Delhi District Court
S.C. No.86/10 Fir No.942/06 State vs . Omi Singh @ Omi & Anr. 1/27 on 6 February, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No: 86/10
FIR No: 942/06
P.S : Sangam Vihar
U/S: 323/308/34 IPC
STATE
Vs.
(1) Omi Singh @ Omi
S/o Sh. Makhan Singh
R/o V.P.O & P.S. Rajakhera,
Distt. Dhaulpur (Rajasthan)
Presently R/o H. No. 55, Block K-II,
Sangam Vihar, New Delhi.
(2) Akhilesh Kumar
S/o Late Sh. Sewa Lal Dixit
R/o H. No. 266, Gali No.2,
Block F-3, Sangam Vihar,
New Delhi.
Date of initial Institution : 08.03.2007
Date of Institution in this Court : 05.10.2010
Date of reserving order : 25.01.2012
Date of Pronouncement : 06.02.2012
S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 1/27
JUDGMENT
1. The case of the prosecution is that on receipt of DD No. 18A on 24.09.2006 ASI Babu Ram and Ct. Rajkumar reached House No. 264, Gali No. 2, Block F-3, Sangam Vihar where they came to know that the injured persons had been shifted to AIIMS Hospital by the PCR Van. Then they went to AIIMS hospital and found injured Vimal hospitalized with stab injury. His statement was recorded wherein he stated that he had to inaugurate his shop on 25.9.2006 and for consultation for this purpose he had gone at 2 pm on 24.9.2006 to the house of his friend Shravan at aforesaid address. At around 3.15 pm he heard some noise of quarrel outside the house and on going out he found Akhilesh, neighbour of Shrawan who had a danda in his hand and his son Amit (juvenile) who had a half brick in his hand, S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 2/27 were quarreling with the wife of Shrawan. Another person Omi Singh was standing there with a sharp iron summi. Amit hit the half brick on the head of Shrawan's wife. When he tried to intervene, Omi Singh gave a stab blow in his stomach. He overpowered Omi Singh but the latter managed to escape. Somebody had dialed 100 number and police came and shifted him to AIIMS hospital. Pintoo and Shakuntala were also lying admitted in AIIMS hospital. A case u/s 323/308/341 IPC was thus registered. All the three accused persons were arrested but since Amit was found to be juvenile, he was sent to JJB.
2. After completion of the investigation proceedings, the charge-sheet was filed in the court u/s 323/308/34 IPC.
3. On 6.3.2009, charge was framed under Section 307/308/323/34 IPC against both the accused persons to which they pleaded not guilty and claimed trial. S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 3/27
4. In order to prove its case, prosecution examined nine witnesses. PW-1 Dr. Kritya deposed about examining injured Vimal who had a stab injury in abdomen. He received grievous injury. His MLC was proved as Ex PW-1/A. She also proved MLCs of injured Pintoo and Shakuntala as Ex. PW-1/B and PW-1/C respectively but for want of X-ray reports, she could not give any opinion about the nature of injuries sustained by these two injured persons. No questions were asked in cross examination.
5. PW-2 Ct. Raj Kumar deposed about going to the spot with ASI Babu Ram and about going to AIIMS Hospital. He further deposed regarding recording of statement of injured by IO and of getting the FIR registered on his instructions. Arrest of Akhilesh Kumar was proved by him as Ex. PW2/A and his personal search as Ex. PW-2/B, disclosure statement as Ex. PW-2/C. He also proved recovery of danda from the S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 4/27 roof top of his house as Ex. PW-2/D and stated about sealing of Danda with seal of BR. He identified the Danda as Ex. P-1 and the accused. No questions were put to him during his cross examination.
6. PW-3 Ct. Kehar Singh deposed that he joined investigation on 27.9.2006. He proved arrest of accused Omi Singh as Ex. PW-3/A, his search memo as Ex. PW-3/B, his disclosure statement as Ex. PW-3/C. Pursuant to his disclosure, recovery of sharp iron object (summi) from a pit filled with water as Ex. PW-3/D and stated about sealing of this summi with seal of BR. He identified the summi as Ex. P-2. In his cross examination by accused Omi Singh, he stated that the recovery of Ex. P-2 was affected after half an hour of his arrest from a place which was more than 2 kms. away.
