After conclusion of PE statement of accused was recorded and entire evidence brought by the prosecution was put to him. Although in his SA he conceded that Vinod Kumar is his real brother and had sustained injuries but he pleaded innocence and claimed that the injury sustained by Vinod was self inflicted one. He also examined two witnesses in his defence.
6. I have heard arguments of Ld. APP Sh. Irfan Ahmed for State and LD. Defence Counsel Sh.B.L. Garg and Sh. Ashok Arya at length and have perused the case file.
7. At the onset it would be appropriate if the prosecution evidence is glanced.
8. First witness brought by the prosecution is PW-1 H.C. Subey Singh he was Duty Officer and he has proved the copy of FIR in question Ex. PW1/A.
9. PW-2 is Sh. Vinod Kumar Gupta,injured. He deposed on the lines of FIR and said that he was attacked by his brother Parmod with the knife while his father abused him and exhorted that he be taught a lesson.
Contd/...
4His father had threatened to kill him . When his wife Kusum Lata raised alarm , they fled the spot. He was not satisfied with the action taken by police against the accused persons even though in the assault he received a life threatening injury. He proved the private complaint filed by him in the court as Ex. PW2/A. In his cross examination , upon being asked about the reason of shifting from Hindu Rao Hospital (HRH) to Maharaja Agresen Hospital (MAH) he stated that even though his condition at HRH was deteriorating but still doctors there were not willing to operate upon him on that day . As soon as they visited MAH, he was operated upon in emergency and his injury was opined as life threatening one . He remained hospitalise there for around 9 days . He also stated that he and his wife visits Sri Hanuman Temple at Yamuna Bazar almost on all Tuesdays and Saturdays. He admitted the suggestion of the defence that he is at litigation with his father and accused brother and had even filed two contempt petitions against them.
10.PW-3 is Smt. Kusum Gupta , wife of Injured Vinod Kumar Gupta and an eye witness as well. The FIR in hand was lodged on her statement Ex. PW3/A. She deposed on the lines of her complaint. She stated that when she took her husband to HRH they left their two wheeler scooter at the spot. She denied the suggestion of the defence that accused did not cause any injury to her husband Vinod Kumar. Her statement was recorded by the police twice. First at HRH when she was alone and her husband was being treated. Her second statement recorded at MAH.
Contd/...
5
11.PW-4 is Dr. L.C. Sunda, Psychiatric, Hindu Rao Hospital . He proved the MLC of injured Vinod as Ex. PW 4/A. As per him, Vinod had suffered a incised wound of 4 cms over the left lumber area. The wound had a gaping and was actively bleeding. He opined the weapon a sharp one.
12.PW-5 is Dr. Kanhaiya Lal Bhat, Maharaja Agrasen Hospital . He proved the entire treatment record of injured collectively as Ex. PW 5/A. He proved as Ex. PW 5/B his endorsement on the request of IO's application that he would produce requisite medical papers in the court. He opined the injury caused by sharp weapon which was dangerous and was life threatening.
13.PW-6 is HC Suresh Kumar . He proved DD No.18 A as Ex. PW 6/A and accompanied IO SI Jhandu Ram to HRH. He got the FIR registered on the asking of SI as per statement of Kusum Lata as ex. PW 3/A since Vinod Kumar was unfit to give a statement. He also joined the proceedings on 25.05.2000 and accused was arrested vide personal search memo as Ex. PW 3/B and arrest memo as Ex. PW 3/C.
14.PW-7 is Constable Manoj Kumar , Duty Constable at HRH who witnessed seizure of blood stained shirt.
15.PW-8 is IO SI Jhandu Ram . In his deposition he detailed the steps taken by him during the course of investigation. He proved endorsement of rukka as Ex. PW8/A, site plan as Ex. PW 8/B. His Contd/...
6application to Doctors of MAH for ascertaining the measure of injury as Ex. PW 8/C.
