Delhi District Court
State vs . 1. Mamchand S/O Khem Chand, on 8 March, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions Case No. 350/06
State Vs. 1. Mamchand S/o Khem Chand,
R/o 17/411, Trilokpuri, Delhi.
2. Rajender Kumar S/o Sh. Babulal
R/o 7/41, Trilokpuri, Delhi.
3. Rajesh @ Bobby S/o Rajender
Kumar, R/o 7/41, Trilokpuri,
Delhi.
4. Sonu @ Sunil S/o Khem Chand,
R/o 17/411, Trilokpuri, Delhi.
FIR No. 111/03
PS Kalyanpuri
U/S 308/323/34 IPC.
J U D G E M E N T : To establish a case of attempt to culpable homicide, not amounting to murder, prosecution is under an obligation to prove the following counts: (1) That the accused did an act. (2) That he did with(A) the intention of(a) causing such bodily injury as is likely to cause death, or (b) causing death (i) on grave and sudden provocation not courted, or (ii) in the exercise of the right of private defence which was, however, exceeded, or (iii) believing that he doing so in the lawful discharge of his public duty; or (iv) by consent of the deceased; or (B) the knowledge (i) that the act was likely to cause death. To which may be added the following aggravating circumstance (3) that the act caused hurt to the person upon whom the attempt was made.
2. Whether prosecution has been able to establish aforesaid ingredients in the present controversy? For an 2 answer, facts gain importance. As emerged out of the report under section 173 of the Code of Criminal Procedure, 1973 (in short the Code), it was Holi festival on 19.03.03. On that day at about 7.30pm, Rajender, Savitri and Rajesh were present inside house No. 7/42, Trilokpuri, Delhi. Neeraj, younger son of Hari Ram, was sitting on a two wheeler scooter in front of their house. Mamchand, along with his relation Rajender Singh, came out of his house bearing municipal number 17/411, Trilokpuri, Delhi, and abused Neeraj. Sonu, brother of Mamchand, his fatherinlaw, namely, Rajender Singh, and his brotherinlaw Rajesh @ Bobby also came out of their house and started abusing Hari Ram and his family members. Mamchand exhorted his associates that Hari Ram and his family be put to death. Mamchand and Sonu started giving fist and kick blows to Neeraj. Neeraj raised an alarm for help. Hari Ram, his wife Savitri, and his sons, namely, Rajender and Rajesh came out of their house. They saw Rajender armed with a club and Rajesh having a brick in his hand. Mamchand and Sonu caught hold of Hari Ram and started assaulting him. Rajender wielded a brick blow over his head and Rajesh @ Bobby grappled with his son Rajender. Thereafter, aforesaid persons started pelting brickbats and stones. They also assaulted Seema, daughterinlaw, of Hari Ram, who was pregnant at that time. Since Seema felt pain in her abdomen, she was removed to hospital by Savitri. Police was informed. Hari Ram lodged a report, which became bedrock of the case.
3 Accused persons were arrested and sent for trial, after conclusion of the investigation.
3. Charge for offences punishable under sections 308 and 323 read with section 34 of the Penal Code was framed against accused persons, to which charge they pleaded not guilty and claimed trial.
4. To substantiate the charges, prosecution has examined Hari Ram (PW1), Neeraj (PW2), Rajender (PW3), Rajesh (PW4), Ashwani Kumar (PW5), Savitri (PW6), Seema (PW7), Veer Sain, Head Constable (PW8), Udai Pal ASI (PW9), Dr. Rakesh Singh (PW10) and Rajender Singh, Head Constable (PW11) in the case.
