Delhi District Court
State vs . 1. Vijay Singh, on 24 January, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 11/10.
Unique Case ID No.02405R0364012009.
State Vs. 1. Vijay Singh,
S/o Sh. Pratap Singh,
R/o H.No.596, Near Masjid,
V.P.O. Bijwasan,
New Delhi.
2. Ram Kumar,
S/o Sh. Pratap Singh
R/o H.No.596, Near Masjid,
V.P.O. Bijwasan,
New Delhi.
3. Govind,
S/o Sh. Ram Kumar,
R/o H.No.596, Near Masjid,
V.P.O. Bijwasan,
New Delhi.
SC No.11/10. Page 1 of 19
4. Kapil,
S/o Sh. Ram Kumar,
R/o H.No.596, Near Masjid,
V.P.O. Bijwasan,
New Delhi.
5. Praveen,
S/o Sh. Ram Kumar,
R/o H.No.596, Near Masjid,
V.P.O. Bijwasan,
New Delhi.
Date of Institution : 15.12.2009.
FIR No.9 dated 13.1.2009.
U/s. 308/452/147/148/149 IPC.
P.S. : Kapasahera.
Date of reserving judgment/Order : 19.1.2011.
Date of pronouncement : 24.1.2011.
JUDGMENT
1. The five accused are facing trial for the offences U/s. 308/452 IPC read with Section 34 IPC.
SC No.11/10. Page 2 of 19
2. As per the prosecution case, DD No.27A was received in P.S. Kapasahera on 12.1.09 to the effect that a fight has been going on in Harijan Basti, near Bijwasan Railway Station. ASI Om Prakash reached the spot, where he found that the injured has been removed to hospital, whereupon he also reached Safdarjung Hospital. He found injured Dheeraj, son of Ram Niwas, admitted there vide MLC No. 4809/09. On inquiry, Dheeraj told ASI Om Prakash that he is feeling intense pain in his head and he would get his statement recorded later on. It is further alleged that the injured Dheeraj came to the police station of his own on 13.1.09 and got his statement recorded by ASI O.P. Yadav. It would be useful to reproduce the said statement of injured Dheeraj herein below :
"I reside on the aforesaid given address alongwith my parents. I drive a private vehicle. On 11.1.09 at about 8.30 p.m. when I was returning to my home, three boys riding on a motorcycle came from my behind in a fast speed. When I asked them to drive the motorcycle slowly and otherwise, children may get injured, they abused me. SC No.11/10. Page 3 of 19 I asked them to leave the place quietly or otherwise, it will not be good for them. They further abused me and left the spot. Sometime later 5 to 6 boys accompanied by a male person came to my house and after entering the drawing room (Baithak) one of them namely Govind, son of Sh. Ram Kumar, hit me on my head with a sword, the other persons Praveen, son of Sh. Ram Kumar and Vijay Singh, son of Sh. Pratap Singh and Ram Kumar himself caught hold of me and pulled me outside my house and hit me by fists and dandas. When public started gathering around us, they fled from the spot leaving me there and abusing me. After some time, PCR vehicle came there and took me to Safdarjung Hospital. "
3. Upon the aforesaid statement of injured Dheeraj, FIR NO. 9/09 was registered in the police station Kapasahera on 13.1.09 at 8.20 p.m. and investigation was handed over to ASI O.P. Yadav. SC No.11/10. Page 4 of 19
4. After completion of investigation, police laid Charge Sheet against the aforesaid five accused.
5. On 19.3.2010 Charges were framed against accused as under :
"That you all the accused, on 11.1.2009 at about 8.30 p.m. at the house of Ram Niwas, Bijwasan, Harijan Basti, New Delhi, within the jurisdiction of P.S. Kapasahera in furtherance of your common intention committed house trespass by entering into the house of complainant Dheeraj i.e. H. No.1236, Harijan Basti, Bijwasan, and caused injuries on the person of Dheeraj with sword and dandas with such intention, that if by that act you had caused the death of Dheeraj, you would have been guilty of culpable homicide not amounting to murder and thereby committed an offence punishable U/s.308/452 IPC read with Section 34 IPC and within my cognizance."
6. The prosecution examined nine witnesses to bring home SC No.11/10. Page 5 of 19 the guilt of the accused. Accused did not lead any evidence in defence.
