Delhi District Court
State vs Satbir S/O Daya Ram on 7 May, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE-05
(NE): KARKARDOOMA COURTS: DELHI.
SC No.13/10
Date of institution: 12.12.2006
Received on transfer-19.2.2010
Reserved for order:30.4.2010
Date of delivery of order: 05.05.2010
State vs Satbir s/o Daya Ram
R/o K-75, Gali No.4, Kanhiya Nagar,
Johir Pur, Delhi.
FIR NO.308/06
PS Gokal Puri
U/s 308 IPC
JUDGMENT:-
1. In a nut shell, the prosecution case is based on the complaint of the complainant Shiv Kumar dated 02.5.2006, wherein he has alleged that at about 8.30 p.m., he was standing in front of grocery shop, accused Satbir and his son Gunni Ram and other boys were talking to each other on a high pitch out of which accused Satbir was abusing the colony people. When he asked him as to why he was abusing the colony people, Satbir went inside his house and got the handle of the hand pump and said "AAJ SAALE TERA KAAM TAMAM KAR DETA HOON". He gave him a blow with the handle of the hand pump, as a result of which, he got injuries and also fell down. When he fell down on the ground, accused gave him many leg blows. Somebody rang up on number 100. Police came to the spot and removed him to GTB Hospital and he wanted legal action against the accused. On the basis of complaint, a case u/s 308 IPC was registered against the accused.
2. Necessary copies were supplied to the accused persons in compliance of section 207 Cr PC and on finding a prima facie case, charge u/s 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. To support its case prosecution has examined five witnesses.
PW-1 is Shiv Kumar, the complainant who proved his statement recorded by the police as Ex.PW1/A. The handle of hand pump has been proved as FIR no.308/2006 PS Gokal Puri 1/7 Ex.P1. The baniyan, shirt and angochha which he was wearing at the time of incident have been proved as Ex.P2, Ex.P3 and Ex.P4.
PW-2 is H.C. Ishwar Singh who recorded the FIR. Copy of the FIR has been proved as Ex.PW2/A and endorsement made over the ruqqa as Ex.PW2/B. PW-3 is Const. Sunil Kumar who accompanied IO SI Ajay Kumar on receipt of DD No.34 A. In his presence, IO recorded statement of Shiv Kumar and made his endorsement and he took ruqqa and got the case registered. After registration of the case he came back to the spot and handed over original ruqqa and copy of FIR to IO. IO conducted the entire proceedings of the case in his presence.
PW-4 is Dr. Parmeshwar, CMO GTB Hospital, who proved the MLC of Shiv Kumar, the complainant, prepared by Dr. Mohit on 2.5.2006 as Ex.PW4/A. PW-5 is IO SI Ajay Kumar who stated that on 2.5.2006, on receipt of DD No.34A Ex.PW5/A, the investigation of the case was assigned to him. He alongwith Const. Sunil Kumar reached at the spot from where the injured had already been removed to GTB Hospital by PCR van. He collected MLC of Shiv Kumar and recorded his statement vide Ex.PW1/A. He recorded ruqqa Ex.PW5/B and gave it to Const. Sunil Kumar for registration of the case. No eye witness met him at the spot. When complainant and Const. Sunil Kumar alongwith the copy of FIR and ruqqa reached the spot, he prepared site plan at the instance of complainant vide Ex.PW5/C. He arrested accused Satbir who was present in the gali at the instance of complainant vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B. The accused handed over the handle of hand pump after taking it out from his house and he seized the same vide seizure memo Ex.PW3/C. He seized the blood stained clothes i.e. kameez, baniyan and angochha of the complainant vide Ex.PW3/D. He got the accused medically examined and recorded statement of Const. Sunil Kumar, collected result on MLC of Shiv Kumar, concluded investigation and got the accused challaned. He has proved handle of hand pump as Ex.P1, baniyan Ex.P2, shirt Ex.P3 and angochha Ex.P4.
