Delhi District Court
State vs Mukesh Kumar on 12 September, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 490 of 2017
State Versus Mukesh Kumar
S/o Sh. Dinesh Shah
R/o B725/726, G.D. Colony
Mayur Vihar PhaseIII, Delhi.
FIR No. : 682/2014
Under Section : 308/341/506 IPC
Police Station : Gazipur
Chargesheet Filed On : 06.04.2017
Chargesheet received by this Court on: 04.08.2017
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 05.09.2018
Judgment Announced On : 12.09.2018
Coram : Sh. A.K. Mishra, Ld. Addl. P.P. for the State.
Sh. A.K. Tyagi, Advocate for the accused.
J U D G M E N T
1.The facts germain from the prosecution story are that FIR was registered on the complaint filed u/s 200 CrPC alongwith application 156(3) CrPC authored by the complainant Kamakhya Narayan Prasad. The FIR was initially registered u/s 323/341/506 IPC. During the course of investigation, after receiving the opinion regarding the nature of injury, Section 308 IPC was added. The complaint u/s 200 CrPC is clubbed SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 alongwith the challan filed before Ld. M.M. vide order dated 15.07.2017 for the offences punishable under Sections 308/341/506 IPC.
2. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 308 IPC was exclusively triable by it.
3. Vide order dated 04.12.2017, charge under Section 341/308/506 IPC was framed against the accused that on 23.04.2014 between 8.008.30 pm, near Sapera Basti, Weekly Market, Mayur Vihar, PhaseIII, Delhi, the accused Mukesh S/o Sh. Dinesh Shah wrongfully restrained Sh. Kamakhya Narayan Prasad and did an act to wit caused injuries to him with such intention or knowledge and under such circumstances, if by that act, accused had attempted to cause the death of injured and would have been guilty of culpable homicide not amounting to murder and caused hurt and accused criminally intimidated complainant with dire consequences if complainant raised any voice against his torture or to file any complaint, he confer the consequences thereof. The accused was charged for the offences punishable u/s 341/308/506 IPC. To the said charges, the accused pleaded not guilty and claimed trial.
4. The Prosecution in order to prove its case, examined only one material witness Sh. Kamakhya Narayan Prasad who has narrated the entire version as stated by him in the complaint filed u/s 200 CrPC corelate with his application u/s 156(3) CrPC as well as his statement given to the police on different occasions whereas he has given statement in toto that on 23.04.2014 in the evening time while selling the fruits in the aforesaid area, accused was also selling fruits on Rehri in the same vicinity. He was SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 alluring the customers by calling them to purchase his fruits. At about 8.30 pm, accused started abusing him and ran towards him having iron weight in his hand and hit the same on left side portion of his head which resultant to sustain injury on his head. After hitting him, accused fled away from the spot. The complainant made call by dialling at 100 number and police came at the spot and took injured Kamakhya Narayan Prasad to LBS hospital where he was treated. After getting medical treatment, he was discharged from the hospital on same day. On next day i.e. 24.04.2018 at about 10.00 am, he alongwith his family members went to police station to know the status of his case where with the intervention of police and entered into compromise with the accused. He has sent his written complaint to the superior police official but no action was taken on his complaint. Thereafter, he filed written complaint alongwith application u/s 156(3) CrPC with petition u/s 200 CrPC as Ex.PW1/A and Ex.PW1/B for calling status report. He was examined before the court of Ld. M.M. and on the direction of the court, FIR was registered. While examining in the trial, he has shown his two photographs Ex.P1 and P2 and has produced his blood stained clothes i.e. one blood stained handkerchief and blood stained wearing clothes at the time of incident vide Ex.P3. PW1 Kamakhya Narayan Prasad further stated that he had produced these clothes before Investigating officer but he refused to seize the same. He was cross examined at length and breadth though it has been denied that he has entered into a compromise with accused and in lieu of compromise, he had received Rs.50,000/ as compensation from the accused. He has denied that he has signed on compromise though, his signatures were obtained on blank papers. He has SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 denied that he had not given any written complaint to Police Station and that is why, police has not registered any case or that he had concocted a false story in order to trap the accused and extort the money from him again.
5. The injuries were proved by PW3 Dr. Sushil Kumar who had medically examined injured Kamakhya Narayan Prasad vide MLC Ex.PW3/A. He has not been cross examined at any point of time. The other witnesses are police officials. PW2 ASI Arun Kumar prepared the chargesheet and submitted before the court through SHO. PW4 ASI Krishan Pal has added Section 308 IPC. Thereafter, the case file was transferred to another Investigating officer by SHO and he handedover the case file to MHC(R). PW5 SI Kiran Pal is the investigating officer of the present case.