5. Veer Sain, Head Constable, joined investigation of the case on 19.03.03. He reached premises No. 4/70, Trilokpuri, Delhi, along with Udai Pal ASI, where Neeraj and Rajender were found in injured condition. They were removed to LBS Hospital, where they were medically examined, deposes the witness. Rajender Singh, Head Constable, reached the spot on 19.03.03 along with Surat Singh, Constable. During his stay at the spot, Udai Pal ASI reached there. Rajender Singh associated himself with Udai Pal ASI, reached Khichiripur, where MLC of Sonu was collected. Thereafter, they returned at the spot and recorded statement of Hari Ram. Case was got registered and accused persons, namely, Sonu, Rajender and Rajesh were arrested that day at the instance of Hari Ram, deposed the witness. Dr. Rakesh Singh proved MLCs of 4 Seema, Neeraj, Hari Ram and Ashwani @ Sonu, which MLCs were prepared by Dr. Ram Kumar. He proved those MLCs as Ex.PW10/A, Ex.PW10/B, Ex.PW10/C and Ex.PW10/D respectively. Udai Pal ASI conducted investigation of the case and detailed investigative steps taken by him. He presents that statement of Hari Ram was recorded, which became bedrock of the case. He arrested accused persons at the instance of Hari Ram. He collected MLCs and opinion of the doctor as to the nature of injuries sustained by injured persons. Witnesses, namely, Hari Ram, Neeraj, Rajender, Rajesh, Ashwani Kumar, Savitri and Seema were examined to prove facts of the case.
6. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 of the Code. They denied all allegations against them. According to them, Hari Ram consumed liquor and abused public persons at large. A crowd had collected at the spot. Persons present in the crowd pelted stones on Hari Ram, who was under influence of liquor. In that rioting, Hari Ram, Savitri, Seema, Neeraj, Sonu and Ashwani sustained injuries. They claimed that they had not caused injuries on victims. According to them, they are innocent and have been framed in the case. They had not led any evidence in their defence.
7. Arguments were heard at the bar. Sh. R.K. Pandey, Ld. Prosecutor, had presented facts on behalf of the State. Sh. N.K. Tyagi, Advocate, had advanced arguments on behalf of 5 the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :
8. Hari Ram details that accused Rajender resides in his neighbourhood. On 19.03.03, it was Holi festiveal. He had an altercation with Rajender and his associates over a petty matter. A complaint was made to the police. Police reached there. A crowd had collected there. Someone from crowd pelted stones over him, as a result of which he sustained injuries over his chest. Neeraj, Savitri, Seema and Rajender also sustained injuries in pelting of stones and brickbats. He announced that accused persons had not caused injuries to him as well as to aforesaid injured persons. Since Hari Ram opted not to support prosecution' s case, he was cross examined by the Ld. Prosecutor. Vigorous efforts, made by the Ld. Prosecutor, proved futile since nothing incriminating could be taken out of his mouth. It is, therefore, evident that testimony of Hari Ram is of no avail to the prosecution.
9. Witnesses, namely, Neeraj, Rajender, Rajesh and Ashwani had adopted same posture qua the prosecution. None of them raised an accusing finger against the accused persons. Since aforesaid witnesses had turned hostile, they were cross examined by the Ld. Prosecutor. Despite vigorous efforts, nothing incriminating was taken out of their stomach wash. It is evident that depositions of Neeraj, Rajender, Rajesh and 6 Ashwani nowhere provide accolades to the prosecution.
10. Smt. Savitri entered the witness box to unfold facts. She narrates that it was 19th day of English calender month, about four years ago, it was Holi that day. At about 7.30pm, she was present in her house. He son Neeraj was present outside the house. Neeraj cried for help, she came out and saw accused Mamchand, Sonu and Rajender and his son Bobby assaulting her son Neeraj. Accused Rajender was having a club in his hand. Her husband also came out of the house. Accused Rajesh @ Bobby gave a blow over the head of her husband, who became unconscious. Accused Sonu caught hold of her collar and pushed her to some distance away. He also gave a kick blow to her. Accused Rajesh gave kick blows to Seema, who was pregnant at that time. She was dragged and assaulted, hence she sustained injuries. Sonu, who is their neighbour, also sustained injuries in the incident, when he tried to intervene. Accused persons pelted stones and brickbats and in that process Sonu sustained injuries. Seema was taken to hospital for medical examination. When her testimony was purified by an ordeal of crossexamination, she admits that a complaint case was filed against her husband, Hari Ram and Rajender, Rajesh and Neeraj. She further admits that accused persons were not named before the doctor as assailants. When facts testified by Smt. Savitri were assessed on anvil of ordinary human behaviour and tenets of veracity, it came to light that defence could not assail her 7 testimony on material counts. It is evident that Smt. Savitri has projected true picture, which occurred on the date of incident. No motive was attributed to the witness to show that she was biased against the accused persons. Her depositions were found to be convincing and aboveboard. She fared well in crossexamination. Facts testified by her gave a consistent and trustworthy story. Therefore, I am of the considered opinion that testimony of Smt. Savitri is worthy of credence.