FIR no.308/2006 PS Gokal Puri 2/7
4. Statement of accused was recorded u/s 313 Cr PC in which he denied the prosecution case and pleaded innocence.
5. In support of his case accused examined two defence witnesses. DW1 is Vijendri, wife of the accused who stated that on the date of incident her husband was not in the house. The accused persons alongwith others used to play gambling in front of her house and on her refusal these persons starting having enmity with her family members and particularly against her husband. On 2.5.2006, the complainant alongwith others started beating her children. She called the police on 100 number. Police came to the spot and in the meantime her husband also arrived and was taken by police to P.S. Again stated that first police took her son to the P.S. and after that her husband was also taken. Only her husband was arrested by the police. She also stated that on 4.5.2006, the complainant alongwith other persons gave her beatings and torn her clothes and she filed a complaint against the complainant and other persons in the court U/s 452/354/323/506/34 IPC.
6. DW-2 is Satpal. He is a neighbour of the accused. He also corroborated DW1 saying that Hassan Lal, Daulat Ram father of Shiv Kumar injured, Inderjeet and others used to play gambling in the street. On being asked by the family members of the accused and other people not to play gambling, they did not stop. On 2.5.2006, aforesaid persons came to the house of accused and started beating the family members in the absence of accused. Someone called the police on 100 number. Police came to the spot and took the son of the accused to P.S. When the accused went to P.S. to take his son, he was involved in the present case by the police. Accused did not give any injury to the complainant as alleged. On 4.5.2006, the aforesaid persons started beating wife of the accused by entering in her house regarding which a complaint was filed in the Mahila Court which is mark X.
7. I have heard Ld. Addl Public Prosecutor for the State and counsel for the accused Devi Sahai and perused the entire oral and documentary evidence placed on record.
8. The main prosecution witness is Shiv Kumar, who has stated that about two years back, he did not remember the day or month, but it was Tuesday at FIR no.308/2006 PS Gokal Puri 3/7 about 6/7 p.m., he was going to grocery shop for taking articles. On the way, accused Satbir and his son Gunniram and some other boys were abusing galiwalas. He told Satbir not to abuse. Accused Satbir picked up handle of hand pump from near the door of his house and attacked on his head with the handle of hand pump. He sustained injury and became unconscious. Someone informed the police on 100 number. Police reached there and removed him to hospital. In the hospital local police came there and recorded his statement which is Ex.PW1/A bearing his thumb impression at point A. His wearing clothes were also seized by the police. He identified the handle of hand pump with which accused caused injury to him as Ex.P1. The clothes which he was wearing at the time of incident i.e. Baniyan, shirt and Angochha are Ex.P2 to P4. In his cross examination, his credibility could not be shaken.
9. Counsel for the accused has stated that accused deserves to be acquitted as the statement of PW1 has gone uncorroborated. That no independent witness was examined, though as per the statement of PW1, 30 to 35 persons were present. He has also contented that doctor has not proved as to what type of injury was sustained by the injured and in absence of any corroborative evidence on record it can be said that the prosecution has failed to prove its case beyond reasonable doubt. However, I do not find any substance in the contention of the counsel for the accused as the conviction can be based on the testimony of a single witness also if found credible. In the cross examination of PW1, there is no suggestion that the accused Satbir did not attack PW1 Shiv Kumar with handle of hand pump. In absence of any such suggestion, the testimony of PW1 goes uncontroverted, unchallenged and unrebutted. So far as the defence witnesses are concerned, their statements do not inspire much confidence. DW1 Vijendri has stated that she did not know how Shiv Kumar sustained injury on the day of incident i.e. 2.5.2006. Only because the family of the accused has filed a case against the complainant subsequently, it cannot be said that the offence u/s 308 IPC was not committed by the accused on 2.5.2006.
