Delhi District Court
State vs . Yunus & Anr. on 22 May, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
STATE VS. YUNUS & ANR.
FIR NO. : 344/07
P.S. : Tilak Marg
U/Sec. : 324/34 IPC
JUDGMENT :
a) Srl. No. of the case & Date of institution : 428/2 & 15.11.2007
b) Date of commission of offence : 19.09.2007
c) Name of the complainant : State through Vicky
d) Name of the accused : 1. Yunus S/o Sh. Allah Noor R/o H.No.AII/319, Madangir, New Delhi
2. Pawan S/o Sh. Gaya Prasad R/o H.No.882, Gautam Puri, Phase Ist, P.S. Badarpur, New Delhi.
e) Nature of offence complained of : U/Sec.324/34 IPC f) Plea of the accused person : Accused pleaded not guilty g) Date reserved for order : 03.05.2012 h) Final Order : Convicted i) Date of order : 19.05.2012
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. In brief the chargesheet was filed against accused Yunus and Pawan U/Sec. State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 2 324/34 IPC on the basis of allegations that on 19.09.2007 both the accused as well as the complainant Vicky were in jail as undertrial prisoners and on that day when at about 9.00 a.m. they reached the Lockup, Patiala House Court, New Delhi for attending their respective cases, both the accused persons in furtherance of their common intention voluntarily caused simple injuries with sharp edged weapon i.e. surgical blade on the person of complainant Vicky.
2. After completion of investigation, chargesheet was filed. After supplying the copies to accused persons U/Sec.207 Cr.P.C and after consideration of the entire material, the Ld. Predecessor Court vide order dated 29.11.2007 held that prima facie a case U/Sec.324/34 IPC was made out against both the accused persons and accordingly charge was framed against both the accused U/Sec. 324/34 IPC to which they pleaded not guilty and claimed trial.
3. During the pendency of the trial, the accused Yunus died on 27.07.2010 and the proceedings against him stood abated. Thereafter the case was proceeded further against the other accused Pawan.
4. The prosecution had cited 13 witnesses, out of which 9 witnesses were examined.
5. Statement of the accused Pawan was recorded U/Sec.313 Cr.P.C. on 18.01.2011 wherein he denied the case of the prosecution and pleaded innocence. He said that he was falsely implicated in this case and that he had nothing to do with the commission of the alleged offence. Though he opted for leading evidence in his defence but despite grant of a number of opportunities, he failed to lead any State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 3 evidence in his defence.
6. I have heard the final arguments from Ld. APP Sh. Honey Goel and Ld. defence counsel Sh. Piyush Aggarwal, legal aid counsel and gone through the record.
7. Let us first examine the evidence led by the prosecution. The first witness of the prosecution i.e. PW1 is complainant Vicky who deposed that he was detained in Tihar Jail in the year 2007 in connection with FIR No.186/2006 U/Sec.302 IPC P.S. Ambedkar Nagar and on 19.09.2007 when they were coming to the lockup, Patiala House Courts in the morning from Tihar Jail, accused Pawan and Yunus threatened him by saying, "Aaj tujhe maar dengey" and when at about 8.00 a.m. they reached the lockup of Patiala House Courts and he was passing through the search point before entering into the lockup, accused Pawan caught hold him from behind and asked accused Yunus, "Aaj iska kaam tamam kar dengey"
and accused Yunus took out a surgical blade, wrapped in a handkerchief, and inflicted injuries on the right side of his neck and his head. He further deposed that accused Pawan asked accused Yunus to inflict injuries with surgical blade upon him also for getting the crosscase registered against him and accordingly accused Yunus inflicted injuries with surgical blade on the head of the accused Pawan also. He duly identified the accused persons in the Court. In his cross examination by the accused persons, he denied the suggestion that accused persons did not inflict any injury as alleged.
8. PW2 is H. Ct. Satish who deposed that on 19.09.2007 he was posted as Head Constable at DAP 6th Battalion and on that day he was performing his duty at Kharja No.5, Judicial Lockup, Patiala House Courts alongwith Ct. Rajesh and State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 4 Ct. Kamlesh and on that day jail vans Lotus 11, Lotus 12 and Lotus 13 had come from Tihar Jail and undertrial prisoners were getting down from the vans and they were noting down their names, etc. He further deposed that accused Yunus and Pawan had come to the lockup in jail van Lotus 12 and the complainant/undertrial prisoner Vicky had come in jail van Lotus13. He further deposed that undertrial prisoner Vicky had to go to Kharja no.3 via in front of Kharja no.5 and accused Pawan and Yunus had to go to Kharja no.3 and when Vicky was passing through, accused Pawan caught hold him from behind and Yunus took out a surgical blade wrapped in handkerchief and inflicted injuries upon Vicky and he intervened into the matter to save Vicky and during that process he also received injuries on his middle left finger. During cross examination by both the accused, the PW2 stated that one surgical blade and iron rod about 4.5 inch in length was recovered from the possession of accused Yunus and was seized by the I.O. vide memo Ex.PW2/DA. He further stated that the said iron rod might have been cut by the accused persons from Jail jaali (net) in the Kharja. He denied the suggestion that the accused persons had not inflicted any injuries as alleged.
