Delhi District Court
State vs : (1) Bablu Haldhar on 14 December, 2007
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IN THE COURT OF SH. BHARAT PARASHAR, ASJ:FTC:ROHINI:DELHI
SC No.: 219/06
STATE VERSUS : (1) BABLU HALDHAR
S/O KANHAI HALDHAR
R/O JHUGGI NO. 45,
'C' BLOCK, JAHANGIR PURI,
DELHI
(2) BONA HALDHAR @ SHANKER
S/O KANHAI HALDHAR
R/O JHUGGI NO. 45,
'C' BLOCK, JAHANGIR PURI,
DELHI
(3) BANGA HALDHAR
S/O KANHAI HALDHAR
R/O JHUGGI NO. 45,
'C' BLOCK, JAHANGIR PURI,
DELHI
FIR NO.: 507/2002
PS : JAHANGIR PURI
U/S 307/326/34 IPC
JUDGMENT
1. Briefly stated the case of the prosecution, as unfolded by the report under Section 173 Cr.P.C. is as under:-
"On 03.08.2002 at about 10:00pm when one Contd.....2
Prem returned at his house at N-37/37, C-Block, Jahangir Puri, Delhi from his work and was standing outside his house then he was confronted with by his three neighbourers namely accused Bablu Haldhar, Bona Haldhar and Banga Haldhar. Accused Bablu Haldhar allegedly asked Prem as to why children of Prem had quarreled with his children. Thereafter he asked his two brothers Banga Haldhar and Bona Haldhar to caught hold of Prem and which they accordingly did. Accused Bablu Haldhar in the meantime attacked Prem with a 'chhura' (meant for cutting of meat) which he was carrying. Prem immediately cried 'Bachao-Bachao' and upon hearing which his nephew Kartik also came running over there to save him but he too was attacked by accused Bablu Haldhar. Kartik Contd.....3
however tried to save himself and in the process the chhura struck him on his right head. A number of persons from neighbourhood gathered over there and while Bablu Haldhar was caught hold of by them and chhura was also snatched from his hand but the other two co-accused persons ran away from the spot. Matter was immediately reported to police at no.100. In the meantime both Prem and Kartik were removed to BJRM Hospital and from where they were referred to Trauma Center.
One ASI Dalbir Singh however reached the spot upon receipt of information about the incident vide DD No. 71-B Ex.
PW6/A. At the spot a number of public persons namely Ganesh, Dinesh etc. met him and handed over accused Bablu Haldhar along with the chhura viz. The weapon of offence Contd.....4
recovered from his possession by them. He accordingly, seized the said chhura after preparing its sketch and sealing it in a pullanda with the seal of DS. He also recorded statement of one Ganesh Singh and prepared a rukka and got a case registered at PS Jahangir Puri. He thereafter went to Trauma Center and collected MLCs of the two injured persons. He also collected the blood stained earth sample from the spot along with earth control sample. The clothes of injured Prem which were taken into possession by the Doctors were also collected by him.
Subsequently, on 15.08.2002 accused Bona Haldhar was also arrested by him from near Kaushal Cinema, Jahangir Puri, Delhi. Thereafter, on 21.08.2002 the third absconding accused Banga Haldhar was also arrested by Contd.....5
him from his jhuggi in Jahangir Puri. Accused persons also made disclosure statement admitting their guilt in the present case. The various Exhibits including the 'chhura' was sent to CFSL, Calcutta. The Doctors at Trauma Center opined the nature of injuries of the two injured namely Prem and Kartik to be 'grievous' in nature."
2. Thus, upon completion of necessary further investigation the challan was prepared and was filed in the court for trial.
3. Upon committal of the case to the Court of Sessions charge for the offence U/S 307/326/34 IPC was framed against all the three accused persons. A separate charge for the offence U/S 27 Arms Act was also framed against accused Bablu Haldhar by the then Ld. Predecessor of this court. The accused persons however pleaded not guilty to the charge and claimed trial. The prosecution thereafter in order to prove its case examined 17 witnesses. The three accused persons were thereafter examined U/S 313 Cr.P.C.
Contd.....
6They thereafter examined one Fazlu Rehman as DW-1 in their defence.