7. I have heard Ld. APP for State and Sh. Avnish Rana, Ld. Counsel for the accused.
8. As stated herein above, the police machinery was set in motion in this case pursuant to the statement dated 13.1.09 of the injured Dheeraj, which has been reproduced herein above. The same has been proved as Ex.PW1/DA and as per the same, some altercations took place between him and three motorcycle riders at 8.30 p.m. on 11.1.09. Thereafter, 5 to 6 boys and a male person came to his house, who assaulted him brutally, pulled him outside his house and beat him with fists and dandas. He has named four assailants in the statement. According to him accused Govind, son of Sh. Ram Kumar hit him on his head by a sword, whereas other three assailants i.e. accused Praveen, son of Sh. Ram Kumar, Vijay, son of Sh. Pratap Singh and Ram Kumar pulled him outside his house and beat him with fists and dandas. It is to be noted here that the statement of the injured SC No.11/10. Page 6 of 19 was given by him of his own by going to the police station himself on 13.1.09 i.e. two days after the incident. It is also relevant to mention here that when police came to him for inquiries in the hospital on 11.1.09, he refused to give his statement saying that he is feeling intense pain in his head.
9. This injured Dheeraj has appeared as PW1 for prosecution. In his deposition, he says that when he was returning to his house at about 8 or 8.15 p.m., he could not tell the date, month and year. Govind, Praveen and Manoj were seen by him coming on a motorcycle. He further deposed that the motorcycle was being driven in a fast speed and it collided with him. He asked all of them to drive the motorcycle in a careful manner as small children also pass by that way, all the three persons called him 'Chamar'. He also stated all of them were under influence of liquor and a verbal altercation took place, which came to an end after the intervention of an elderly person. He further stated that accused Govind made phone call to some person and told him that he will be taught a lesson. He further stated that he apprised his mother about the incident in the outer room SC No.11/10. Page 7 of 19 of their house and when he was having dinner in the same room, which is known as Baithak, six to seven persons came inside the Baithak and dragged him outside the same, he was given beating by Jelly and Govind was armed with a sword. According to him, Manoj caught hold him from his back and Govind hit him with a sword on his head after he was dragged out, he fell unconscious and did not know what happened thereafter and he regained consciousness in the hospital on the next date of hearing. He further stated that he knew only Govind, Manoj and Praveen by name out of those 6 to 7 persons, who came to his house and gave beatings to him. He correctly identified accused Govind present in Court and also identified other two accused Kapil and Praveen to be the assailants but stated that he did not know their names. He only pointed out towards them in the Court. He further stated that Manoj is younger brother of Govind and is not present in Court. According to him, accused Praveen also was not present in the Court when his deposition was recorded.
10. This witness was declared hostile by the Ld. APP and in his cross examination by Ld. APP, he reiterated that he cannot say SC No.11/10. Page 8 of 19 what happened after he was given beatings as he had fell unconscious. He further admitted the suggestion that all the five accused persons in Court were involved in the incident. He stated that he can identify the sword, if shown to him, but cannot give its full description as it was hit from back and he has only seen a portion of the same. According to him, the sword was having a handle of wood, the handle of Jelly was also of wood and it had two pointed ends. He identified the sword and Jelly Ex.P2 and Ex.P1 when shown to him in the Court, but it has been observed that the Jelly shown to him had four pointed ends and not two. In the cross examination conducted by Ld. Counsel for accused, he deposed that he cannot say whether, he was hit by a sharp side of the sword or the blunt side of the same. No proceedings were conducted in his presence outside his house except recording his statement. He states that he returned his home from hospital on 12.1.09 and police came to his house on 13.1.09. He also admitted that accused Govind was known to him from school itself as they studied together. He also admitted that he gave the names of all the five accused before the incident and that there is a narrow lane in front of his house and not a road. He also deposed that PCR Van reached SC No.11/10. Page 9 of 19 hospital by Railway Phatak and not via Naik Mohalla.