16.PW-9 is K.D. Sharma, Record Clerk, Maharaja Agrasen Hospital. He proved the endorsement on MLC of injured made by doctors of his hospital to the fact that he was unfit for statement at the time of admission and even upto 31.05.2000 as Ex. PW 9/A and Ex. PW 9/B.
17.PW-10 is K.V. Singh, Medical Record Clerk of HRH. He proved the HRH document and the endorsement which are referred to surgery .
18.DW-1 is Sh. Rajesh Gupta is the first defence witness who is cousin of accused to claim that on the date of incident accused Vinod Kumar remained with him from 8:45 PM to 10:00 PM and at around 11:00 PM they received a phone call that Vinod Kumar sustained injuries and is admitted in hospital. In his cross done by Ld. APP he pleaded ignorance about pendency of civil cases between them.
19.DW-2 is Dharshan Devi mother of accused Parmod and injured Vinod. He said that at around 11:00 PM they received a phone call that someone had stabbed Vinod Kumar and they went to see him in hospital.. She conceded that her two sons have several civil litigations between them and that she does not want to give any share in their shop to injured son Vinod Kumar.
20. Accused Parmod has been charged for commission of offence punishable U/s 307 IPC. It would be handy to reproduce the same.
Contd/...
7Section 307 IPC Attempt to murder-
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.
21.Plain reading of this section shows that it has two basic ingredients They being first - the accused did some act and secondly - such act was done with intention or knowledge or under such circumstances that it can be caused by the death the offence of murder will emerge.
22.As far as the first ingredient that "accused did some act" is concerned , it has come in the deposition of not only the complainant PW Smt. Kusum Gupta but also in the deposition of injured himself PW2 Vinod Gupta that while they were on their way to home after visiting Sri Hanuman Mandir on 23.5.00 at around 9.40 PM , accused and his father waylaided their path and accused Parmod assaulted Vinod with the knife like object in the abdomen. Both, the injured as well as the eye witness have categorically named accused Parmod as the person who assaulted Vinod with a knife like sharp object on that night.
23.As regards the second ingredient is concerned even though injured Vinod was assaulted with a knife like object in his abdomen which was of 4 cm with a gaping in the injury but still police registered a case U/s 324 IPC only. The medical record produced and proved on record by Dr. Kanhiya Lal Bhat of MAH that Vinod had suffered a stab wound. The Contd/...
8doctor opined that the injury was caused by sharp edged weapon which was dangerous in nature and life threatening. Even in the initial MLC prepared by HRH, it was reported that in an attack, injured suffered a stab wound over the left lumber area and was having active bleeding and was unfit to make even statement. The similar observation was made by PW 4 Dr. L.C. Sunda. Medical paper ex.PW5/A shows that injured Vinod had to remain hospitalise from 24.5.2000 to 2.6.2000 and had received injuries even on his intestine which too was found bleeding because of the sharp stab injury.
24.While opening his arguments, Ld. defence counsel argued that the medical papers of Maharja Agrsen Hospital were brought on record for the first time by PW5 Dr. Kanhiya Lal Bhat after about 8 years of the incident. It has further been argued by LD. Defence counsel that even though the injured Vinod Kumar was being provided proper and adequate treatment at HRH , he deliberately shifted to MAH so as to make out the serious case out of the simple hurt matter. I am not at all in conformity with this later contention for the simple reason that no fault can be found with a patient if he shifts to a better equipped private hospital when he finds that the government general hospital is neither providing urgent necessary treatment nor is taking good care of him. It is constitutional and fundamental right of each citizen to take step which are necessary for saving his life in case of exigency and he is not expected to lie down helplessly in a government run hospital at the mercy of doctor with indifferent attitude.
Contd/...
9
25.The injury received by PW2 Vinod Kumar has been opined to be a dangerous and life threatening one. The sheer fact that it was stab wound in the abdomen which went so deep that it even caused a cut in the intestine and left a gaping hole in the abdomen. Since the sharp stab suffered by Vinod was actively bleeding both internally as well as externally , he had to be operated upon by a surgeon urgently and was also given blood transfusion for large amount of blood lost by him. The need to operate injured Vinod Kumar is also evident from the HRH MLC Ex. PW4/A which has an endorsement of referring him to EMO (Surgery).