4. PW1 Sh. Prem Sarkar and PW2 Kartik were the two injured persons. Both of them deposed almost on identical lines while reiterating the prosecution story in their deposition.
5. PW3 Ganesh Singh was the complainant and also allegedly an eyewitness of the incident. He also reiterated the prosecution story in his deposition besides proving his complaint Ex. PW3/A lodged with the police.
6. PW5 Vinesh Kumar Singhal was also allegedly an eyewitness of the incident. However, this witness though stated about Prem having been admitted in Trauma Center in an injured condition but claimed complete ignorance as to the manner in which he came to sustain injury or as to who at all caused injury to Prem. He was also cross examined by Ld. APP at length but nothing material which could favour the case of the prosecution could come out from his mouth.
7. PW7 Ram Niwas had allegedly joined the IO in the Contd.....
7proceedings when upon receipt of information the police party had reached the spot for the first time and had arrested accused Bablu Haldhar besides seizing the 'chhura' viz. Weapon of offence in the present case. This witness also preferred to not to support the case of the prosecution in this regard and once again despite having been cross examined at length by Ld. APP nothing material could come out from his mouth which could render any support to the prosecution case.
8. PW13 Sagri was the sister of injured Prem Kumar and was allegedly an eyewitness of the incident. In her deposition she reiterated the prosecution case while deposing almost on identical lines as PW-Prem did. After the incident she had further removed injured Prem and Kartik in a rickshaw to BJRM Hospital and from where they were taken to Trauma Center in an Ambulance.
9. PW6 HC Dal Chand was the DD writer PS Jahangir Puri who had recorded the initial information of the incident on 03.08.2002 vide DD No.71B Ex.PW6/A.
10. PW8 Sh. Krishan Kumar was a private photographer Contd.....
8who had taken photographs of the spot on the directions of the IO on 03.08.2002 itself and he accordingly proved the said two photographs as Mark-A1 and A2.
11. PW10 Dr. Girish Parbhat had medically examined injured Kartik and Prem at Trauma Center vide MLCs Ex.PW10/A and B.
12. PW12 HC Jogi Ram was the duty officer PS Jahangir Puri who had recorded FIR Ex.PW12/A in the present case.
13. PW14 Ct. Jaipal Singh had taken various sealed pullandas in the present case to CFSL, Calcutta from MHC(M) PS Jahangir Puri on 12.10.2002.
14. PW15 HC Narinder was the MHC(M) PS Jahangir Puri with whom the various case property articles were deposited with by the IO.
15. PW16 Kanta Yadav was the record clerk, Trauma Center. She proved the nature of injuries on the MLCs of two injured namely Prem and Kartik as were given by one Dr. Naresh Garg who was no longer available. The said injuries were opined to Contd.....
9be "Grievous" in nature by Dr. Naresh Garg on the MLCs of both the injured persons.
16. PW17 ASI Dalbir Singh was the IO of the case. In his deposition he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
17. PW4 Ct. Jai Parkash, PW9 Ct. Puran Chand and PW11 Ct. Anil were the other police officials who had accompanied IO in the investigation of the present case at different stages. They thus, deposed about the proceedings which were carried out in their presence.
18. Accused persons in their statement U/S 313 Cr.P.C. however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
19. DW1 Fazlu Rahman however deposed that accused Bona Haldhar and Banga Haldhar were doing the business of "kabari" and whatever garbage (kabar) they used to gather during the day was put up by them near to his rehri in Wazirpur, Ashok Vihar. He thus Contd.....
10stated that about 5/6 years ago on a Sunday he had come to know that a quarrel had taken place in Jahangir Puri on the previous day. This witness further stated that on the previous day i.e. Saturday both Banga Haldhar and Bona Haldhar were present with him till 11:00pm.