11. Seema aslo entered the witness box. She unfolds that on 19.03.03 at about 7.30pm, she was present at her house. She heard noise of commotion coming out of the street. Accused Rajesh @ Bobby and Sonu entered their house. One of them caught hold of her hands and other caught hold of her hairs. They dragged her outside. They gave slap and kick blows to her. She fell down and sustained injuries. She became unconscious. Police reached there and she was taken to LBS Hospital for treatment. When she was dragged by the accused persons, her fatherinlaw was lying unconscious on the ground and accused Rajesh, Mamchand and Rajender were assaulting her husband Rajender. Mamchand lifted stone and wielded a blow over the head of Neeraj, her brotherinlaw. Facts unfolded by the lady reaffirm the events detailed by her motherinlaw. It is not the case of defence that this witness was not present at the spot. Her testimony is not at all questioned on the count that she entered the witness box with a motive to harm the accused persons. Her testimony could not 8 be shaken during the course of crossexamination. Her demeanour remained satisfactory. Nothing abnormal came over the record to show that facts detailed by her are farther from truth. She faced ordeal of crossexamination with confidence. No inherent infirmity or defect was highlighted in her testimony. There are no reasons to disbelieve her.
12. Out of the facts testified by Smt. Savitri and Seema, it came to light that on 19.03.03 at about 7.30pm, Neeraj cried for help, who was present outside his house. Savitri came out of her house and saw accused Rajender having a club in his hand. Rajesh gave hit from his head over the head of her husband, as a result of which her husband became unconscious. Sonu caught hold of collar of Savitri and thrown her at some distance. He gave a kick blows to the lady. Rajesh @ Bobby and Sonu dragged Seema, who was pregnant at that time. They caused injuries to the Seema also. From facts unfolded by these two witnesses, it is evident that accused persons quarreled over a petty matter and Neeraj, Hari Ram, Savitri and Seems sustained injuries in the incident. Injuries sustained by them were of simple in nature. It has not emerged over record that accused persons had an intention to attempt on the lives of aforesaid persons. No such evidence has been projected, which may show that there was an intention on the part of accused persons to cause such injuries on the person of Hari Ram, Neeraj, Savitri and Seema, which may likely result in their death.
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13. Knowledge implies consciousness. That consciousness is necessarily of a future contingency the happening of which may depend upon a variety of circumstances, all of which cannot possibly be present in the mind of offender. For, it is not necessary that, in order to constitute the offence of culpable homicide, the death should has ensued immediately after the act or that no other contributory cause should had supervened in the interval. The offender could not be expected to forsee so far ahead. Nor does the action requires it. It requires, however, such knowledge as man in his position might be expected to possess. For instance, if A strikes B on the head with a heavy stick, it is common knowledge that B is likely to die of the stroke. He may recover, but his death was more likely. This inductive inference is termed "knowledge" under section 308 of the Penal Code. In strictness it is not knowledge at all, for there can be no knowledge without perception. But it is knowledge in its wide sense as connoting such inference as to a future probability as is only next to perception. In this sense, it is something more than belief, because it is based upon reasoned inference. It is much more than conjuncture which is merely a mental leap into the dark. Knowledge is, off course a mental acta condition of the mind and as such incapable of direct proof. Not the best evidence procurable can, therefore, warrant a finding that the accused know a certain fact. All that such evidence would justify is a finding that its knowledge was 10 extremely probable. And this is all that the law requires.
