Delhi District Court
State vs . Jagat Singh Fir No.70/06 on 30 April, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
(1) SC No.29/1/11
FIR No.71/06
U/s 323/341 IPC
PS Delhi Cantt
State
Vs.
Sunil Kumar s/o Sh. Bhanwar Singh
..... Accused
Challan filed on : 27.02.07
Reserved for Order on : 12.04.2012
Date of Pronouncement :28.04.2012
(2) SC No.28/1/11
FIR No.70/06
U/s 308 IPC
PS Delhi Cantt.
State
Vs.
Jagat Singh s/o Sh. Surjan Singh
..... Accused
State Vs. Jagat Singh FIR NO.70/06
State Vs. Sunil Kumar FIR no.71/06 Page No. 1 of 33
Challan filed on : 11.09.07
Reserved for Order on : 12.04.2012
Date of Pronouncement : 28.04.2012
JUDGMENT
By way of this common order I shall dispose of two cases bearing FIR no. 71/07 titled State Vs. Sunil Kumar and FIR no. 70/06 titled State Vs Jagat Singh as both the cases have arisen out of one and the same incident of dated 26.02.06 and both the parties have registered cross cases against each other.
2. The brief conspectus of the case FIR no. 71/06 are that it was registered on the statement of Jagat Singh who has alleged in his statement Ex.PW3/A that he is resident of H.No.1/75 Guru Kripa, Sadar Bazar, Delhi and he is not doing any work. On 26.2.2010 at about 9 p.m he woke up for urinating and when he came near stairs then his tenant Sunil Kumar came after parking his vehicle and uttered 'budhe tera aaj akhri din hai'. He was having sickle (darat) in his hand and he was wearing gloves. He tried to attack with said sickle (darat) on him. But he catch hold of his sickle (darat). Thereafter he gave leg State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 2 of 33 blow on his private part. He pulled him out and gave legs and fists blow. He was crying and accused continued giving beating to him. He has further alleged that there is a case pending in the court of Sh. Mukesh Vats and due to this accused has attacked on him.
3. Case FIR no. 70/06 has been registered on the statement of Sunil Kumar Ex.PW2/A and in the said statement it has been alleged that he is residing with his wife and kids at H.No.1/75 Ist floor, Sadar Bazar, Delhi Cantt as tenant and doing property business. On 26.2.06 at about 8.45 p.m he returned to his house from his office situated at Mahavir Enclave. After parking his vehicle when he started going upstairs and when he was on first step then his landlord Jagat Singh gave blow with some sickle (darat) like object on his head and right side of hip as well as on his hands due to which he sustained injury on his head. To save himself he came in street where locality people had gathered and wife of Jagat Singh and his daughter took him inside the house. He boarded in a rickshaw and went to Police Station. He got treatment from Safdarjung Hospital. On these statements IO made his endorsements and got the separate cases registered vide FIR no. 71 & 70/06. The accused in both the cross cases were arrested. The investigation was done and after completion of the investigation, State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 3 of 33 challans were filed in the court for judicial verdict.
4. The Case FIR no.70/06 being triable by the court of sessions, after committal proceedings was marked to the court of Session and it was received on 29.04.08. Case FIR no. 71/06 was triable by Ld.MM but on an application made by complainant Jagat Singh it was also marked to Sessions Court vide order of Ld. District JudgeIX, dated 11.01.2010 for joint trial and it was received by the court of session on 21.01.2010.
5. The charge in case FIR no. 70/06 was framed against accused Jagar Singh u/s 308 IPC by Sh. Praveen Kumar, Ld. ASJ on 03.08.2009 and in case FIR no. 71/06 Notice was framed by the Ld. MM u/s 323/341 IPC on 17.10.07 to which accused persons pleaded not guilt and claimed trial. Thereafter the cases were fixed for Prosecution Evidence.
6. The prosecution has examined as many as 5 witnesses in FIR no. 71/06 and also 5 witnesses in case FIR no. 71/06. Thereafter prosecution evidence was closed and cases were fixed for Statement of accused persons u/s 313 Cr .PC.
State Vs. Jagat Singh FIR NO.70/06
State Vs. Sunil Kumar FIR no.71/06 Page No. 4 of 33
7. The statement of accused persons in both the cross cases u/s 313 Cr.PC were recorded in which the accused persons in both the cases have pleaded their innocence and stated that they have been falsely implicated in this case. The accused in case FIR no. 70/06 has examined two defence witnesses. DW1 Smt. Nirmala and DW2 Jagar Singh accused himself. In case FIR no.71/06 the accused has examined himself u/s 315 Cr.P.C. Thereafter the cases were fixed for final arguments.