26.As far as the contention of LD. defence counsel that the medical record of MAH should not be believed , I find no strength in the same. Record shows that IO PW8 SI Jhandu Ram had moved an application Ex. PW8/C with MAH doctor for obtaining his injury report but PW5 Dr. K.L. Bhat refused to share the same with him vide endorsement Ex. PW5/B while stating that the report would be given in the court of law. I find no justification in this regard on the part of PW5 Dr. K.L. Bhat and the administration of MAH in refusing to share the treatment record with the police. It is duty of every citizen to cooperate with the police in the investigation , more so, when a person has been injured critically. Medical reports and opinions are vital investigational inputs which aid the police in collection of evidence against the accused.
27.Having said this , refusal on the part of the doctor to deliver treatment report to the police then and there , can not be ipso facto regarded as Contd/...
10a proof of some wrong doing on the part of the hospital with the medical treatment papers. Upon refusal by the hospital / doctors to share treatment chart / report of injured with the police, the Investigating Officer can take coercive steps under the law and seize the medical papers. I see no justification on the part of the doctor or hospital in withholding the medical papers of a patient from the police who is investigating the criminal case qua the injured. This is not an isolated instance where private hospital refused to share treatment papers of injured with the police. This is high time that police officials should take recourse to their powers provided under Criminal Procedure Code of seizing the medical records when they find it necessary. Moreover, it would not be out of place to observe that as per Section 175 & 176 Cr.P. C withholding of information or document from a public servant is a penal offence punishable with six months of imprisonment. Copy of this judgment be sent to the Commissioner of Police with a direction to issue necessary advisory to all the SHOs in this regard so that the criminal trials do not suffer on account of failure of the police to seize medical papers promptly during the course of investigation.
28.One copy of this judgment be also sent to the Secretary, Ministry of Health, Government of Delhi and Chairman Medical Council of Delhi with a direction to issue necessary directives to all the private hospital / clinics / practitioners in Delhi that they are duty bound by law to share the treatment chart / history of a patient treated or attended by them, with the police on being so demanded in writing.
Contd/...
11
29.The other contention of Ld. defence counsel is that the injury received by Vinod was a self inflicted one . Record shows that this plea of the defence is an after thought as the same was neither suggested to injured PW2 Vinod Gupta nor to complainant PW3 Smt. Kusum Gupta. Although the suggestion was put to PW4 Dr L.C. Sunda of HRH but even though the defence did not get the favourable reply , they did not put this suggestion even to PW5 Dr. K.L Bhat , the treating doctor. As such the plea of defence has remained unsubstantiated. So much so that even defence witness PW2 Smt. Darshan Devi, mother of both , accused Parmod as well as injured Vinod , stated that on the fateful day at around 11.00 PM , she got a telephonic message that someone has stabbed Vinod by knife. This averment of defence witness also belying the additional plea taken by the defence during the course of arguments that Vinod might have fallen from scooter on his way back to home from Sri Hanuman Mandir. Moreover, had it been a case of two wheeler scooter accident, Vinod Gupta and his wife Kusum Gupta would have suffered multiple injuries on their body. Medical papers available on record categorically shows that injured Vinod suffered only one sharp stab injury.
30.The other plea of the defence was that there is a contradiction in the actual time of occurrence. It is stated that as per ruqqa the occurrence is 9.40 PM on 23.5.2000 but the FIR has mention of it as 12.30 PM 24.5.2000. This appears to be a clerical error since separately the ruqqa was sent by IO PW8 SI Jhandu Ram at 12.05 AM in the night on Contd/...