7. PW-4 Pintu deposed that on 24.9.06 he had visited his sister Shakuntala's home and on that day at about 3/3.15 pm, when he was sitting inside the room, he heard S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 5/27 noise of quarrel. When he went outside, he saw Omi Singh, Akhilesh and Amit quarrelling with his sister Shakuntala and Vimal Sharma. When he tried to intervene somebody hit him by a danda from his back side and he became unconscious. On regaining consciousness, he found blood oozing from his head. His sister sustained injury on his head and Vimal Sharma sustained injury on his stomach due to iron summi. He identified the accused persons in Court. When this witness was cross examined by the Addl. PP he stated that when Vimal Sharma was trying to save Shakuntala, he was given summi blow by accused Omi Singh on his stomach. In his cross examination by accused Omi Singh, he stated that there was no previous enmity between the accused persons and his sister. He turned down the suggestion that he sustained injuries due to fall.
8. PW-5 Shakuntala in her deposition stated that on 24.9.2006 at about 2.30 pm her 8 year old son Shivam S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 6/27 was playing outside and some bricks fell down from him in the street. Amit then started abusing him and when she came out, he also abused her and hit her on head with a brick. Akhilesh also came there and hit a danda on her head. When her brother Pintu and Vimal Sharma came out, Omi Singh also came there with an iron summi and hit that on the stomach of Vimal Sharma and Pintu also sustained injury on his head in this quarrel. She identified the accused persons in Court. In her cross examination on behalf of accused Omi Singh, she stated that there was no previous enmity between her and the accused persons. She denied the suggestion to have suffered injury on her head due to a fall on brick. She also denied the suggestion that Pintu had beaten Sunita, wife of Akhilesh.
9. PW-6 HC Hari Singh was Duty Officer on 24.9.2006 and proved recording of FIR No. 942/06 as Ex. PW-6/A. S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 7/27
10. PW-7 Sarwan deposed that on 24.9.2006 at about 2/3.00 pm he was present inside his house with his friend Vimal Sharma and were talking about inauguration of his shop on 25.9.2006. Sarwan then heard voice of his wife and son Shivam from gali. After hearing noise, he went out and saw accused Akhilesh had danda, his son Amit had half brick and Omi Singh had a summi. Akhilesh gave danda blow on the head of his wife, Amit gave brick blow on her head and Omi Singh gave summi blow on the stomach of his friend Vimal Sharma and when his saala Pintu tried to intervene, he also sustained injury on his shoulder. He informed police which came and took his wife Shakuntala and Vimal to hospital. He identified both the accused persons in Court. In his cross examination he stated that there were about 20-25 persons who had gathered around. He also stated that since he was wearing only a towel and was afraid due to the accused persons, he did not intervene. He further stated that police had inquired from him in the AIIMS S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 8/27 but thereafter, his no statement was recorded. He denied the suggestion that his wife sustained injury due to fall on a brick. He also denied the suggestion that he deposed due to previous enmity.
11. PW-8 Vimal Sharma deposed that 4-5 years ago he had gone to the house of Sarwan at Sangam Vihar for making the payment to some party. On that day, at about 12/12.30 pm some quarrel was taking place between the accused persons and the wife and son of the Sarwan. He further stated that somebody caused him injury whereafter he became unconscious. Police took him to hospital but did not record his statement. As he was resiling from his earlier statement, he was cross examined by the Addl. PP when he stated that police might have recorded his statement on 24.9.2006. He agreed that he had stated in his statement that on 24.9.2006 at about 2 pm he had gone to the house of Sarwan. He also agreed that he had stated in his S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 9/27 statement that at about 3.15 pm he heard noise of quarrel coming from outside the house. However, he denied to have made a statement to the effect that Akhilesh was having a danda in his hand and Amit had a half brick in his hand and they were quarrelling and abusing with the wife of Sarwan. He also denied to have stated that Omi Singh was also standing there with an iron summi or that Amit had given brick blow on the head of wife of Sarwan or when he was trying to intervene, Omi Singh gave iron summi blow on his stomach. He further stated that police had taken his thumb impression on his statement, when he was lying unconscious in the hospital. He denied the suggestion that he was deposing falsely because of being won over by the accused persons or due to his compromise with the accused persons. In his cross examination by the accused persons, he stated that he had not seen the accused persons on the date of the incident.