11. Apparently, there are various contradictions in the previous statement of this witness Ex.PW1/DA and his deposition before the Court. Also he seemed to be very shaky and less confident during his deposition in Court. In Ex.PW1/DA he states that accused Govind hit him on his head with a sword and other three accused i.e. Praveen, Vijay Singh and Ram Kumar pulled him outside his house and beat him with fists and dandas, whereas in his deposition before the Court, he has introduced one more person by name Manoj, who is not an accused in this case at all. He does not name accused Vijay Singh and Ram Kumar in his deposition before the Court, though it is his contention that he knew the name of all the five accused before the incident and Govind was known to him from the school days as they have studied together. As per his deposition before the Court, he was caught hold from his back by Manoj and Govind hit him with a sword on his head after he was dragged by from his house by 6 to 7 persons. In the Court, he identified only accused Govind by name. He also identified accused Kapil and Praveen, but only by their appearance SC No.11/10. Page 10 of 19 and not by their name, though, he admits that he knew all the accused by name before the incident. He has also stated that accused Praveen is not present in Court. He does not assign any role in the incident to accused Vijay Singh and Ram Kumar in his statement before the Court. He also does not assign any role to accused Kapil and Praveen, but stated that they also were present in his house at the time of incident. He nowhere stated in his deposition before the Court that he was hit by a Jelly also by any of the assailants.
12. What can be gathered from the testimony of this witness is that Govind alongwith his 6 or 7 associates had gone to the house of this witness Dheeraj. But it is not clear whether the other four accused were alongwith Govind or not. Their presence on the spot alongwith Govind became highly doubtful. Govind was armed with a sword and hit him with a sword on his head. Thereafter, he was dragged out of the house and was beaten by associates of Govind, but by only fists as they were not armed at all. So far as, Jelly or dandas are concerned, this witness has nowhere stated that any of the assailants was armed with Jelly or danda. He has given a wrong description of the Jelly, SC No.11/10. Page 11 of 19 with which he had been allegedly hit. According to him, Jelly has only two pointed ends, whereas the Jelly shown to him has four pointed ends. Therefore, use of Jelly seems to be highly unbelievable and improbable.
13. Smt. Suresh Devi, the mother of injured Dheeraj has been examined as PW2. Her deposition also is absolutely confusing and lacks certainty. It does not inspire any confidence at all. So far as, the identity of the assailants is concerned, she has testified as under :
"On 11th January but I cannot tell the year as I am illetrate as had not gone to school and it was after 8 PM. I do not know the name of any of the accused persons but I only recognize them from face. Witness has pointed out towards one of the accused persons whose name transpired as Govind. The witness has further stated that there were five persons but out of them two are not present in the court. The witness has further pointed out towards another accused person and towards another SC No.11/10. Page 12 of 19 accused person whose name has been transpired as Kapil and Ram kumar. She has also stated that other persons had not come to the court and two other persons who had come to the court were not present at the spot. Further examination Deferred.
After lunch, the witness has made very first statement that two persons are not there, but five persons present in Court were there.
Witness has further volunteered that the person who had caught hold of my son is not present in the Court. However, the person, who had hit his son with sword is present and the person who had hit his son with a 'Jaily' is present. She has also stated that one of the persons, who came, was having a danda in his hand and one was having a hockey."
14. The presence of only one accused Govind becomes established from the deposition of this witness. She has stated before SC No.11/10. Page 13 of 19 lunch that Vijay Singh and Praveen were not present at the spot. According to her, Ram Kumar was one of the assailants, whereas PW1 Dheeraj has not named him in his deposition. She further states that two associates of Govind are not present in the Court. In her deposition before lunch, she states that there was only five persons, who were the assailants, out of whom, two are not present in Court, but after lunch states that even though the two assailants are not present in Court, but five persons present in Court were on the spot on the date of incident. This part of the statement seems to be tutored to her during the lunch interval and that is why she stated so in his deposition after lunch.
15. In her further examinationinchief, this witness has stated that accused Govind present in Court hit her son with a sword and accused Ram Kumar hit him with a Jelly. She further states that one of the assailants hit her on her back with a danda, but she did not know who hit her. According to her, the assailants ran away from the spot on their own and not because of any other thing. Her examination seems to be a total improvement over her statement U/s. SC No.11/10. Page 14 of 19 161 Cr.PC Ex.PW2/DA. In her cross examination, she stated that accused Vijay Singh hit Dheeraj with a Jelly on his shoulder and he started bleeding from his shoulder, whereas Dheeraj has nowhere mentioned any such injury on shoulder and the MLC also does not show any such injury on his shoulder.