1224.5.2000 from HRH and as such the above referred time in the FIR should have been of date and time when reported whch is supposed to be mentioned in the column right underneath the column meant for date and hour of occurrence. The sequence of time right from the occurrence till admission of injured Vinod to HRH and lodging of FIR is found to be totally consistent. The incident took place at 9.40 PM . PW3 Kusum Gupta removed her injured husband PW2 Vinod Gupta to HRH in an auto and she reached there at 10.15 PM as per MLC . At 10.45 pm Duty Officer at HRH lodged DD No,18 A Ex. PW6/A with PS Kashmere Gate. IO reached the hospital upon receipt of the same where he found injured to be unfit for statement and he recorded statement of PW2 Kusum Lata and sent ruqqa for registration of FIR at 12.05 AM. As regards the mention of time of occurrence at 8.30 PM in the MAH record , it appears to be a clerical error on the part of the doctor recording the history since in the same line he also refers to MLC of HRH which has the correct particulars.
31.Another plea of the defence is that there are several contradiction in the deposition of witnesses . He has pointed out that even though as per IO , he prepared the site plan as per the instructions of complainant PW3 but according to PW3 police officials had not taken her to the spot. According to her she narrated the entire incident and all the necessary details to the police at the HRH only. Law of trivial contradiction is well settled.
In case titled State of Andhra Pardesh Vs. Kanda Gopaludu 2005 (3) Apex Crl. 705 (SC) while dealing with the case wherein statement of Contd/...
13witness was recorded after 4 years of incidence, Hon'ble Supreme Court observed that :
"Every discrepancy in the statement of witness can not be treated as fatal to prosecution. The discrepancy which is not fatal to the prosecution does not create any infirmity. Human memories are apt to blur with the passage of time and after a lapse of almost 4 year, it can not be expected that a witness can depose with mathematical precision. "
In case titled State Vs. Lekh Raj (2000) 1 SCC 247, Hon'ble Supreme Court observed that:-
"minor contradictions are bound to appear even in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person and the same would not cause any dent in the testimony of the witness."
In Bur Singh vs. State of Punjab 2008 (4) RCR Criminal 835 , while discussing the material discrepancies and normal discrepancies in statements of witnesses Hon'ble Supreme Court observed that :-
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person.
Courts have to label the category to which a
discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
Contd/...
14
"Witnesses can not help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment."
32.Another anomaly pointed is qua the arrest of the accused. Police registered an FIR under bailable offence and had apparently formally arrested accused Parmod after two days of the incident on 25.5.2000 and released him then and there. Although PW3 identified her signature on arrest memo but her failure to submit that she witnessed the actual formal arrest of the accused is not a circumstance which can dislodge the entire prosecution case on merits. It is a settled legal proposition that any negligence or omission on the part of the Investigating Officer during the investigation shall not have any negative bearing on the merits of the case.
33.In case titled " State of Karnatka Vs. MN Ram Dass" AIR 2002 SC (3109) Hon'ble Supreme Court observed:
"Lapse in investigation will not caste a cloud of doubt on prosecution case . Benefit of an act or omission of Contd/...15
the investigating agency should not go to the accused in the interest of justice."
Similar observation was made by Hon'ble Supreme Court in "
Sachdevan Vs. State" AIR 2002 SC 215 that:
"Any irregularity in investigation should not be allowed to be some tool to dislodge the entire prosecution case on merits."
In State Vs. Mir Mohd. Omar (2000) 8 SCC 382 Hon'ble Supreme Court observed that :-
"If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Efforts should be made by courts to see that criminal justice is salvaged despite such defects in investigation."
34.Moreover, since this case was initially investigated as a simple 324 IPC matter and was later on converted into 307 IPC case on a private complaint preferred by the injured , the detailing of the investigation remained that of the simple 324 IPC only . As such the merits of the case can not be made to suffer for lackadaisical investigation done by the police.
35.Another issue raised by LD. defence counsel is that there is a delay of 9 days in recording of statement of PW2 Vinod Gupta U/s 161 Cr.P.C. Record shows that when injured reached HRH with the sharp stab wound he was suffering from both internal and external bleeding and was unfit for statement. Even after he was shifted to MAH , he continued to remain unfit for statement as he had to be operated upon Contd/...