S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 10/27
12. PW-9 SI Babu Ram proved DD No. 18 A as Ex. PW-9/A regarding quarrel at F-3/264, Sangam Vihar and DD No. 19 A regarding quarrel at F-2/266, Sangam Vihar as Ex. PW-9/B. He and Ct. Rajkumar then went to AIIMS hospital where Vimal Sharma was found admitted with a stab injury. Pintoo and Shakuntala were also found admitted there.
13. All incriminating evidence was put to the accused persons in their examination under Section 313 Cr.P.C. Both the Accused Omi Singh and Akhilesh stated that on 24.9.2006 they were not present at the spot. Akhilesh said that he was in his office, Omi Singh simply said that he was not present at the spot. They both denied the recovery of iron summi and danda. The reason of this case was given by them to be the quarrelsome nature of the complainant.
S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 11/27
14. The accused persons then led Defence Evidence. DW-1 Jagdish Prasad and DW-2 Girwar Singh were examined.
15. DW-1 Jagdish Prasad stated that one day he saw a fight between namkeenwala and his wife on street. He came down to the street and after some time police came and disbursed the crowd. The accused persons were not there. In his cross examination, he stated that he does not remember the date, month and year of the said incident.
16. DW-2 Girwar Singh stated that he lives on the back side of accused Akhilesh. On 24.9.2006, at about 2
- 2.30 pm, he had gone to a shop in his street and saw a quarrel between Pintu, Vimal, Shakuntala and two unknown persons. He further stated that police came to the spot and disbursed them. In his cross examination, he denied the suggestion that the accused persons were involved in the said quarrel. He further stated that he S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 12/27 returned back to his house within 5 minutes i.e. by 2.35 pm. He further denied the suggestion that about 3.15 pm that accused had caused injury by iron summi to Vimal Sharma. He admitted that he knows both the accused persons as they were his neighbours.
17. Sh. S.D.S. Rathore, Ld. Counsel for the accused persons has argued that the accused persons have been falsely implicated. It has been stated that the accused persons were charged u/s 307/308/323/34 IPC on 6.3.2009 and the said Charges are hit by Section 218 Cr PC which mandates that the charges should be under different heads. Ld. Counsel has stated that since charges under different heads have not been framed against the accused persons, Section 218 Cr PC, which is mandatory in nature, has been violated. It has been further argued that the Complainant Vimal Sharma, who was examined as PW-8 by the prosecution, turned hostile and he did not support the prosecution case. According S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 13/27 to MLC, Vimal Sharma had sustained grievous injury but since he did not support the prosecution case, the entire prosecution story falls flat. He stated that he does not know who caused him injury. Further, it has been argued that danda was allegedly recovered from an open place (roof top). Iron summi was also allegedly recovered from an open space (pit). No public witness was involved in this recovery. There were no blood marks on summi. It has been stated that when the danda in question was produced in Court, the seal of the said danda was broken. These factors taken cumulatively make both the recoveries doubtful. PW-5 Shakuntala stated that at the time of incident her husband Sarwan was not present in house. However, Sarwan deposed as PW-7 and stated that he is an eye witness but he did not intervene. It has been argued that Sarwan had not intervened because he was not present at the spot and has been introduced subsequently by the police and hence, he is not a trustworthy witness. Ld. Counsel, thus argued S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 14/27 that there are no independent witnesses to the incident and all the witnesses are either family members or official witnesses. Ld. Counsel has thus prayed for acquittal of the accused persons giving them benefit of doubt.
18. Ld. Addl. PP, on the other hand, has stated that the complainant did support the prosecution case to a great extent and he admitted to have gone to the house of Sarwan and to have suffered injuries in his stomach. He also supported hearing of noise of quarrel. He only did not depose about the person who caused him iron summi injury. All the other witnesses namely PW-4 Pintu, PW-5 Shakuntala and PW-7 Sarwan supported the prosecution case. Regarding producing the danda with broken seal, Ld. Addl. PP argued that when PW-2 Ct. Raj Kumar was examined, the said danda was produced duly sealed with the seal of 'BR'. Vimal Kumar, Shakuntala and Pintoo all of them had sustained injuries S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 15/27 in the assault. As such, the Ld. Addl. PP has argued for conviction of the accused persons.