9. PW3 is Dr. Preeti Kharbanda who deposed that on 19.09.2007 she had examined one Vicky and H.Ct. Satish vide MLCs Ex.PW3/A and Ex.PW3/B respectively and the injuries of both of them were found to be simple sharp.
10. PW4 is ASI Alka Sharma who deposed that on 19.09.2007 she was posted at P.S. Tilak Marg and on that day she was Duty Officer from 9.00 a.m. to 5.00 p.m. and at about 11.40 a.m., she received rukka, sent by S.I. Jai Singh through State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 5 Ct. Dinesh and recorded FIR No.344/2007 which is Ex.PW4/A.
11. PW5 is Dr. Abhishek Mitra who deposed that on 08.10.2007 he was posted at RML Hospital as Sr. Resident in the Department of Surgery and on that day he had opined the nature of injuries on the MLCs of Vicky and H.Ct. Satish i.e. Ex.PW3/A and Ex.PW3/B as simple.
12. PW6 is Lab Technician Naresh Kumar who deposed that on 30.10.2007 he was posted as Lab Technician at Central Jail No.4 Hospital and on that day he took blood sample of Vicky and gave two bottles of blood samples having seal of CJ4 bearing the signature of SMO and a sample seal of Deputy Superintendent, CJ4 to police officials vide seizure memo Ex.PW6/A.
13. PW7 is Ct. Govardhan who deposed that on 21.09.2007 he was posted as Constable at 3rd Battalion, Vikas Puri and on that day he was on duty at Patiala House lockup and on that day he alongwith Ct. Ram Kishore took the accused Pawan and Yunus from lockup, Patiala House to Court No.15, Patiala House Courts and both the accused persons were formally arrested by I.O./S.I. Jai Singh vide arrest memos Ex.PW7/A and Ex.PW7/B.
14. PW8 is S.I. Jai Singh who deposed that on 19.09.2007 he was posted as Sub Inspector at P.S. Tilak Marg and on that day, on receipt of DD No.4A regarding quarrel at lockup, Patiala House Court, he alongwith Ct. Dinesh went to lock up, Patiala House Court where he came to know that injured H.Ct. Satish and Vicky were already taken to RML Hospital by the lockup staff. He further deposed that he also went to the hospital where he came to know that the MLCs State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 6 of the injured persons were already taken to the lockup, Patiala House Courts and he came back at Lockup, Patiala House Courts where H.Ct. Satish gave MLCs Ex.PW3A and Ex.PW3/B to him and he recorded the statement of injured Vicky which is Ex.PW1/A. He further deposed that he prepared rukka Ex.PW8/A and sent Ct. Dinesh to the police station for registration of FIR. He further deposed that after registration of FIR, he prepared site plan Ex.PW8/B and recorded statements of the witnesses. He further deposed that on 20.09.2007 he moved an application for production warrants against accused Yunus and Pawan and when they were produced in the Court, he formally arrested them vide arrest memos Ex.PW7/A and Ex.PW7/B. He further deposed that baniyan of injured Vicky was seized vide seizure memo Ex.PW8/C and on 30.10.2007 blood samples of injured Vicky were taken vide seizure memo Ex.PW6/A and sent to CFSL, Kolkota. He further deposed that the surgical blade and the iron rod were taken into possession vide seizure memo Ex.PW2/DA. He further deposed that on 04.03.2009 an application was moved before the Court to admit the CFSL report dated 29.02.2007 which is Ex.PW8/D. He duly identified the case property i.e. one iron rod and one surgical blade and one vest/baniyan Ex.P1, Ex.P2 and Ex.3. Despite opportunities given for crossexamination of this witness, the witness was not crossexamined.
15. PW9 is Ct. Kamlesh Kumar who deposed that on 20.09.2007 he was posted as Constable at DAP 3rd battalion, Vikas Puri Police Line and one that day he was on duty from 7.00 a.m. to 5.00 p.m. alongwith H.Ct. Satish Singh and Ct. Rajesh at Kharja no.5, Patiala House Courts and on that day at about 9.00 a.m. 13 jail State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 7 van reached from which accused persons were going towards Kharja no.5, Patiala House Courts and when undertrial prisoner Vicky was going towards Kharja no.3, accused Pawan caught hold him from backside and Yunus took out one surgical blade from his handkerchief and attacked by blade on the head, ear and right side of neck of Vicky due to which he sustained injuries on the said part of his body. He further deposed that he alongwith H.Ct. Satish and Ct. Rajesh got Vicky separated from accused Pawan and Yunus and during that process H.Ct. Satish also sustained simple injuries on the finger of his left hand by the blade. He further deposed that accused Pawan told accused Yunus to cut his body by the blade to make a crosscase. This witness also identified the case property i.e. one iron rod and one surgical blade tied with handkerchief correctly.