16as was under heavy doses of medicines. As per endorsement made on the 2.6.2000 , he became fit for statement only on 2.6.2000 i.e. after 9 days and this explains the reason of late recording of statement.
36.The other defence taken by the accused person is since he was having civil litigation with injured brother Vinod , he has been falsely implicated in this case. The dictionary meaning of word 'MOTIVE' is " a factor influencing a person to act in a particular way". Although conventionally motive is a factor which is considered qua an accused as an incentive or stimulation to commit a crime but here the accused is pleading it as a defence. The sheer fact that both, injured and accused have civil litigations pending between them , is a factor which can work both ways. Plain reading of deposition of PW2 and PW3 shows that at the time when PW2 was assaulted by accused Parmod who was accompanied by his now deceased father , it was uttered from the side of accused " maar saley ko isne bahut dukhi kar rakha hai. Yeh court se apne mukdame vaapas kyo nahi leta hai." DW2 who is mother of injured and the accused categorically stated that she does not want to give any share to injured Vinod out of the property of her husband. This apparent discrimination with injured Vinod in disentitling him from inheriting his due share in the family property led to filing of four civil cases apart from two contempt petitions against the accused. As such the word motive herein is not a circumstance of which defence can take benefit rather it acts as an incentive with the accused to eliminate Vinod so as to bring the multiple civil cases pending between them, to an end. It is a settled Contd/...
17legal proposition that when the case of prosecution is crystal clear on merits , to make out a case of conviction , motive is not a necessary ingredient. But existence of a motive on the part of accused to harm the injured strengthens the prosecution case further.
37.The last plea of the defence as putforth through DW1 and DW2 is alibi . In case titled Munshi Vs. State (2002) 1 SCC 351 Hon'ble Supreme Court while explaining the plea of alibi observed :
" the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
38.Both , DW1 cousin of accused and DW2 mother of accused tried to put forth a story that accused Parmod was with them from 8.45 PM to 11.00 PM at his Shakti Nagar house. Record shows that this plea of alibi as taken up by the defence is a highly belated after thought. Even though this incident pertains to the year 2000 but during the last around 9 years , accused never raised this plea before any forum. This plea was not even suggested either to the two public witnesses or to other prosecution witnesses at all. Such has been the conduct of the defence that even in the statement of accused , although he gave about a pageful of self explanation but even up to as late as 12/1/2009 he did not plead the plea of alibi. Averments of defence witnesses are self contradictory nature and for the foregoing reasons are Contd/...
18unbelieveworthy.
39.One circumstance which the defence pointed out is that in her cross examination PW3 Kusum Gupta conceded that accused Parmod had visited MAH at the time of operation of injured PW2 Vinod Gupta and as such he should be held innocent. Although this is a relevant circumstance and conduct but it alone in its own wisdom can not dislodge the entire prosecution case. The court can not loose sight of the fact that both, accused Parmod Gupta and injured Vinod Gupta are real brothers. Once the news Vinod being critically hurt might have spread in their family, their relatives must have started pouring in at the hospital. At that juncture absence of real brother Parmod from the hospital would have further aggravated the criminal case against him. Even though it was claimed that he himself gave blood for his brother injured Vinod Gupta but he has failed to bring anything on record the show the same and his suggestion in this regard was denied by the witnesses.
40.Ld. Defence counsel has further taken the plea that there being civil litigations pending between the accused Parmod and the injured Vinod , sole testimonies of injured Vinod and that of his wife Kusum who is also complainant in this case can not be relied upon until the same are supported by the independent witnesses to the incident. I find no force in this contention of Ld. defence counsel.
Contd/...
19In case titled Hari Ram Vs. State of UP, AIR 2004 SC 3754 Hon'ble Supreme Court while declining plea of defence of interestedness of a witness in a murder case observed :
"Relationship is not a factor to affect credibility of a witness. It is more often then not that a relation would not conceal actual culprit and make allegations against an innocent person . Over insistence on witnesses having no relation with the victim often results in criminal justice going away. When any incident happened in a dwelling house or nearby, the most natural witnesses would be the inmate of that house . It would be unpragmatic to ignore such natural witnesses and insists on outsiders who would not have even seen anything."