19. I have heard both the Ld. Counsels and have carefully perused the records.
20. The first argument raised by the Ld. Defence counsel is about defect in framing charge in as much as Section 218 Cr PC has not been complied with. Section 218 Cr. PC inter alia provides that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Ld. Counsel has stated that the accused persons were charged u/s 307/308/323/34 IPC which is contrary to the spirit and mandate of Section 218 Cr PC. Section 464 Cr PC however provides that no order of a court shall be invalid on the ground that no charge was framed or due to error, omission or irregularity or any misjoinder of charges has taken place in the charge unless there was failure of justice. The test is whether the S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 16/27 accused persons were prejudiced. In State vs. Thakkidiram 1998 Cr LJ 4305, the Hon'ble Supreme Court held that a failure in framing charge is not fatal if no failure of justice is occasioned because of such error. The Charge clearly spelt that the accused persons with Amit (juvenile) while armed with a sharp edged weapon (summi), danda and brick caused grievous/simple injuries to Vimal Sharma, Shakuntala and Pintoo in an attempt to commit culpable homicide amounting to murder/not amounting to murder and thereby committed offences punishable u/s 307/308/323/34 IPC. The idea of framing charge is to put the accused person to reasonable notice so as to enable him to effectively defend from the said charge. Ld. Counsel has not been able to point out that the accused persons were prevented from effectively defending themselves or that they were in any manner mislead due to framing of charge. As such, no fault can be found in the charge on this count. S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 17/27
21. Another objection raised by the Ld. Counsel was that the danda produced before the Court was in unsealed condition. However, it is contrary to record. When PW-2 Ct. Raj Kumar was being examined, the said danda was produced in sealed condition.
22. Ld. Counsel has stated that the complainant resiled from his statement and hence the prosecution has not been able to prove its case to the hilt. This shall be dealt with in subsequent part of this judgment.
23. The accused persons were charged under Section 307/308/323/34 IPC. Section 307 IPC deals with attempt to commit murder while Section 308 IPC deals with an attempt to commit culpable homicide not amounting to murder. Section 323 IPC deals with the offence of voluntarily causing hurt.
Section 307 IPC reads as under:
S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 18/27
307. Attempt to murder: "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
Section 308 IPC reads as under:
"308. Attempt to commit culpable homicide - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder ...
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24. Both these Sections demand the presence of a particular intention or knowledge that if by that act death was caused he would be guilty of either murder or culpable homicide not amounting to murder. The difference is between the degree of intention or knowledge.
25. In order to bring the case within the ambit of section 307 IPC, it must be shown that the accused had done the act with such an intention or knowledge or under such circumstances that if by that act, he causes death, he would be guilty of murder. Therefore, the intention or the knowledge to commit murder must exist. So, the mens rea and actus rea both are required to be proved in a case under Section 307 IPC. In other words, the accused must harbour an intention to kill or he must have a knowledge that the act which he intends to commit or which he commits, is so eminently dangerous that it must in all probabilities cause death or such bodily S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 20/27 injuries as is likely to cause death. To justify conviction under section 307 IPC, it is not necessary that there should be a bodily injury which is capable of causing death, although, the nature of injury may help the court to come to a conclusion as to the intention of the accused. The requirement of law would be fulfilled if there is requisite intent or knowledge coupled with some overt act in the execution thereof. Therefore, the evidence on the record is to be scrutinized in view of this position of law.
26. The nature of injury, of course, is relevant to determine the nature of the offence but it cannot be said that in the absence of the opinion that the injuries were sufficient to cause death, Section 307 IPC cannot be invoked. In the case of Girja Shankar vs. State of U.P AIR 2004 SC 1808, it was observed that it is not necessary that injury actually caused to the victim of the assault, should be sufficient under ordinary circumstance S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 21/27 to cause death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section.