16. Ld. APP has argued that the prosecution has proved the case against the accused and he be punished U/Sec.324/34 IPC. But the counsel for the accused has argued that the accused Pawan is falsely implicated in this case who was actually trying to separate the complainant Vicky and the accused Yunus.
17. The accused has been booked in this case U/Sec.324/34 IPC. In order to prove offence U/Sec.324 IPC against accused, it must be proved that he had voluntarily caused hurt by means of any instrument of shooting, stabbing or cutting, or any instrument used as a weapon, etc. In the present case, as per the prosecution, the accused Pawan and the coaccused Yunus, in furtherance of their common intention, had inflicted injury on the person of Vicky with sharp State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg 8 edged weapon i.e. surgical blade. The PW1 i.e. complainant/injured Vicky has categorically deposed that the accused Pawan caught hold him from behind and asked coaccused Yunus to finish/kill him and in furtherance of the same Yunus took out a surgical blade, wrapped in a handkerchief, and inflicted injuries on right side of his neck and his head. This witness has been duly corroborated by the testimony of PW2 H.Ct. Satish and PW9 Ct. Kamlesh Kumar who are the eyewitnesses. Both these witnesses have also deposed that the accused Pawan had caught hold Vicky from behind and Yunus inflicted injuries on the head, ear and neck of Vicky with the surgical blade. The PW2 has further deposed that he had tried to separate the accused persons from the injured Vicky and during this process he also got injuries on his middle left finger. But despite their categorical disposition on these points, they were not cross examined on these points. Despite grant of opportunity the eyewitness PW9 was not crossexamined. Even during the crossexamination of other two eye witnesses i.e. PW1 and PW2, only a bald suggestion denying the infliction of injury was given. It is settled law that if the opposite party fails to crossexamine the witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in crossexamination, it must follow that evidence tendered on that issue ought to be accepted."
FIR No.344/07P.S. Tilak Marg 9 It is also held by Hon. High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Sec.137 & 138 of Evidence Act - Crossexamination
- If a witness is not crossexamined on a particular point, the opposite party must be deemed to have accepted truth of the statement."
Since the accused has failed to crossexamine the PW9, so in view of the abovesaid caselaws, his version is deemed to be admitted by him. Even the PW1 and PW2 were not crossexamined or given suggestion denying the incident despite their categorical and detailed narration of the incident. The accused himself has failed to lead any evidence in his defence. The testimony of the complainant, PW1 as well as of the other two eyewitnesses i.e. PW2 and PW9, is coherent, consistent, credible, truthful and trustworthy. All these witnesses have corroborated each other on all material points. There is nothing on record to disbelieve their testimony. Thus from the testimonies of material/eyewitnesses i.e. PW1, PW2 and PW9 it has stood proved that the accused Pawan had caught hold the injured Vicky from behind and asked the coaccused to kill him, who in furtherance of the same attacked the injured with surgical blade on his neck and head. The doctor i.e. PW3 has proved the nature of such injuries as 'simple sharp'. Hence it is held that the prosecution has proved its case beyond reasonable doubt and accordingly accused Pawan is convicted for the offence punishable U/Sec.324/34 IPC.
(Announced in open
Court on 19.05.2012) (Navita Kumari)
MM, New Delhi.
State Vs. Yunus & Anr.
FIR No.344/07
P.S. Tilak Marg
10
FIR No. 344/07
U/Sec. 324/34 IPC
P.S. Tilak Marg
19.05.2012
Present : APP for state.
Accused produced from J.C.
Legal aid counsel Sh. Piyush Aggarwal for accused. Vide separate judgment the accused is convicted for the offence punishable U/Sec.324/34 IPC. Copy of the judgment be given to the convict free of cost. Put up on 22.05.2012 for arguments on the point of sentence.
(Navita Kumari) MM/ND/19.05.12 State Vs. Yunus & Anr.
FIR No.344/07 P.S. Tilak Marg 11 FIR No. 344/07 U/Sec. 324/34 IPC P.S. Tilak Marg 22.05.2012 Present: APP for State. Convict Pawan is produced from J.C. Heard on the point of sentence.
Ld. APP has prayed for maximum punishment to the convict. The convict, on the other hand, has submitted that he has already undergone imprisonment for three years. So, in view of these facts and circumstances, the convict is sentenced to imprisonment for the period already undergone by him. File be consigned to Record Room. Copy of order be given to convict free of cost immediately.
(Navita Kumari) MM/ND/22.05.12 State Vs. Yunus & Anr.
FIR No.344/07P.S. Tilak Marg