6. Statement of accused u/s 313 CrPC was recorded wherein he denied all the incriminating evidence against him with the submission that he and complainant were fruit sellers in the same vicinity and a quarrel took place with complainant on the issue of demanding money for consuming liquor by complainant to which he refused. Therefore, complainant was annoyed and threatened him to implicate in a false case and then, complainant after consuming liquor himself caused injuries on his head and went to the police station for registration of the case. The accused initially seeks to lead defence evidence however, he did not examine any witness in his defence. The accused also furnished the bond u/s 437A CrPC during the course of trial.
7. Having heard the rival submissions of Sh. A.K. Mishra, Ld. Addl. P.P. as well as Sh. A.K. Tyagi, ld. defence counsel and carefully gone SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 through the entire material on record and relevant case law.
8. Ld. Addl. P.P. submitted that the testimony of PW1 Kamakhya Narayan Prasad has been corroborated by the injuries as sustained by him. The defence taken by the accused does not substantiated by any oral or documentary evidence. The alleged defence taken by ld. defence counsel that the complainant/PW1 has taken Rs.50,000/ as compensation from the accused is denied and does not carry any substance.
9. Ld. defence counsel further argued that PW1 Kamakhya Narayan Prasad is stated to be injured/complainant but his statement is not corroborated by any independent public witness on the alleged date of incident however, contended that no such incident took place. The complainant might have sustained injuries by falling down on road as he has consumed liquor and also bearing grudge against the accused. As such, he has falsely implicated in this case.
10. Keeping in view the contention raised by ld. defence counsel, the testimony of PW1 Kamakhya Narayan Prasad have been corroborated with the MLC which has been proved by PW3 Dr. Sushil Kumar and the testimony of PW3 is unrebutted. So far as the defence taken by ld. defence counsel that the complainant/PW1 sustained injuries by fallen down on the road is concocted one and based on surmises. The plea taken by accused that complainant has compromised with the accused after taking Rs.50,000/. If any compromise had taken place with the complainant, then the story of fallen down on road does not have any base. Hence, both stories taken as defence by ld. defence counsel does not prove in any manner and same has no leg to stand in comparison to the story as taken by the SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 prosecution which has been more trustworthy and more corroborative one.
11. PW1 Kamakhya Narayan Prasad in his examination in chief have categorically stated that "..... At about 8.008.30 pm, accused Mukesh Kumar started abusing me and ran towards me having iron weight in his hand and hit the iron weight on left side portion of my head. Blood oozed out from my head profusely. My wearing clothes also stained in my blood. After hitting me, accused fled away from the spot. I made a 100 number call, police came at the spot.....". This version in cross examination has been denied by stating that "..... it is incorrect to suggest that accused used to sell better quality of fruits as such I feel jealous from him or that I myself had inflicted the injury on my head with iron weight due to said reason. I called the police after 8.30 pm. No compromise took place at PS. It is incorrect to suggest that the compromise had taken place between accused and me and in lieu of that compromise, I had taken Rs.50,000/ as compensation from the accused. I did not sign any compromise. I signed on blank paper at the behest of police in PS for registration of my case.....".
12. In State of Karnataka vs. Syed Fareed, 2002 Crl.J. 2857, 2858 para 4 (Kant) : AIR 2003 Kant HCR 122, it was observed that the evidence of the victim if corroborated by medical evidence and has withstood cross examination can be the basis of a conviction of the accused without any independent evidence. The testimony of the victim of attempt to murder was truthful and corroborated by medical evidence. It showed that he was alone at the place of occurrence and had opportunity to see the assailants. It was held that omissions or contradictions in his statement in examination after a lapse of time would not affect the veracity of the prosecution case.
SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10
13. In State of Karnataka Vs. Manikya, 2004 Crl.J. 1966 (Kant), it was observed that if the evidence of the complainant is truthful, if it inspires confidence and, if it is supported by the medical evidence, conviction is sustainable on this evidence alone. Corroboration from other oval evidence is certainly useful, it is very much desirable but, if it is not forthcoming, the prosecution case cannot suffer for this reason.
14. In the statement of accused u/s 313 CrPC, accused has taken the pleas that he wanted to bring defence evidence. He has given opportunity to produce defence witness, however, he failed on this account. In these circumstances, adverse inference can be drawn against the accused. On this account, emphasis taken different defence story which are not plausible nor carry any weightage. The reliance has been taken in Rumi Bora Dutta Vs. State of Assam, AIR 2013 SC 2422, it was observed that if the accused fails to explain the circumstances inculpating him in his examination u/s 313 CrPC, 1973, it may amount to missing link in the chain of circumstances. A false answer offered by accused when his attention is drawn to the circumstances, renders the circumstances capable of inculpating nature. In such a situation a false answer can also be counted as providing "a missing link" for completing the chain of circumstances.