27. In order to attribute Section 308 IPC, the prosecution is required to prove that there was an intention or knowledge and the alleged act must have been done under such circumstances, that, if death is caused, the accused would be guilty of culpable homicide not amounting to murder. If we go through Sec. 308 IPC, it is not necessary that the act of a person must have caused injuries to the victim. Even if injuries have not been caused, Sec. 308 IPC is attracted, if such an act is done with the intention or knowledge that if by that act, a person dies, he would be guilty of culpable homicide not amounting to murder. The question thus is that what was the intention or knowledge of the offender when the said act was done by him.
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28. The factor thus which is to be taken into consideration is as to what was the intention or the knowledge of the accused persons at the relevant time. None of the witness has deposed that the accused persons had any intention to kill or had the knowledge that the act which he intends to commit or which he commits, is so eminently dangerous that it must in all probabilities cause death or such bodily injuries as is likely to cause death. Such intention or knowledge is a sine qua non for sustaining a charge u/s 307 or 308 IPC. There is also no medical opinion that the injuries sustained by Shakuntala, Vimal Sharma and Pintu were sufficient in ordinary course of nature to cause death. There is also no evidence regarding any previous enmity between the accused and the injured persons. The witnesses have not deposed that the accused persons had given them repeated blows. Although the frequency of assaults is not the only criteria to decide a case for S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 23/27 section 307 or 308 IPC but it is an important circumstance to be taken into consideration. PW-4 Pintu, PW-5 Shakuntala and PW-7 Sarwan all of them stated that accused Omi Singh hit iron summi in the stomach of the injured Vimal Sharma. Although, the injured Vimal Sharma has not deposed to this effect that he was injured by Omi Singh in his deposition but he did say about his presence at the spot. His injury in stomach was found in the MLC which was duly proved on record. It was on his statement that he was injured by Omi Singh by a summi blow that the FIR was registered. Thus, his deposition in court regarding not knowing as to who caused injury to him does not inspire confidence. It is the duty of the Court to separate chaff from grain. In the absence of the required intention or knowledge, it cannot be stated that the accused had knowledge or intent to cause death of the injured persons. PW-1 Dr. Kritya, Jr. Resident, AIIMS proved the MLC of injured Vimal, that he had suffered stab injury in abdomen area which was S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 24/27 grievous in nature. Shakuntala had suffered injury on her right parietal region and right hand. Pintu had suffered injury on his left parietal region. The nature of injuries sustained by Shakuntala and Pintu however could not be opined by her for want of X-ray report. Accused Akhilesh was arrested on 24.09.2006 and he got recovered the danda from the roof of his house on 24.09.2006 itself. The danda was 3 feet 2 inches in length, the recovery of the danda was proved by PW-2 Ct. Raj Kumar as Ex.P-1. The danda was identified by the victim Shakuntala. Accused Omi Singh was arrested on 27.09.2006. He got recovered the iron summi from a water filled vacant plot situated between Bal Vikas Vidayala and House No.933, G-Block, Sangam Vihar, by entering inside the water and producing a mud stained iron summi from it on 27.09.2006, and the recovery of the same was proved by PW-3 Ct. Kehar Singh as Ex.P-2. The summi was 24.5 c.m in length and was 1 c.m thick. The accused persons have taken a defence S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 25/27 that they were not present at the spot. However, no positive evidence has been brought on record to substantiate this averment. The deposition of defence witness, namely, Jagdish Prashad is of no consequence as he is unable to point out as to when the incident in question took place. The deposition of other defence witness, namely, Girwar Singh does not inspire confidence that on 24.09.2006, Pintu, Shakuntala and Vimal Kumar were quarrelling with two unknown persons, in view of the recovery of danda and summi at the instance of the accused persons. This in itself belies the statement of Girwar Singh. All these circumstances taken together show that there was no requisite intention or knowledge on the part of the accused persons to kill the injured persons and hence Section 307 or Section 308 IPC are not made out. However, keeping in view the nature of injuries sustained by the injured persons, Pintoo, Shakuntala and Vimal Sharma, both the accused S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 26/27 persons are convicted under Section 323 IPC. Announced in the open court. ( Rajeev Bansal ) Dated:06.02.2012 ASJ-3/South District Saket Courts, New Delhi S.C. No.86/10 FIR No.942/06 State Vs. Omi Singh @ Omi & Anr. 27/27