8. I have heard the Ld. Counsel for the accused persons as well as Ld. APP for the State and perused the testimonies of each witness adduced by the prosecution. In consideration of the submission made by the Ld. Counsel for the accused persons, I have also perused the evidence led by the prosecution in these case. CASE FIR NO. 71/06 State Vs. Sunil Kumar
9. PW1 Dr. Krishan Kumar is the doctor from Safdarjung Hospital who appeared on behalf of Dr.Avinash Prakash who had examined injured Jagat Singh. The detailed report of examination is State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 5 of 33 Ex.PW1/A.
10. PW2 SI Puran Singh is the FIR recorder who recorded FIR no.71/07 u/s 323/341 IPC. The copy of FIR is Ex.PW2/A.
11. PW3 Jagat Singh is the injured and complainant in this case. He has stated that police recorded his statement which is Ex.PW3/A.
12. PW4 Ct.Subender Singh has deposed that on receipt of DD no.23A he alongwith SI Randhir Singh went to Safdarjung hospital where IO obtained the MLC of injured Jagat Singh and recorded his statement, prepared rukka and handed over to him for registration of the case. He went to PS and got the case registered.
13. PW5 Retired SI Randhir Singh has deposed that on 26.2.06 on receipt of DD no.21A and 22A he alongwith Ct. Virender came out of PS and at the gate of PS injured Sunil met him. He was taken to hospital by Ct. Virender for medical examination. He reached at Sadar Bazar and came to know that injured Jagat Singh has already been shifted to hospital. No eyewitness was found there. Thereafter he State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 6 of 33 alongwith Subender went to Safdarjung Hospital where injured Sunil and Jagat were found admitted. He obtained the MLC of Sunil but by that time no result was given. He recorded the statement of Jagat, made endorsement Ex.Pw5/A and handed over rukka for registration of case. He came back at the spot and prepared the site plan at the instance of Smt. Mukesh Yadav which is Ex.PW5/B. He made enquiries from the locality persons but they refused to join in the investigation. He has further stated that accused Sunil was arrested vide memo Ex.PW5/C and his personal search was conducted vide memo Ex.PW5/D. In cross examination he has stated that when accused Sunil reached in PS, he was having injuries at the back of his head and on his shoulder. Darat was recovered from the possession of accused Jagar.
CASE FIR NO.70/06 State Vs. Jagat Singh
14. PW1 Dr. Krishan Kumar is the witness from Sardarjung Hospital who appeared for Dr. Kiran who had prepared the MLC of injured Sunil Kumar. The MLC is 1/A. State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 7 of 33
15. PW2 Sunil Kumar is the complainant and injured and he has stated about the incident and that his statement was recorded by the police which is Ex.PW2/A.
16. PW3 HC Mukesh Kumar has deposed that he alongwith SI Randhir went to H.No.1/75 Sadarbazar and arrested accused Jagat Singh vide memo Ex.PW3/A. His disclosure statement Ex.PW3/B was recorded and he got recovered the sickle from underneath of a cot from his house which was used in committing the offence. The sketch of the sickle is Ex.PW3/C and it was taken into possession vide memo ex.PW3/D. He has further stated that accused Jagat Singh pointed out the place of occurrence vide memo Ex.PW3/E. Thereafter the case property was deposited in the PS. He identified the sickle Ex.P1. In cross examination he has stated that it is correct that darat was recovered on 16.3.2006. He further stated that wife and daughter of accused were present at the house. In his presence IO did not ask wife of accused and his daughter to be recovery witnesses. He admitted that it was a residential area.
17. PW4 Retired SI Randhir Singh has deposed that on 26.2.2006 injured Sunil met him at the gate of PS and he was sent for State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 8 of 33 medical examination. He reached at the spot and thereafter in the hospital where he found Sunil and Jagat admitted in the hospital. He obtained the MLC of Sunil but by that time no result was given by the doctor. He recorded his statement, prepared rukka Ex.PW4/A and got the case registered. Rukka was handed over to Ct. Virender who got the case registered. He prepared the site plan Ex.PW4/B at the instance of Smt. Mukesh Yadav. He further deposed about arrest of accused Jagat vide memo Ex.PW3/A and pointing out of the place which is Ex.PW3/E. He recorded the disclosure statement of accused Jagat which is Ex.PW3/B and stated that he got recovered darat vide memo Ex.PW3/C. The seizure memo of darat is Ex.PW3/D. He deposited the case property in the malkhana. In cross examination he has stated that Sunil was in TSR when he first met him outside the PS. There was no blood in the TSR. Blood was there on the clothes of Sunil. He did not seize the blood stained clothes of Sunil. He admitted that neither he nor Ct.Virender make any entry in regard to injured Sunil at the PS. He did not find any blood on the stairs. He admitted that it is a residential area. The statement of Sunil was recorded first in the hospital. He moved application Ex.PW4/DA to record the statement of Sunil. He cannot tell as and when Jagat Singh was discharged vol. He did not meet him. He admitted that at the time of preparation of State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 9 of 33 disclosure statement, sketch of darat, personal search and arrest memo , wife and daughter of accused were present in the house. There was no blood on the darat when it was seized. Darat was washed. He never tried to lift finger prints from the darat.
