Delhi District Court
State vs 1. Sanjay S/O Kuldeep Sharma on 19 December, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 191/10
State Vs 1. Sanjay S/o Kuldeep Sharma
R/o H.No. B426, Gali No.5,
Jaitpur Extn., PartII, Khadda Colony,
Badarpur, New Delhi
2. Kartik S/o Brahm Dev
R/o Village Sultan Ganj,
PS Sultan Ganj, Distt. Bhagalpur,
Bihar
3. Surjit (Proclaimed offender)
FIR No: 901/07
P.S. Badarpur
U/s. 308/452/34 IPC
DATE OF INSTITUTION : 10.01.2011 (Initial date
of Institution 20.08.2008)
JUDGMENT RESERVED ON : 12.12.2011
DATE OF DECISION : 19.12.2011
JUDGMENT:
1. Prosecution case in brief is that on receiving DD no. 31A dated 13.12.2007 at around 11.00 p.m., ASI Mahender Singh alongwith Ct. Devender reached AIIMS hospital where he found injured Kundan Thakur unfit for statement and thereafter he alongwith Ct. Devender reached the spot and found brother of the injured Manoj Kumar who State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-1) reported about the quarrel but as had not witnessed the same therefore, on the basis of MLC rukka was prepared and FIR u/s. 308 IPC registered.
2. After injured Kundan Thakur discharged from the hospital, IO/ASI Mahender Singh recorded his statement on 14.12.2007 in which he alleged that on 13.12.2007 at around 7.00 p.m., he and his younger brother Manoj both were sitting at the shop of Om Prakash and his brother called Sanjay from whom he has to take Rs. 300/ but Sanjay had refused to give the money and on this altercation took place with Sanjay and Sanjay was slapped by his brother Manoj thereafter Sanjay left shop by threatening them that he will take revenge. He further alleged that at around 8.30 p.m., he and Om Prakash was taking food, when Sanjay alongwith his brother Surjeet and relative Kartik came both Surjeet and Kartik having dandas and thereafter Surjeet hit him with legs and Sanjay caught hold of him and further Surjeet hit him on dandas on his head and thereafter they had taken him in the street and he fell unconscious and all the three had ran away from the spot. Thereafter, police took him to the hospital. Pursuant to recording of his statement, at his instance site plan was prepared and further at his instance Sanjay was arrested and accused Surjeet and his relative Kartik found to be absconded and further at instance of Sanjay, the broken danda used by coaccused Surjeet recovered and MLC of the injured was collected and doctor opined that injury suffered by Kundan State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-2) Thakur simple in nature though by sharp instrument. On completion of investigation chargesheet was filed against accused Sanjay and NBWs were taken for accused Kartik and Surjeet. Later on accused Kartik was arrested 21.05.2008 and consequently supplementary chargesheet was filed against him.
3. On committal , charges u/s. 452/308/34 IPC were framed against accused Sanjay and Kartik and accused Surjeet was declared P.O.
4. Prosecution for substantiating the charge has examined 12 prosecution witnesses. Summary details of their deposition is as follows.
5. PW1 HC Jayanti Prasad deposed that he recorded FIR. PW2 ASI Dharam Pal deposed that he made DD entry regarding admission of injured Kundan Thakuar in Trauma Center, AIIMS vide DD no. 31A. PW3 Dr. Manish Goyal deposed that on 15.12.2008 at around 3.50 p.m., patient Kundan Thaukar was brought by Ct. Ram Kishan for taking his blood sample and he took his blood sample and sealed the same and handed over.
6. PW4 HC Yudhveer deposed that on receiving DD no. 31A he alongwith ASI Mahender Singh reached Trauma Center where they found injured unfit for statement and thereafter they went to the spot where IO had prepared the rukka and handed over him for registration State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-3) of FIR. On 20.12.2005, at instance of injured Kundan Thakuar accused Sanjay was apprehended and his disclosure statement was recorded. Further he pointed out the place of occurrence and accused took them to his house and produced one danda by stating that he used that danda in the crime. He further deposed on 14.12.2005 Kundan Thakur complainant had handed over his blood smeared jacket.