20. I have heard Ld. APP as well as Ld. Defence counsel Sh. H.N. Pandey for all the accused persons. It was submitted by ld. Defence counsel that PW1 Prem, PW2 Kartik, PW3 Ganesh Singh and PW13 Sagri examined by the prosecution were all close relatives and were thus interested witnesses. It was further stated that the two public independent witnesses examined by the prosecution namely PW5 Vinesh Kumar Singhal and PW7 Ram Niwas have turned hostile and did not support the case of the prosecution. It was further stated that photographer PW8 Sh. Krishan Kumar failed to produce the negatives. It was also stated that the opinion given by the Doctors on the MLCs of two injured persons was also vague in nature. Further, relying upon the deposition of DW-1 Fazlu Rahman it was stated that both Bona Contd.....
11Haldhar and Banga Haldhar were not present at the time of incident and have been falsely implicated in this case. The prosecution was thus stated to have miserably failed in proving its case against the accused persons. The accused persons were thus prayed to be acquitted in the present case.
21. On the other hand Ld. APP strongly opposed the contentions of ld. Defence counsel stating that the deposition of the witnesses and especially those of the injured persons cannot be discarded away solely on the ground that they were relatives. The deposition of the prosecution witnesses was stated to be cogent, convincing and reliable and the prosecution is stated to have been successful in proving its case against the accused persons. The accused persons were thus prayed to be convicted.
22. I have carefully perused the record.
23. At the outset, I may state that in the entire cross examination of the prosecution witnesses and especially that of PW1 Prem and PW2 Kartik, the two injured persons I have been unable to find any circumstance which could favour the accused Contd.....
12persons or may lead me to disbelieve their testimonies. In fact, the injuries sustained by PW1 Prem or by PW2 Kartik have not been disputed at all by the accused persons. It was rather suggested to both the witnesses that they sustained injuries upon falling on a heap of garbage containing broken class pieces which was lying nearby. It is thus clear that the injuries found on the body of PW1 Prem and PW2 Kartik have not been disputed at all by the accused persons. The only short issue which thus remains to be examined is as to whether the said injuries were caused by the present three accused persons or not.
24. The sole thrust of the arguments of ld. Defence counsel has been to the effect that PW1 Prem, PW2 Kartik, PW3 Ganesh and PW13 Sagri have all deposed falsely being closely related to each other. He stressed upon the fact that the sole two independent public witnesses namely PW5 Vinesh Kumar Singhal and PW7 Ram Niwas have chosen to not to support the case of the prosecution and thus testimony of the other witnesses cannot be relied upon being interested witnesses.
Contd.....
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25. No doubt both PW5 Vinesh Kumar Singhal and PW7 Ram Niwas have not claimed themselves to be the eyewitness of the incident. However, the testimony of a witness cannot be discarded away solely on the ground that they were closely related with each other. No doubt this fact may call for a closer scrutiny of the deposition of these witnesses but is not sufficient to discard away their testimony. In the overall facts and circumstances of the case when the incident actually took place in front of the house of these witnesses then they were rather the natural witnesses of the incident. It is quite natural that these witnesses who all were residing in jhuggies must have heard the cries of Prem and thereafter that of Kartik and their attention must have been drawn over there. In my aforesaid view I also find support from the case DILIP SINGH V/S. STATE OF PUNJAB AIR 1953 SC 364 AND GAJENDRA SINGH V/S. STATE OF UP AIR 975 SC 1703.
26. Furthermore, more often than not a relation would not conceal the actual culprit and make allegations against an innocent person. Thus, I do not find any ground to discard away the Contd.....
14testimony of PW3 Ganesh Singh and PW13 Sagri only on the ground that they were clearly related to the injured persons namely PW1 Prem and PW2 Kartik.
Contd.....
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27. As regards negatives of the photographs of the place of incident having been not produced, I may state that the same is again not of much consequence as the prosecution case primarily relies upon the direct evidence of the two injured persons. The opinion given by the Doctors on the MLC of the two injured persons that the injuries sustained by them were "grievous" in nature also stands well proved on record. A mere suggestion put to the doctors that the said opinion has been given by them at the instance of the IO cannot take the place of evidence. The said suggestion was also vehemently denied by the doctors. Even otherwise as already observed since the injuries sustained by the two injured persons have not been disputed so, there does not arise any reason to doubt the opinion given by the Doctors on the MLC of the two injured persons. In fact, a bare perusal of the MLC of the two injured persons clearly shows the nature of injuries which were sustained by the two injured persons in the present incident.