18. PW5 Ct. Birender Singh has deposed that he alongwith SI Randhir Singih came out of PS on 26.2.06 and in the meantime Sunil reached the PS by TSR in injured condition. Blood was oozing out from his head. He took him to Safdarjung Hospital. In the hospital SI Randhir came and recorded the statement of injured, prepared rukka and got the case registered. In cross examination he has stated that it is correct that accused Jagat Singh also reached the hospital by PCR in his presence after his arrival in the hospital . He received the MLC of Sunil only. He did not see blood in TSR. Blood was there on the clothes of Sunil.
19. I have also perused the defence evidence. In case FIR no. 71/06 accused Sunil has examined himself u/s 315 Cr.PC and he has stated that he is retired from Army and had received various awards during service. He started living as tenant in the house of complainant at Ist floor on 10.05.2002 and used to pay rent regularly. After one State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 10 of 33 year quarrel started and landlord asked to vacate the rented house and he started filing complaints against him in various departments. On the complaint of landlord, kalandra was registered u/s 107/150 Cr.PC and after six months the said proceedings were closed. He has stated that on 26.2.2006 he was going to his rented premises at first floor from the staircase and then the complainant gave the blow with chopper on his head from behind and he sustained injury on his head. He was taken to hospital and case u/s 308 IPC was registered. He was also implicated in this case and thereafter landlord's daughter had committed suicide on her own in her house while he was present in Gujarat at that time and a case was registered against him u/s 306 IPC on the complaint of landlord. Later on he was discharged from the said case. Various complaints lodged against him by complainant are colly Ex.DW1/DA (page 1 to 92). In cross examination he has stated that he did not lodge any complaint against Jagat Singh when he started quarreling with him for vacating his house. He denied that he wrongfully restrained Jagat Singh and caused injuries on his person with a darat and threated 'budhe aaj tera akhri din hai' or that he was wearing gloves in his hands.
20. In case FIR no.71/06, accused has examined DW1 Smt. State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 11 of 33 Nirmala who is the wife of accused and she has stated that her husband had gone to ease himself and thereafter she heard him shouting. She saw Sunil dragging her husband and taking him towards gali. He was having a drati in his hand and wearing gloves. She saw his husband bleeding from his nose and mouth. She has stated that people gathered at the spot and rescued her husband and her daughter made call at no.100. PCR came and took her husband to hospital. She has further stated about arrest of her husband and that Sunil Kumar was tenant in her house. Her daughter has filed a complaint against him for molestation and he was harassing and pressurizing them to withdraw that case. In cross examination she has admitted that Sunil Kumar was tenant in her house and he was not paying rent for last several months.
21. DW2 Jagat Singh, accused himself has stated that Sunil Kumar was residing as tenant and he was informed by his daughter Renu Sharma (since expired) that he was keeping a bad eye upon her whenever she used to go to the roof of the house. He also alleged that on 22.6.03 Sunil Kumar had caught hold of his daughter from behind and thereafter case FIR no.209/03 u/s 354/511/509 IPC was registered. The copy of the FIR is mark DW2/A. He has further stated that in the State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 12 of 33 year 2004 Sunil Kumar had filed a case u/s 45 of DRC Act for restoration of electricity and water & this case was finally dismissed. He has further stated that Sunil Kumar had also filed three cases before ARC for deposit of rent which were also dismissed. He has further stated that on 26.2.06 Sunil came having darat in his hand, wearing gloves and uttered 'buddhe aaj tera akhri din hai' and caught hold of him. He dragged him outside the house and gave fist and leg blows due to which he started bleeding profusely. His daughter made call at no.100 and he was removed to hospital. He has stated about his arrest by the police. He has alleged that on 4.4.07 accused threatened them not to appear in the court and threatened them to compromise the matter. He has further stated that on 20.4.07 his daughter Renu was alone in the house and she was harassed by Sunil, Surinder Singh Puri and Col. Upamanyu due to which she committed suicide and case vide FIR no.123/07 u/s 306/120(b)/34 IPC was registered. In cross examination he has stated that no lease or rent agreement was entered between him and Sunil. He or his daughter Renu did not lodge any complaint regarding keeping bad eye by accused on her. In case FIR no.123/07, the accused persons had been discharged by the concerned court. He admitted that darati was recovered by the police in this case.