7. PW5 Dr. Girish Kumar Kenkara who deposed on behalf of Dr. Priyanka Maini and deposed that on 03.12.2007 injured Kundan Thakur was brought to hospital with alleged history of assault by sharp instrument at 7.00 p.m. and there is loss of consciousness and on examination smell of alcohol was present and on local examination laceration over left forehead, left parital region and left occipital region found and Dr. Priyanka opined the nature of injury as simple with sharp weapon.
8. PW6 Ct. Ram Kishan had taken injured Kundan Thakur for taking his blood sample at AIIMS.
9. PW7 Om Prakash deposed that on 13.12.2007 he was at his home and having a shop in gali no. 13, where Kundan Thaukar and Munna were sitting in his shop and Sanjay was called and quarrel took place and Kundan had slapped Sanjay and thereafter he alongwith Kundan went to his house and after sometime Sanjay, Surjeet and Kartik came State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-4) to his house and started beating Kundan with stick who received injuries on his head. In cross examination he deposed that when quarrel took place no public person was present and public persons gathered after quarrel and denied suggestion that no such quarrel took place. He further deposed that he do not know whether the stick was of brass or wood.
10. PW8 Ct. Devraj deposed that on 21.05.2008, IO interrogated accused Kartik in court and also formally arrested him and also recorded his disclosure statement. PW9 HC Kali Charan MHC(M) deposed that on 14.12.2007, IO deposited one sealed pulanda containing jacket and on 20.12.2007 deposited one parcel containing stick. PW10 Ct. Mukesh deposed that he deposited two sealed parcel in FSL Rohini on 28.02.2008.
11. PW11 Dr. Rajender Kumar, Asst. Professor Biology, FSL deposed that blood detected on Ex. 1 and Ex. 2 and blood was shown as human blood of group B.
12. PW12 SI Mahender Singh deposed that on 13.12.2007 on receiving DD no. 31 he went to AIIMS hospital where injured was found unfit for statement and thereafter he went to spot and found his brother Manoj Kumar who told about the incident but stated that he is not the eye witness of the incident, he prepared rukka pursuant to which FIR State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-5) was registered. On 14.12.2007, he went to AIIMS and came to know that injured was already discharged. Thereafter he went to house of injured and prepared site plan at his instance and injured also produced the blood stained jeans. In the meantime, his friend Om Prakash also reached and statement of both recorded u/s. 161 Cr.P.C. He further deposed that on 20.12.2007 he alongwith injured and Ct. Yudhveer had arrested accused Sanjay at the instance of injured and recorded his disclosure statement and prepared the pointing out memo of place of occurrence at the instance of accused Sanjay and at his instance one danda which was in two pieces having blood stains was recovered. On 15.02.2008 Ct. Ram Kishan was sent to AIIMS hospital to collect the blood sample of injured Kundan. He further deposed that on 18.02.2008 he filed the main chargesheet and obtained the NBWs of coaccused Kartik and Surjeet and on 21.05.2008 accused Kartik surrendered in the court and thereafter he was arrested and his disclosure statement was recorded further supplementary statement was filed and accused Surjeet was declared PO.
13. In cross examination, stated that he left the police station for inquiry at about 11.15 p.m. and reached hospital at around 12.15 - 12.30 a.m. And collected the MLC of injured Kundan Thakur but could not find any eye witness. Further had not taken signature of any public person on rukka and not joined any public witness at the time of recovery of danda.
State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-6)
14. Accused persons in their statement u/s. 313 Cr.P.C. denied all the incriminating circumstances and stated that they were falsely implicated in the present case but not opted to lead any defence evidence.