10. In so far as the contention of counsel for the accused that the offence u/s 308 IPC is not made out as the nature of injuries have not been proved, the same is not acceptable as an attempt of that nature may actually result in hurt or may not, it is the attempt to commit culpable homicide which is punishable u/s FIR no.308/2006 PS Gokal Puri 4/7 308 IPC whereas punishment for simple hurt can be meted out under sections 323 and 324 and or grievous hurt under sections 325 and 326. Whether the injury inflicted was grievous or simple deserves a back seat in the face of the charge u/s 308 IPC. As regards his contention that the testimony of PW1, the injured, is not corroborated by any independent witness, PW-1 unequivocally stated that on the quarrel being ensued, the accused hit him with the handle of hand pump. His testimony which is otherwise cogent and convincing cannot be rejected mechanically on the ground that it is not corroborated by any independent witness. As regards, the minor contradictions, the court has to examine the broader probabilities of the case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the victim inspires confidence it must be relied upon without seeking corroboration of his statement in material particulars. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
11. On the basis of the evidence brought out on record, I hold that the prosecution has proved beyond reasonable doubt (1) that the death of injured Shiv Kumar was attempted; (2) that such act was of the accused; and (3) that the act was done with intention or knowledge and under the circumstances that if it had caused death, the act would have amounted to culpable homicide not amounting to murder. I accordingly hold that there is sufficient and cogent evidence on record to convict the accused u/s 308 IPC. Accused is accordingly convicted for the offence punishable u/s 308 IPC.
Announced in open court (Nisha Saxena)
Date: 05.05.2010 Addl. Sessions Judge-05(NE):
Karkardooma Courts: Delhi.
FIR no.308/2006 PS Gokal Puri 5/7
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE-05 (NE): KARKARDOOMA COURTS: DELHI.
SC No.13/10State vs Satbir s/o Daya Ram
R/o K-75, Gali No.4, Kanhiya Nagar,
Johri Pur, Delhi.
FIR NO.308/06
PS Gokal Puri
U/s 308 IPC
ORDER ON SENTENCE:-
1. I have heard Ld. Addl P.P. for the State and Sh. Devi Sahai on the point of sentence.
2. Counsel for the accused has requested for taking a lenient view on the ground that convict has suffered the ordeal of long trial since year 2006; that he has been regular in the court and never misused the liberty of bail. It has also been contended that the convict is a labourer and is the sole earning member of his family consisting of himself, his wife and five children out of which two daughters are married, two daughters are unmarried who are aged about 19 years and 14 years respectively. That son of convict is aged about 18 years and he is studying. It has further submitted that the convict has not been previously convicted and has been a peaceful citizen of the country and is ready to abide by any condition which may be imposed by this court and that this is his first offence and he has no previous criminal antecedents of any nature whatsoever.
3. I have given my anxious consideration to the contentions of the State and counsel for convict.
4. Considering the facts and circumstances of the case, I am of the FIR no.308/2006 PS Gokal Puri 6/7 view that the ends of justice would be subserved if the convict is released on probation but with certain conditions. Convict is accordingly released on probation for a period of two years on his furnishing personal bond in the sum of Rs.25,000/ with one surety in the like amount. The convict is also directed to be of good behaviour during the said period and not to commit similar offence otherwise he will be called again to receive sentence. He shall furnish local surety having permanent abode in Delhi. He is also directed to appear as and when called upon during the above mentioned period of probation.
5. It is further ordered that a sum of Rs.10,000/ shall be deposited by convict u/s 5 of the Probation of Offenders Act, 1988 towards compensation which shall be released to the injured after expiry of the prescribed period.
6. A copy of this order be sent to the Probation Officer to keep vigilance upon the convict during the period of two years and to report to this court if he is found violating the terms of bond furnished.
Announced in open court (Nisha Saxena)
Dated:07.5.2010 Addl. Sessions Judge05(NE):
Karkardooma Courts, Delhi.
FIR no.308/2006 PS Gokal Puri 7/7