State Vs. Jagat Singh FIR NO.70/06
State Vs. Sunil Kumar FIR no.71/06 Page No. 13 of 33
22. In the overall analysis of the testimonies of all the witnesses in both the cases, it is revealed that both the cases have arisen out of one and the same incident. Being cross cases, it has to be established as to which party was the aggressor. I have perused the testimonies of injureds. In case FIR no.71/06 injured Jagat Singh has deposed that he let out first floor o 10.62002 to Sunil Kumar. On 26.2.2006 at about 7.45 p.m when he went towards bathroom of his house, in the meanwhile accused also entered the house on ground floor and at that time he was having a sickle (darat). The accused uttered 'budhe aaj tera akhri din hai'. Accused was wearing gloves in his right hand. He caught hold the hands of accused in order to save himself. Accused tried to release himself but he did not loose the grip. Accused hit his right knee on his testicles (private part) and he dragged him outside of his house on main road. The accused gave him a fist blow on his right eye and made him lying on the road. Accused started giving him first blow on his right eye and made him lying on the road. The accused started giving him kick blows and fist blows on his nose as a result blood started oozing out from his nose, mouth, ear and eyes. His daughter called the police. In cross examination he has stated that accused Sunil was his tenant till 30.6.03. He is still residing State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 14 of 33 in that premises which was under his tenancy till 30.6.03. The premises in which accused was residing belongs to Cantonment Board. The said premises i.e. Cantonment Public Funds Quarter can be given on rent. The incident occurred on 26.2.06 at about 8.45 p.m He did not get disconnected the electricity and water supply of accused. He admitted that court had allowed separate electricity meter in the name of accused. He denied that he inflicted injuries on the person of accused by mean of darat.
23. To determine the aggressor the testimony of injured PW2 Sunil Kumar in case FIR no. 70/06 is also significant. PW2 injured Sunil Kumar has deposed that on 26.2.06 at about 8.30/9 p.m he was coming home from his office. He was residing as tenant in the aforesaid house. Accused Jagat Singh was his landlord. He had parked his car no. HR 55 AT 1559 in front of the house. He knocked the door and the same was found to be locked from inside. His daughter namely Manisha Yadav opened the door. Hardly, he climbed one or two stairs, accused Jagat Singh hit a sickle (darat) on his head, just below his waist and wrist. He raised noise. Immediately his wife came down. She rescued him and she made a call at no.100. He identified the darat State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 15 of 33 Ex.P1. In cross examination he has stated that he used to deposit rent in the post office. He did not file any case regarding rent. Apart from the present case one criminal case against him is pending in the court of Ms. Rekha, Ld.MM which has been registered on the complaint of daughter of accused Jagat Singh Vol. It was false case. He does not remember if he had stated to the police that he had parked his car no. HR 55AT 1559 or he knocked the door and same was found to be locked from inside and his daughter namely Manish opened the door. He did not tell the police the size of sickle and its description. Accused had hit him from behind. He immediately saw the accused when he hit him from behind. He told the police that it was accused Jagat Singh who had hit him. His daughter was there when he was hit by accused but his wife arrived after he raised an alarm. He does not know whether sickle was having blood on it or not. IO did not ask him to accompany him for the recovery of sickle. He does not remember whether PCR has taken him to the hospital or he had gone himself. He does not know whether accused had sustained any injury in the incident or not. He admitted that he had filed a civil suit against the accused seeking the relief of permanent injunction that he may not be dispossessed without due process of law. Accused had hit him from backside from sharp side of the sickle. He tired to save himself with State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 16 of 33 his right hand. He denied the suggestions put by the Ld. Defence counsels.
24. From the evidence available on file it is revealed that case of both the FIR 70/06 and 71/06 had been registered on 27.02.06 after one another and both the parties have received injuries. The date incident is 26.2.06 at about 9 p.m and case FIR no. 70/06 against accused Jagat Singh was registered at about 3.15 a.m on 27.02.06 and case FIR no.71/06 against accused Sunil Kumar was registered at about 4.25 a.m. Rukkas were sent at 3 a.m and 4 a.m respectively. It has come in evidence of Investigating officer that he recorded the statement of Sunil first in the hospital at about 2.30 a.m. PW5 SI Randhir has stated in both the cases that injured Sunil Kumar met him at the gate of PS and that he was injured at that time. PW3 Jagat Singh in FIR no.71/06 has stated that at about 7.45 p.m when he went towards bathroom of his house accused entered the house having sickle in his hand and he dragged him outside the house where he was beaten with legs and fists. As per the FIR the time of incident is stated to be 8.45 p.m while PW3 has stated it to be 7.45 p.m. PW2 