Material Exhibits:
15. Ex.PW2/A DD no. 31A dated 13.12.2007, Ex.PW12/A is the rukka prepared by ASI Mahender Singh on 14.12.2007 pursuant to which FIR Ex.PW1/A registered. Ex.PW12/B site plan of the spot prepared at the instance of injured Kundan Thakur. Ex. PW4/A is the seizure memo of blood stained jeans jacket of injured Kundan Thakur. Ex.PW4/D is disclosure statement of accused Sanjay, Ex.PW4/E is the arrest memo of accused Sanjay, Ex.PW4/F is seizure memo of danda at the instance of accused Sanjay, Ex.PW5/A is the MLC of injured Kundan Thakur showing injuries simple in nature caused by sharp weapon. Ex.PW11/A is the FSL report and Ex.PW11/B is the serological report found blood human on the recovered dandas but no reaction.
16. Ld. counsel for the accused submitted that accused persons are falsely implicated in this case. And the main injured Kundan Thakur had died State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-7) even before the deposition in the court and thus, the main witness of the incident could not be examined before the court. Ld. Counsel for the accused further submitted that PW7 Om Parkash another alleged eye witness of the incident is an interested witness and has disclosed the incident before the court selectively. Ld. Counsel for the accused further submitted that recovery of the danda is planted by the police and same is not recovered at the instance of accused Sanjay.Ld. Counsel for the accused submitted that as per MLC the injury suffered by the injured is from some sharp object whereas as per prosecution the said injury is due to danda and this discrepancy is enough to grant benefit of doubt to the accused.
17. Ld. Addl. PP on the other hand submitted that PW7 Om Parkash had categorically stated in his statement that accused Sanjay, Kartik and Surjeet (PO) had beaten the injured Kundan Thakur with sticks on his head and said incident also taken place inside his house. And his testimony is unimpeached in cross examination and further corroborated by medical evidence. Ld. Addl. PP submits that in MLC the weapon is shown to be sharp. But this does not mean that the said injury could not be inflicted from the danda recovered from the accused and the medical evidence also shows that accused suffered laceration on head which could be caused from danda also. Thus, this discrepancy that the said injury could not be caused by danda is immaterial. Ld. Addl. PP submits that prosecution has proved its case State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-8) beyond doubt and as accused had beaten injured in his house therefore, they are liable for conviction u/s 452/308/34 IPC.
18. Arguments heard. Record perused.
19. Prosecution case as per the statement of injured Kundan Thakur that when he alongwith his younger brother Manoj were sitting in the shop of Om Parkash his brother called Sanjay who had to give Rs. 300/ of his brother, on this some altercation took place and accused Sanjay was slapped by his brother . Thereafter he went from there by threatening that he will take revenge and at about 8.30 pm when he was taking food at the house of PW7 Om Parkash, accused Sanjay alongwith his brother Surjeet (PO) and one relative Kartik (co accused) came and both Surjeet and Kartik having dandas in their hand. He further alleged that accused Surjeet hit him on legs and Sanjay caught hold of him and further Surjeet hit him on his head and thereafter he fell unconscious and all the three fled away from the spot. As per prosecution thereafter he was taken to AIIMS hospital and as police did not find him fit for statement came to spot and made inquiries from his brother Manoj who stated that he was not the eye witness therefore on the basis of this information and MLC record, they prepared rukka and registered FIR. On the next they recorded the statement of injured Kundan Thakur and PW7 Om Parkash.
State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-9)
20. Injured Kundan Thakur died before recording of his deposition before this court therefore, prosecution could examine only one eye witness i.e, Om Parkash PW7 and Manoj was not made witness by prosecution. PW7 in his testimony stated that a quarrel took place at his shop between Sanjay and Kundan and Kundan had slapped Sanjay and after some time Sanjay, Sudhir and Kartik came to their house and all started beating Kundan with stick and Kundan received injuries on his head and police had taken Kundan to the hospital. In cross examination he denied suggestion that no quarrel had taken place in his house and further stated that at that time no public persons were present and collected later.