In case titled State of Karnataka Vs. Papanaik 2004 (9) JT 161 (SC) while declining the plea of defence of interestedness of a witness Hon'ble Supreme Court observed, "Evidence of wife and nephew of deceased who were natural witnesses should be believed. Relationship is not a factor to affect credibility of a witness . It is more often then not that a relation would not conceal the actual culprit and make allegations against an innocent person." In case titled as Vijay Shankar Shinde Vs. State of Maharashtra AIR 2008 SC 1198, on the point of injured witness Hon'ble Supreme Court observed, "Evidence of such witness lends more credence as normally he would not falsely implicate a person thereby protecting the actual assailant ."
In 1989 Cr.L.J 2113 (SC) Hon'ble Supreme Court observed, Contd/...
20
"evidence of an injured witness can not be rejected on the ground of interestedness .'' In another case reported at 1993 Cr.L.J 187 (SC) Hon'ble Supreme Court observed that : " Evidence of a sole eye witness who received injuries must be wholly reliable.'' Further in case titled Bur Singh vs. State of Punjab 2008 (4) RCR Criminal 835 , while discussing the parameters for evaluating the evidentiary value of a relative or interested witness Hon'ble Supreme Court observed, "(1)Merely because the eye-witnesses are family members their evidence can not per se be discarded.
When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused can not be a ground to discard the evidence which is otherwise cogent and credible.
(2)Relation is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made."
41.As such in view of the above discussion I have no hesitation in concluding that accused Parmod had a motive to eliminate his brother Vinod Gupta since he was demanding his share in the family property which as of now stands totally wrested by accused Parmod. Depositions of eye witnesses are consistent and truthful and have been Contd/...
21fully corroborated by the medical evidence. The sharp stab injury which even cut to intestine of injured Vinod , has been opined to be life threatening. Accused Parmod Kumar is, therefore, stands convicted for commission of offence punishable U/s 307 IPC. He be taken into custody and sent to J/c. He shall be heard separately on the point of sentence on 30.4.2009.
ANNOUNCED AND DICTATED IN THE OPEN COURT ON : 29.4.2009 ( SURINDER S. RATHI ) ASJ:FTC:DELHI 29.4.2009 Contd/...
22IN THE COURT OF SHRI SURINDER S. RATHI : ASJ : FTC : R.NO.272 TIS HAZARI COURTS:DELHI SC NO: 22/25/11/08 FIR NO: 192/00 PS: Kashmere Gate U/s: 307/324/34 IPC STATE VS.
PARMOD KUMAR
29.4.2009
Pr: Ld. Addl. PP Sh. Irfan Ahmad for State
Accused on CB with LD. Counsel
Vide a separate judgment of the day accused Parmod Kumar is found guilty for commission of offence punishable U/s 307 IPC. Accused Parmod stands convicted for commission of offence punishable U/s 307 IPC, he be taken into custody and sent to J/c. He shall be heard on the point of sentence on 30.4.09.
( SURINDER S. RATHI ) ASJ:FTC:DELHI 29.4.2009 Contd/...
23Contd/...
24Contd/...
25IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE FAST TRACK COURT: ROOM NO.272:TIS HAZARI COURTS:DELHI SC NO: 22/25/11/08 FIR NO: 192/00 PS: Kashmere Gate U/s: 307 IPC STATE VS.
PARMOD KUMAR
ORDER ON SENTENCE
30.4.2009
Pr: Ld. Addl PP Irfan Ahmad for State
Convict Parmod Kumar is produced from J/c with his LD. Counsel Sh. B.L. Garg Advocate and Sh. Ashok Arya Advocate Convict was convicted for commission of offence punishable U/s 307 IPC vide separate judgment dated 29.4.2009.
Submissions on point of sentence heard from both the sides today.