14. Facts projected by Savitri and Seema nowhere suggests that accused persons were aware that injuries, which they were causing would result in death of the victims. Hitting head of another with one' s head would not produce result of death. Throwing a lady away, dragging her, assaulting her with fist and kick blows never result in death of the lady. Assaulting a pregnant lady on her abdomen may cause miscarriage. But no such evidence has been brought over the record that such assault was made. Injuries sustained by the victims were simple. Hence, it cannot be said that the accused persons had knowledge that the injuries which they were causing to the victims would result in their deaths. Consequently, it is evident that prosecution has not been able to establish ingredients for offence punishable under section 308 of the Penal Code against the accused persons. However, it has been established to the hilt that accused persons voluntarily caused simple injuries to Hari Ram, Savitri, Neeraj and Seema with blunt objects. Evidence brought over record is sufficient to hold them guilty for causing simple injuries to the aforesaid victims. Accordingly, accused persons are acquitted of the charge for an offence punishable under section 308 read with section 34 of the Penal Code. However, they are held guilty and convicted for an offence punishable under section 323 read with section 34 of the Penal Code.
Announced in the Open Court On this 7th day of March, 2007.
(Dr. R.K. Yadav) Additional Sessions Judge :
Karkardooma Courts, Delhi. 11 IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :Sessions Case No. 350/06
State Vs. 1. Mamchand S/o Khem Chand, R/o 17/411, Trilokpuri, Delhi.
2. Rajender Kumar S/o Sh. Babulal R/o 7/41, Trilokpuri, Delhi.
3. Rajesh @ Bobby S/o Rajender Kumar, R/o 7/41, Trilokpuri, Delhi.
4. Sonu @ Sunil S/o Khem Chand, R/o 17/411, Trilokpuri, Delhi.FIR No. 111/03
PS Kalyanpuri U/S 323/34 IPC.
ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. N.K. Tyagi, Advocate, pleading therein that convict Mamchand is employed in NDMC as a sweeper. He submits that in case he is sentenced to custodial sentence, then he would loose his job. He further presents that family responsibility lies on his shoulder, since he is only bread earner to support his wife and two children. He further argued that he is a man with clean antecedents.
2. Convict Rajinder is employed in Municipal Corporation of Delhi as a supervisor. He has to maintain his family consisting of his wife, two daughters and one son. Sh. Tyagi argued that this convict never came in conflict with law, except the incident under reference. He seeks leniency on his behalf also.
3. Convict Rajesh is a young man, aged about 24 years, 12 with clean antecedents. Sh. Tyagi presents that he has to maintain his aged parents. In case, he is sentenced to custodial sentence, then support of his aged parents would be lost. Sh. Tyagi presents that it is a fit case in which leniency should be shown to convict Rajesh also.
4. Convict Sunil is aged about 29 years and has responsibilities of his parents, wife and children, argued Sh. Tyagi. Sh. Tyagi presents that he is also a man with clean antecedents and this incident occurred on account of audacity of Holi season. He claims leniency on behalf of the convict persons.
5. On 19.03.03 at about 7.30pm, an altercation took place between convict persons and Hari Ram. Convict persons assaulted Hari Ram, his son Neeraj, wife Savitri and daughter inlaw Seema. They caused injuries to them. Convict persons and Hari Ram are neighbours. Considering all these aspects, I am of the considered view that it is a fit a case, where leniency should be shown in the matter. Taking into account conduct, antecedents of convict persons and facts and circumstances of the case in totality, I think it expedient to release convict persons after due admonition. Therefore, they are admonished and released.
6. However all the four convict persons are earning hand. Consequently, they are ordered to deposit Rs.2000/ each as cost of proceedings and Rs.3000/ each as compensation to be paid to the victims. In case, cost of proceedings and amount of compensation are not paid, same would be recovered as fine. Announced in the Open Court On this 8th day of March, 2007.
(Dr. R.K. Yadav) Additional Sessions Judge :
Karkardooma Courts, Delhi.