21. In this deposition, this PW7 had not told anything about Manoj brother of the injured Kundan Thakur. Though as per the prosecution case, the dispute is due to the recovery of the money which Manoj had to take from accused Sanjay and accused Sanjay was slapped by Manoj whereas in this testimony PW7 deposed that accused Sanjay was slapped by injured Kundan. This witness further states that after sometime, accused Sanjay, Sudhir and Kartik came to his house and started beating Kundan with sticks and Kundan received injuries on his head. This witness had not clarified the role of the accused persons and only stated that they all started beating Kundan with sticks and Kundan received injuries on his head which is in deviation with the prosecution story which narrates that accused Sanjay had caught hold State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-10) of injured Kundan Thakur and accused Surjeet (PO) hit him on the head. Though Kartik was also present at the spot alongwith them with danda.
22. The legal hurdle is that PW7 was not confronted with his testimony u/s 161 Cr.P.C and whatever the injured Kundan had stated in section 161 Cr.P.C is not admissible and cannot be used to discredit the testimony of PW7. Therefore this court has the testimony of PW7 only for analysing the description of the incident and as per testimony of this PW7 injured Kundan Thakur was beaten by accused Sanjay, Kartik and Sudhir with sticks.
23. As per medical evidence injured had received injuries on his head which is opined to be simple and caused by sharp weapon. But in the present case the injuries were caused by danda which is not a sharp weapon. Now the question is whether on the basis of this opinion, the testimony of PW7 Om Parkash could be discredited or not. The MLC also mentioned laceration on left forehead. The injuries of laceration could always be due to the danda blow. Therefore, in these circumstances the testimony of PW7 cannot be discredited just on the basis of medical opinion that injuries were caused by sharp object. Now, if the testimony of PW7 is read with the medical evidence, it is clear that the injured was beaten by accused Sanjay, Kartik and Surjeet (PO). It appears that due to some confusion of name or typographical State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-11) error instead of Surjeet, Sudhir is typed in the testimony of PW7.
24. Apart from this, prosecution has relied upon the circumstance of recovery of danda in pursuance to the disclosure statement of accused Sanjay. And blood was shown on both sides of the danda and same was shown to be recovered on 20.12.07 i.e, after 6 days of the arrest. But this danda was not shown to the injured Kundan Thakur during investigation nor it was shown to PW7 in his testimony. It is unlikely that in these circumstances the blood could be on both ends of danda and as per seizure memo of Danda Ex.PW4/F the danda appeared to be thick on one side and thin on other side and from thick side it appears to be broken but as per FSL report though blood was found to be of human but no reaction of blood was on danda. It is unlikely that if any person hit with such type of dandas then he will keep danda for 6 days in his house in broken condition, when police is chasing him for last 6 days and further as no blood group was found on danda recovery of danda appears to be fictitious.
25. But from the testimony of PW7 alongwith the MLC of injured Kundan Thakur it is clear that both the accused alongwith absconding accused Surjeet had come to the house of injured and beaten him with sticks. In these circumstances even if there was no recovery of stick then also it cannot be inferred that the injured was not beaten by the sticks. But as PW7 had not specified the specific roles of the accused persons and it State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-12) is not the prosecution case that all the 3 accused had beaten the injured Kundan with different dandas, then from the statement of PW7 only one thing can be inferred that all 3 accused had come with common intention to cause injury to the injured Kundan Thakur and as per MLC it appears to be simple in nature. Therefore, it cannot be inferred that by causing such injury, the accused persons in furtherance of their common intention wanted to cause such injury with such intention and knowledge which likely to cause death of the injured. Therefore, no offence u/s 308/34 IPC is made out against the accused persons but it is very well evident from the evidence that the accused persons had in furtherance of their common intention had caused injuries to the injured which were found to be simple in nature by entering into house of PW7, thus found guilty for commission of offence u/s 452/323 /34 IPC. Though, there is no charge u/s 323 IPC but it is a minor offence in comparison to offence u/s 308 IPC and is of the same nature and species, thus accused could be convicted under the same even without formal charge.
26. Thus on overall appreciation of evidence, the accused Sanjay and Kartik are found guilty for commission of offence 452/323/34 IPC and convicted accordingly. Be heard on point of sentence.
Announced in Open Court
On 19th December, 2011 (AJAY KUMAR JAIN)
ASJ03/South East District
State vs. Sanjay etc., SC No. 191/10, (Contd.. pg-13)