15. It is a matter of record that during the course of investigation, iron weight has not been taken into possession though, it could be easily available and seized. Apart from that, PW1 Kamakhya Narayan Prasad also stated that he has produced the blood stained clothes and handedover to the Investigating officer but he had not taken into custody though he himself produce the same in the court. Same are also one of the corroborative link SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 evidence though, it was not sent to FSL nor seized during the investigation. As such, no adverse inference can be drawn against the prosecution. In Ram Singh Vs. State of Rajasthan, (2012) 12 SCC 339 in para 9, it was held that non production of the weapon used in the attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score.
16. It is a matter of record that the case initially was registered u/s 323/341/506 IPC and on receipt of MLC, section 308 IPC was added lateron. The concerned doctor has given nature of injuries as "simple" one. As per MLC, the injured suffered injuries i.e. lacerated wound + right and left side frontal region of scalp with 5 cm x 0.5 cm with fresh clots of blood.
17. The provisions contained under Section 308 IPC postulates doing an act with such intention or knowledge and under such circumstances that if by that act caused death, he would be guilty of culpable homicide which is punishable u/s 308 IPC whereas punishment for simple hurt can be meted out u/s 323 and 324 and for grievous hurt u/s 325 and 326. Qualitatively these offences are different. This view has been taken in the judgment Sunil Kumar Vs. NCT (Delhi), (1998) 8 SCC 557.
18. a) Essential Ingredients : An offence under this Section has following essential ingredients.
i) That an act was committed by the accused;
ii) that the said act was done with the intention or knowledge that he shall be guilty of culpable homicide not amounting to murder;
iii) the culpable homicide does not amount to murder :
a) if the act is done with the intention or knowledge referred to in Section 300 IPC but under circumstances which would bring the case within one of the exceptions mentioned in that Section SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 or
b) if the act is done with the intention or knowledge referred to in Section 299 but not falling under clauses (2), (3) and (4) of Section 300 IPC.
(b) Evidence to prove an offence u/s 308 IPC, the prosecution is to prove the following :
a) that the accused did some act towards the victim,
b) the act was done with such intention or knowledge and under such circumstance that had it caused death, the accused would have been guilty of culpable homicide not amounting into murder.
19. As per deposition made by PW1 Kamakhya Narayan Prasad, he had stated that accused Mukesh Kumar started abusing him and ran towards him having iron weight in his hand and hit the iron weight on left side portion of his head. He has nowhere stated that accused has intention to cause death at any point of time or that accused hit iron weight not only once but on several times with the intention or knowledge that the death would be caused to him. Even from the medical evidence, nowhere stated that injuries sustained by him resulted to his death in any manner. Only one simple injury was caused to him though, it was on frontal scalp but not depth of it as per MLC.
20. In view of the aforesaid discussion and judgment as cited since the nature of injury is "simple" and his clothes were stained with blood. However, iron weight was not recovered nor any expert opinion on DNA profile received. In these circumstance, the deposition made by PW1 Kamakhya Narayan Prasad, same has been corroborated by the testimony of PW3 Dr. Sushil Kumar who proved MLC Ex.PW3/A. Thus, for lacking the SC No. 490/17 State Vs. Mukesh Kumar Etc. Page No.: 10 of 10 ingredients of section 308 IPC, the charge u/s 308 IPC could not be proved beyond all reasonable doubt.
21. Perusal of record also reveal that nothing has come on record to show that complainant/victim was ever wrongfully restrained before causing injuries to him. Record also reveals that complainant/victim never stated to the effect that he was ever threatened by the accused either before or at the time or after the incident. Besides the above, threat should be in such a way that it may harm to victim. With these observations, court is of the view that prosecution has miserably failed to prove the case on these aspects and hence, accused is entitled for acquittal for these charges. Thus, the accused is acquitted for the offences u/s 341 & 506 IPC.
22. At the most, the offence has been covered within the scope of the definition under section 324 IPC. Accordingly, accused Mukesh Kumar S/o Dinesh Shah is held guilty and convicted for the offences punishable under Section 324 IPC.
Digitally signed SATINDER by SATINDER
KUMAR
KUMAR
Announced in the open Court
GAUTAM
th GAUTAM Date: 2018.09.12
Dated : 12 September, 2018 17:08:38 +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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