16. Another eye witness to the incident Harish Kumar has been examined as PW3. He also deposed that on 11.1.09, three persons came on a motorcycle being driven at a fast speed hit Dheeraj. On being asked by Dheeraj to drive slowly, those persons told him "Tu Chamar Ke, Hamara Kaya Kar Lega" and a scuffle took place between Dheeraj and Govind. They were separated by some persons, who had gathered there and both Dheeraj and Govind slapped each other. He is not a witness to the subsequent incident, which is alleged to have happened in the house of Dheeraj when he was hit by a sword and Jelly etc. So, the deposition of this witness only proves motive for the accused Govind to attack Dheeraj later on.
17. Coming to the injuries suffered by Dheeraj, same has SC No.11/10. Page 15 of 19 been opined to be simple, non grievous in MLC Ex.PW5/A. As per the deposition of PW5 Dr. Lalit Mohan, the injured Dheeraj was found to be conscious oriented at the time of his examination and a large CLW on the left side of scalp measuring 11 cm X .5 X 1.5 cm was seen. As per MLC, the injuries were caused by a sharp weapon. In the cross examination, this witness has stated that it was a case of minor head injury and the stay in the hospital was uneventful. He specifically stated that there was only one injury suffered by Dheeraj.
18. The contents of MLC Ex.PW5/A and the deposition of PW5 runs counter to the case of the prosecution as well as the deposition of PW1 and PW2. Had Dheeraj been hit by Jelly and dandas also besides sword, injury would not have been a single and at only one place on his body. The injury by Jelly, which is a pointed object could have been visible and needed treatment. This shows that the allegation that Dheeraj was hit by Jelly and dandas also is imaginary and far being true. This further rules out the presence of accused Vijay on the spot of occurrence, who is alleged to have hit Dheeraj with a Jelly. The presence of Kapil at the spot of occurrence SC No.11/10. Page 16 of 19 is ruled out by the statement of Dheeraj given to police Ex.PW1/DA and his deposition before the court as PW1. In the statement Ex.PW1/DA, he does not name Kapil to be the assailant and in his deposition before the Court, he does not assign any role to him during the incident. As mentioned herein above, Dheeraj has not mentioned presence of accused Ram Kumar at the place of incident in his deposition before the Court as PW1. I have also come to the conclusion earlier that presence of accused Kapil is highly doubtful.
19. In view of the testimonies of eye witnesses as mentioned hereinabove, it will be a futile exercise to dwell upon the deposition of police witnesses, who came to the picture later on, and were not present at the spot at the time of incident.
20. It was argued by Ld. Counsel for the accused that since the injuries on the head of the Complainant Dheeraj has been opined to be simple/non grievous, he cannot be convicted U/s.308 IPC. I do not agree with the submissions of Ld. Counsel. For conviction U/s. 308 IPC, it is not necessary that the injury inflicted must be serious SC No.11/10. Page 17 of 19 and grievous. What is required to be seen is the intention and knowledge of the assailant, with which the injury has been inflicted. If the intention of the assailant is to commit murder, he can be tried and convicted for the offence of attempt to murder U/s.307 IPC even if no injury is caused by the offending act. Similarly, if an act is committed by the assailant with the knowledge that if by that act, he caused death, he would be guilty of culpable homicide, not amounting to murder, he can be tried and convicted U/s.308 IPC even if there is no injury caused by the offending act or the injury caused is simple and non grievous. In the present case, it has been proved that accused Govind hit Dheeraj on head with a sword. Head is a vital part of human body and if a person is being hit on the head by the sword, it cannot be said that the person hitting does not have the knowledge that he might cause death by said hit.
21. For the aforesaid reasons, accused Govind is liable to be convicted U/s.308 IPC and all other accused are liable to be acquitted. Resultantly, accused Govind is hereby convicted U/s.308 IPC for the offence of attempt to commit culpable homicide. However, all other SC No.11/10. Page 18 of 19 accused are hereby acquitted.
Accused Govind be taken into custody.
Bail Bonds of other accused released. Their Sureties discharged.
Announced in open (VIRENDER BHAT)
Court on 24.1.2011. A.S.J. :Dwarka Courts
New Delhi.
SC No.11/10. Page 19 of 19