28. However, the facts and circumstances of the case does raises some shadows of doubt as to the presence or involvement of Contd.....
16accused Bona Haldhar and Banga Haldhar in the incident. Not only these two accused persons were not apprehended by the public persons at the spot itself but even no overt act except catching hold of Prem at the time of incident has been attributed to them. Though DW-1 Fazlu Rahman has deposed in support of these two accused persons being not present at the time of incident but irrespective of it I am of the considered opinion that the overall facts and circumstances of the case raises some shadows of doubt as to the presence or involvement of these two accused persons namely Banga Haldhar and Bona Haldhar in the present incident. It is often seen that in such kind of disputes, involving relatives or neighbourers, often efforts are made by both the parties to rope in as many members from the opposite side as possible.
29. Thus, in view of my aforesaid discussion I am of the considered opinion that the prosecution has miserably failed in proving its case against accused Bona Haldhar and Banga Haldhar beyond shadows of all reasonable doubts. However, as regards accused Bablu Haldhar the prosecution has clearly succeeded in Contd.....
17proving that he attacked PW1-Prem with such an intention and under such circumstances with a 'chhura' Ex. P-1 that if death of Prem would have occurred then he would have been guilty of committing his murder. It also stands clearly proved on record that during the course of incident accused Bablu Haldhar voluntarily caused grievous hurt on the person of PW2 Kartik by means of the said 'chhura'.
30. Accordingly, accused Bona Haldhar and Banga Haldhar stands acquitted of the offence under Sections 307/326/34 IPC. However, accused Bablu Haldhar stands guilty of the offence under Sections 307/326 IPC and is accordingly convicted thereunder.
31. Bail bonds of accused Bona Haldhar and Banga Haldhar stand cancelled. Their sureties stand discharged. ANNOUNCED IN OPEN COURT TODAY i.e. ON 13.12.2007 (BHARAT PARASHAR) ADDL. SESSIONS JUDGE FTC: ROHINI: DELHI Contd.....
18IN THE COURT OF SH. BHARAT PARASHAR :ASJ:FTC:ROHINI:DELHI S.C.NO.219/06 STATE VERSUS:- BABLU HALDHAR FIR NO.: 507/2002 U/S 307/326 IPC PS JAHANGIR PURI ORDER ON SENTENCE
1. Vide my separate judgment dated 13.12.2007 accused Bablu Haldhar has been convicted of the offence U/S 307/326 IPC.
2. I have heard ld. APP for the State as well as Ld. Defence counsel Sh. H.N. Pandey for the convict.
3. It has been submitted by learned defence counsel for convict Bablu Haldhar that he is aged about 57 years and is suffering from various ailments. It was further submitted that he has no previous criminal record and that he has already faced a long protracted trial for more than five years. It was also submitted that he has already remained in jail for a period of more than five months during the course of trial. It was also submitted that he is the sole bread earner of his large poor family comprising of three unmarried children, wife and aged mother.
Contd.....
19A lenient view was thus prayed for.
4. On the other hand, ld. APP prayed for imposition of a severe sentence in view of the facts and circumstances of this case.
5. I have carefully perused the record.
6. Keeping in view the overall facts and circumstances of the case, coupled with the submissions made, I am of the considered opinion that the interest of justice will be suitably met if convict Bablu Haldhar is sentenced to rigorous imprisonment for a period of five years and to pay a fine of Rs.3,000/- for the offence U/S 307 IPC. It is ordered accordingly.
7. In default of payment of fine convict shall further undergo simple imprisonment for a period of two months.
8. I further sentence convict Bablu Haldhar to rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- for the offence U/S 326 IPC. In default of payment of fine convict shall further undergo simple imprisonment for a period of one month.
9. It is further directed that the two substantiative period of sentences of imprisonment shall run concurrently.
10. Benefit of Section 428 Cr.P.C. shall be given to the Contd.....
20convict.
11. A copy of the Judgment as well as that of Order on Sentence be given free of cost to the convict and another copy be attached with his jail warrants.
File be consigned to Record.
Announced in the open court on 14.12.2007.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI:DELHI Contd.....