While opening his submissions on the point of sentence it is stated by LD. Addl. PP for state that convict does not deserve any leniency and is entitled to be given maximum punishment i.e. life sentence as provided under statue since he attacked his elder real brother and caused sharp stab injury in his abdomen which was life threatening one. It is submitted that such was the intensity of blow that it even cut through the intestine.
Ld. Counsel SH. B.L. Garg and Ashok Arya advocate for convict submit that convict Parmod is a married man with two children. He is living with his widowed 80 yrs old mother and physically challenged brother. It is stated that he is the only earning member in the house. It is stated that convict has clean antecedents and has no previous or subsequent involvement in any criminal case. It is stated that Contd/...
26during the 9 years of trial , he has never misused his bail. It is claimed that he is an income tax assessee .Prayer for lenient view is made on behalf of convict.
As far as punishment is concerned, it has been beautifully elucidate in Halsbury's Laws of England, " The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided."
It is a settled legal preposition that while passing an order on sentence the Court is neither expected to be lenient nor too harsh as in either of the eventualities punishment lose its efficaciousness.
As far as the gravity of sentence which the convict deserves in this case , even though injured was the real brother of the convict , during the 9 years of trial , convict failed to patch up with the brother and settle the property / civil disputes, which led to this ugly incident and are still pending between them. It is unfortunate that in the case in hand convict attacked his own elder real brother with whom he had clash of interest since his co-accused (now deceased father) did not Contd/...
27intend victim Vinod Gupta to inherit the share with the family property. The decision of the convict to use knife instead of arguments to settle their disputes is highly deplorable.
Considering the totality of the circumstances and the fact that the incident in question is the only criminal case in which convict has ever been involved, it is not a case of imposing of sentence on the harsher side . The assault on Vinod Kumar was constituted to only one knife blow. Had the intention been to eliminate him then and there, convict would have thrusted more knife blow. As such in my considered view considering the above circumstances Convict Parmod Kumar is sentenced to undergo Rigorous Imprisonment for three years apart from fine of Rs. 3,25,000/- . Out of the same Rs.3 lacs shall be given to the victim Vinod Gupta as token of compensation , elder brother of convict who had to remain hospitalised for around 10 days and suffered pain owing to the injury sustained by him. In default of payment of fine , convict will have to undergo additional Simple imprisonment for the period of six months . One copy of judgment and order on senence be sent to injured Vinod Gupta through SHO, PS Kashmere Gate. Copy of judgment and order on sentence is being supplied to the convict free of cost. FINE NOT PAID. Convict be sent to jail for undergoing sentence.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 30.4.2009 ( SURINDER S. RATHI ) ASJ:FTC:DELHI:
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IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE FAST TRACK COURT: ROOM NO.272 : TIS HAZARI COURTS : DELHI SC NO: 22/25/11/08 FIR NO: 192/00 PS: Kashmere Gate U/s: 307 IPC STATE VS.
PARMOD KUMAR
30.4.2009
Pr: Ld. Addl PP Irfan Ahmad for State
Accused Parmod is produced from J/c with Ld. Counsel Sh. B.L. Garg Advocate Convict was convicted for commission of offence punishable U/s 307 IPC vide separate judgment dated 29.4.2009.
Arguments on the point of sentence heard. Vide a separate order of the day , convict Parmod Kumar is sentenced to undergo ''Rigorous Imprisonment'' for 3 years apart from fine of Rs. 3,25,000/- for commission of offence punishable U/s 307 IPC. In default of payment of fine , convict will have to undergo additional Simple imprisonment for the period of six months each. Out of this fine of Rs. , Rs. 3 lacs shall be paid to the injured Vinod Kumar as a token of compensation.
Copy of judgment and order on sentence be sent to the injured Vinod Kumar for intimation. Copy of judgment and one cop y of judgment and order on sentence be given to convict free of cost. Fine paid. File be consigned to RR .
( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE FTC:DELHI 30.4.2009 Contd/...
29Contd/...