Sunil Kumar in FIR no.70/06 has stated that when he climbing the stairs, he was hit from behind by accused Jagat Singh with sickle on his hand State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 17 of 33 just below his waist and wrist. Admittedly many cases are going on between both the persons Jagat and Sunil Kumar. Complainant Sunil in FIR no. 70/06 has alleged that accused Jagat had filed false and frivolous cases against him. Even the case u/s 306 IPC which was filed against complainant Sunil etc was discharged. Admittedly the relationship between Jagat and Sunil is of tenant and landlord. DW Sunil in FIR no.71/06 has stated that he is not having any receipt of his tenancy in the house of Jagat Siingh. He did not lodge any complaint against Jagat Singih when he started quarreling with him for vacating his house. As per testimony of PW4 Retired SI Randhir Singh and PW5 Ct. Birender Singih injured Sunil met them at the gate of PS when he came there in TSR and at that time he was having injuries on his body and blood was oozing out from his head. In his statement recorded by the police Ex.PW2/A, injured has also stated that he went to PS after he was beaten. However, PW3 Jagat Singh was taken to the hospital by PCR after his daughter gave information at no.100. I have considered the MLCs. On the MLC of Jagat Singh severe pain on occipital area, pain abdomen and both side rib cage, pain in both testicles on respiration and pain at the root of the neck is mentioned. Alleged history of assault is mentioned but no history of bleeding from mouth and nose was found. PW1 Dr. Krishan Kumar has stated State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 18 of 33 that patient was having bilateral tenderness in the chest but on auscultation bilateral chest was clear and in abdomen there was vague pain in the whole abdomen. As far as the MLC of Sunil Kumar Ex.PW1/A is concerned it has been mentioned that pain/injury - bleeding scalp, paint chest right side back, pain hip/injury cut right side, pain left arm and elbow joint. Also CLW 5x1x1 cm parietal region right, CLW right hip with 4x1x1 cm, CLW 1x1x1 cm left hand palmer aspect and CLW 1x1x1cm with writs right with swelling and abrasions and bruishes over back, scratch mark over right arm, elbow joint are mentioned. PW3 Jagat Singh in FIR no.71/06 has alleged that the drat (sickle) was in the hand of Sunil and PW2 Sunil Kumar in FIR no.70/06 has alleged that it was in the hand of Jagat Singh. Admittedly accused Sunil Kumar had come from his work at that time and after parking his vehicle he came inside the house. Accused Jagat Singh was already present in the house. PW5 SI Randhir Singh has specifically stated that sickle (darat) i.e.weapon of offence was recovered at the instance of accused Jagat Singh from underneath bed in his house. DW2 Jagat Singh in FIR no.70/06 has also admitted that daraati was recovered by the police in this case and pointing out cum seizure memo Ex.PW3/D was prepared. PW5 SI Randhir has also stated that there was no blood on darat when it was recovered. Darat State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 19 of 33 was washed. As per evidence the weapon of offence was recovered from the house of Jagat Singh accused in FIR no.70/06. Therefore it is manifest that it was in the possession of Jagat Singh. Even IO has stated that it was washed which clearly show that it would have been washed by accused or his family members. DW1 Smt Nirmala who is the wife of accused Jagat Singh has stated that it is correct that Sunil Kumar was tenant in their house and he was not paying rent for the last several months. Considering the MLCs of Sunil Kumar and Jagat Singh, recovery of weapon of offence, place of incident i.e. ground floor of the house where accused Jagat Singh is residing and other evidence available on file, I am of the view that accused Jagat Singh in FIR no. 70/06 was aggressor. So, now I shall discuss the evidence adduced by the prosecution in FIR no. 70/06 since accused Jagat Singh in this FIR has been held aggressor.
FIR NO. 70/06 State Vs.Jagat Singh
25. In FIR no. 70/06 PW2 Sunil Kumar is the main star witness of the prosecution. He has specifically stated that he is residing at tenant in the house of Jagat Singh. On 26.2.06 he had parked his car in front of the house and knocked the door and it was opened by his State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 20 of 33 daughter. Hardly he climbed one or two stairs, accused Jagat Singh, hit a sickle (darat) on his head just below his waist and wrist. He raised noise. He identified the sickle Ex.P1. So, in his testimony PW2 Sunil Kumar has assigned the role of accused Jagat Singh that he had hit sickle (darat) on his head, just below his waist and wrist. There is no other witness examined by the prosecution regarding the incident. To corroborate his version with medical evidence, I have perused the MLC Ex.PW1/A. MLC finds mention 'Pain/injury bleeding scalp, Pain chest - right side back, pain hip/injury cut right side, pain left arm and elbow joint. On local examination following injuries were found: ● CLW 5x1x1 cm parietal region right ● CLW right hip with 4x1x1 cm ● CLW 1x1x1 cm left hand palmar aspect ● CLW 1x1x1 cm with wrist right with swelling ● Abrasion - right little finger ● Bruishes over the back right side at the level of 11th and 12th ribs. ● Scratch mark over the right arm, elbow joint mild tenderness.
26. He was admitted in the hospital by Ct.Birender Singh who has been examined by the prosecution as PW5 who alongwith PW4 IO SI Randhir Singh have stated that Sunil Kumar came to PS and met them at the gate of PS when they were coming out and he was removed to hospital. The version of injured Sunil is corroborated by State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 21 of 33 the MLC that he sustained injury on his parietal region, wrist and hip and fingers. It is well settled law that injured is the best witness to give true and correct account of the incident. Therefore submissions of Ld. Counsel for the accused that no other witness has been examined by the prosecution to corroborate the version of PW2 Sunil Kumar is not sustainable. I have also perused the cross examination of PW2 wherein he has stated that accused had hit him from behind. He immediately saw the accused when he hit him from behind. He further stated that accused had hit him from backside from sharp side of the sickle. He tried to save himself with his right hand. By putting these question, defence has further strengthened the case of the prosecution admitting that present accused had hit on the person of injured from backside and this is also the version of PW2 that he was hit from backside. In this case PW2 is the main star witness of the prosecution and whole case of the prosecution rests upon his testimony. He is the backbone of the prosecution case. He has assigned the role of accused Jagat Singh. In cross examination no question has been put by the Ld. Defence counsel to him that the accused Jagat did not cause any injury to them. In a Judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J. 410, it has been held by this Court that if there is a failure to crossexamine a witness in respect of a material assertion, it is to be presumed that that assertion State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 22 of 33 stands admitted. In the present case also the material assertion regarding causing injury by accused has not been challenged in cross examination. It is the case of the prosecution that injured PW2 came from his office and entered the house after parking his car outside the house. In cross case this assertion is admitted. It is quite impossible that injured had entered the house with sickle(drat) when he came after closing his office. On the other hand sickle was recovered from the house of accused Jagat Singh. It is admitted fact that injured was residing as tenant in the house of accused Jagat Singh. DW1 Smt. Nirmala who is the wife of accused has stated that Sunil Kumar was tenant in their house and he was not paying rent for the last several months. DW2 Jagat Singh has stated that case FIR no.209/03 u/s 354/511/509 IPC was registered against Sunil Kumar. It has also come in evidence that injured Sunil had filed case u/s 45 of DRC Act as well as another case for deposit of rent before Ld. ARC. Another case FIR 123/07 u/s 306/120(b)/34 IPC was registered against injured Sunil wherein it was alleged that injured harassed the daughter of accused and she committed suicide. But in that case, injured Sunil was discharged. Considering all the facts above, it is evident that there was enmity between injured Sunil and accused and that seems to be regarding rent of the premises in question as well as vacation of the State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 23 of 33 property. In view of the above discussions, there is clear motive to cause the injury on the persons of injured in case FIR no.70/06. It is also well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injureds are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw2 is the complainant and injured and he is the star witnesses of the prosecution and in his testimony he has assigned specific role of accused Jagat Singh in FIR no.70/06. Ld. Counsel for the accused has drawn my attention on the contradictions in the testimonies of witnesses. I have also perused the file and found some contradiction in their statements but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence in respect of the prosecution case, I have also perused and given my thoughtful consideration on the testimonies of other official witnesses.
State Vs. Jagat Singh FIR NO.70/06
State Vs. Sunil Kumar FIR no.71/06 Page No. 24 of 33
27. PW4 SI Randhir Singh is the IO of this case who has stated that he along with Ct. Virender came out from PS and injured Sunil met them at the gate who was sent to hospital with Ct. Virender. The prosecution has examined Ct. Birender as PW5. PW4 reached in the hospital and found injured admitted there. He recorded his statement, prepared rukka Ex.PW4/A and got the case registered. PW5 corroborated his version that he got the case registered. PW4 had prepared the site plan Ex.PW4/B. PW4 has further stated that accused was arrested on 16.3.2006 vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW4/C. He pointed out the place of incident vide memo Ex.PW3/E. Accused Jagat Singh was interrogated and he made disclosure statement which is Ex.PW3/B. PW3 HC Mukesh has corroborated the version of PW4 regarding arrest, personal search and disclosure statement. In his statement u/s 313 Cr.PC accused Jagat Singh has answered question no.6 as under: Q6 It is in evidence against you that you made a disclosure statement which was recorded vide Ex.PW3/B. What have you to say?
Ans. I do not know.
The above question has not been replied in affirmative or State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 25 of 33 negative. Be that as it may, I have also perused the disclosure statement Ex.PW3/B. On the basis of disclosure statement sickle (darat) was recovered from the house of accused Jagat from underneath his cot. So,this part of the disclosure statement is admissible in evidence. The darat was seized vide memo Ex.PW3/C and it was taken into possession vide memo Ex.PW3/D. It was also deposited in the malkhana. PW2 Sunil Kumar has identified the said sickle(darat) to have been used by accused Jagat and it is Ex.P1. Therefore the recovery of darat i.e. weapon of offence stand proved by the prosecution from accused Jagat Singh. I have also perused the cross examination of official witnesses but their testimonies could not be shattered by the Ld. Defence counsel.
28. I have also considered the defence evidence led by the accused. DW2 Jagat Singh is the accused himself and he has stated about certain cases filed by injured and others by his family against Sunil, injured. This version of DW2 makes is clear that they are inimical to each other. He has further stated that accused Sunil entered the house holding daraat in his right hand and uttered 'budhe aaj tera akhri din hai'. He caught hold of his right hand to save himself. When Sunil could not release his hand, then he hit with his knee of right leg State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 26 of 33 on his private part and dragged him outside the house where he gave him fist blow on his right eye and threw him on the ground. DW2 has stated that Sunil was having sickle in his right hand and he has also stated that he has given fist blow on his right eye. He himself had made contradictory statement because it is not possible for a person having sickle in right hand to give fist blow on right eye. DW1 Smt. Nirmala who is the wife of accused Jagat Singh has only stated that she saw injured Sunil dragging her husband out of the house and she saw dranti in his hand. But she did not state that injured Sunil has assaulted or beaten her husband. She also did not stated as to what was uttered by injured Sunil to her husband. Both the witnesses have made contradictory statement while both were present at the scene of incident. So, their testimonies are unworthy of credit and not believable.
FIR NO. 71/06 State Vs. Sunil Kumar
29. In case FIR No.70/06 the accused has been held aggressor and in FIR NO.71/06 he has examined himself as PW3. In his statement he has stated that on 26.2.06 at about 7.45 p.m he went State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 27 of 33 towards bathroom of his house and in the meanwhile accused also entered the house on ground floor and at that time he was having sickle (darat) and uttered 'budhe aaj tera akhri din hai'. He was wearing gloves. He(Jagat Singh) caught hold the hands of accused in order to save himself. Accused tried to release himself but he did not loose the grip. Accused hit his right knee on his testicle (private part) and he dragged him outside of his house on main road. The accused gave him fist blow on his right eye and made him lying on the road. Accused started giving him kick blow and first blows on his nose as a result of which blood started oozing out from his nose, mouth, ear and eyes. In his statement PW3 has not alleged that accused Sunil has ever tried to give blow with sickle (drat) on his person. However, he has alleged that he was beaten with legs and fists and blood started oozing out from his nose, mouth, ear and eyes. I have perused the MLC. There is no history of bleeding from mouth, nose, ear and nose is mentioned in the MLC. Further there is no injury mentioned which was sustained by PW Jagat Singh. Only sever pain on occipital area, pain abdomen and both side rib cage, pain in both testicles on respiration, pain at the root of the neck is mentioned. I have also perused the testimony of PW1 Dr. Krishan Kumar. He has stated that Dr. Avinash Prakash had examined patient Jagat and on examination State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 28 of 33 patient was having bilateral tenderness in the chest but on auscultation bilateral chest was clear. He has also stated that in abdomen there was vague pain in the whole abdomen. His vitals were within normal limit at the time of examination. So, the ocular version of PW3 is not corroborated by medical evidence in this case. Even the version of PW3 Jagat Singh has not been corroborated by his wife examined in connected case FIR no.70/06 as DW1 while she was present at the house. The alleged weapon of offence i.e. sickle was not recovered from accused Sunil but instead recovered from PW3 Jagat Singh from his house. Other witnesses in FIR no. 71/06 are police officials. The evidence led by the prosecution in case FIR no.71/06 is, therefore does not inspire confidence. Further accused Jagat Singh has already been held aggressor in this case as discussed above.
30. In the instant case FIR no. 70/06, PW2 has assigned the role of accused Jagat Singh in his statement. I have also considered the medical evidence. The prosecution has examined PW1 Dr. Krishan Kumar from Safdarjung Hospital in place of Dr.Kiran who had prepared the MLC of injured Sunil Kumar. The MLC is Ex.Pw1/A. I have also perused the MLCs. The nature of injury has been opined as simple blunt. Charge has been framed u/s 308 IPC. Accused has State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 29 of 33 caused simple injuries on the persons of complainant/injured. The doctor who has opined the injuries has not been examined.
31. In order to constitute the offence u/s 308 IPC, it must be proved, (1) that the accused committed an act, (2) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder, (3) that the offence was committed under such circumstances if the accused by that act had caused death he would have been guilty of culpable homicide. The most important circumstance in a case u/s 308 IPC would be that an act should be shown to be committed with the intention or knowledge to commit culpable homicide not amounting to murder. Intention is question of fact which is to be gathered from the acts committed by the accused and knowledge means awareness of the consequences of the act. It means the knowledge that specified consequences would result or could result by doing an act. By applying the aforesaid test, I am of the view that the injuries caused by accused Jagat Singh on the person of Sunil Kumar are superficial in nature. There injuries are not such which could link any manner result in the death of the injured person. Though Dr. Kiran who prepared the MLC has not been examined but PW1 Dr. Krishan who had been examined by the State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 30 of 33 prosecution in place of Dr. Kiran has stated in cross examination that it is possible that injuries shows on MLC Ex.PW1/A may be caused by falling from stair case though the possibility is remote. PW1 has specifically stated that such possibility is remote. I have taken into consideration the cross examination of PW2 Sunil Kumar. No question/suggestion has been put by Ld. Defence counsel to PW2 that he fell from stairs and sustained such injuries. So, the submissions of Ld. Counsel cannot sustain that injured had fallen from the staircase. There is also no suggestion put by the Ld. Defence counsel to PW2 that he himself had inflicted the injuries on his person.
32. For an act to constitute an offence to commit culpable homicide, the intention or knowledge of the aggressor to do something that would result in causing an injury that might lead to the death of the victim has to be visibly and clearly manifested. Here the evidence shows that accused Jagat Singh inflicted a mere simple injury on PW2 Sunil Kumar. The evidence discloses that accused Jagat Singh gave sickle blow on the person of injured Sunil and the nature of injury has been opined as simple. In these circumstances, the injury, can by no means be said to be such that victim could have died if the attempt has been successful. In consideration of the case law 1994 JCC 522 and State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 31 of 33 1994 JCC 689 and case law observed by our own Hon'ble High court in 1998 II A.D. (Cr.) Delhi, 21, by Hon'ble Justice Mr. Dalbeer Bhandari that: "In the absence of doctor's examination it is difficult to come to conclusion whether the injury caused by the appellant was grievous in nature? There is no other material on record by which it can be observed that the injury caused to the appellant was dangerous to the life. In this view of the matter the conviction of the appellant u/s 307 IPC can not be sustained. On consideration of the facts and circumstances of the case and in interest of justice I deemed it an appropriate to set aside the appellant conviction u/s 307 IPC maintaining the conviction of the appellant u/s 324 IPC the sentence is reduced to the period already undergone"
33. In this case as per the MLC the injury was opined by the doctor as simple. So, in view of the above case law, I am of the opinion that this case does not fall u/s 308 IPC and it falls only u/s 323 IPC.
34. Since accused Jagat Singh in FIR no. 70/06 has been held aggressor and in view of the discussions of testimonies of injured in FIR no.71/06; the accused namely Sunil Kumar in FIR no. 71/06 is acquitted for the commission of offence punishable u/s 323/341 IPC. Accused is on bail. So, his BB/SB is cancelled and surety is State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 32 of 33 discharged. File of FIR no.71/06 be consigned to record room.
35. As far as the evidence in case FIR no. 70/06 is concerned, I am of the view that the prosecution has left no stone unturned to prove its case against accused Jagat Singh as complainant/injured has assigned specific role to the accused Jagat Singh. There is evidence against the accused for causing injuries on the person of Sunil Kumar. I, therefore hold accused Jagat Singh guilty for the commission of offence punishable u/s 323 IPC and convict him thereunder. Copy of judgment be placed on both the files being cross cases. Announced in the open Court on 28.04.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 33 of 33 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS) DWARKA COURTS, NEW DELHI SC No.28/1/11 FIR No.70/06 U/s 308 IPC PS Delhi Cantt.
State Vs. Jagat Singh s/o Sh. Surjan Singh ..... Accused ORDER ON THE POINT OF SENTENCE Accused Jagat Singh has been held guilty for the commission of offence punishable u/s 323 IPC and convicted thereunder vide Judgment dated 28.04.2012 in case FIR no. 70/06.
2. I have heard the arguments on the point of sentence. During the course of arguments it has been submitted on behalf of accused/convict Jagat Singh that he is aged about 67 years. His wife is a housewife. He has no criminal record and has has clean antecedents. He is the first offender. There is no other case registered against him nor he is previous convict. He is only the bread earner in family. It has been further submitted that the convict undertakes to maintain peace and be of good behaviour if he is State Vs. Jagat Singh FIR NO.70/06 State Vs. Sunil Kumar FIR no.71/06 Page No. 34 of 33 released on probation. Ld.counsel has submitted that benefit of probation may be given to the convict.
3. In consideration of the submissions made by Ld.Defence Counsels on behalf of the convict and in the facts and circumstances of the present case and since the main dispute between the accused and complainant seemed to be for vacating the rented premises and also since the convict has no criminal history and he is not previous convict or involved in any activities and case after this case & as per his version he undertake to maintain and keep peace and be of good behaviour, I feel it to give the benefit of probation to convict in this case. Therefore, convict Jagat Singh is given the benefit of probation. He be released on probation on his entering into bonds in the sum of Rs.5000/ with one surety in the like amount, to appear and receive the sentence when he is called upon during the period of one year from the date of entering into the bond and in the mean time he shall keep peace and be of good behaviour u/s 323 IPC. Copy of judgment and copy of order on the point of sentence be given to the convict free of cost. File be consigned to record room. Announced in the Open Court on 30.04.2012.
(SURESH CHAND RAJAN)
ADDL.SESSIONS JUDGE/
SPECIAL JUDGE(NDPS)
NEW DELHI
State Vs. Jagat Singh FIR NO.70/06
State Vs. Sunil Kumar FIR no.71/06 Page No. 35 of 33