Delhi District Court
State vs . 1. Nand Kishore @ Nandu S/O Sewa Ram on 15 March, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.160/09
FIR No.271/04
U/s 307 IPC
PS Tilak Marg
State Vs. 1. Nand Kishore @ Nandu s/o Sewa Ram
2. Anil Kumar s/o Suraj Singh
Challan filed on : 27.07.04
Received by Fast Track Court on:10.12.09
Reserved for Order on : 05.03.10
Judgment delivered on : 11.03.10
JUDGMENT
Briefly stated the facts of the prosecution case are that on 31.05.04 at about 12.30 a.m on receipt of DD no. 50B SI Subhash alongwith Ct. Shafi reached at CNG Petrol Pump, Nangla Machi and came to know that injured has been removed to RML Hospital by the PCR Van. Ct. Safi was left at the spot and SI Subhash alongwith Ct. Mahender reached in RML Hospital and found Arvind @ Sonpal and Aslam admitted in the hospital. Injured Aslam was declared fit for statement at about 12.15 a.m whose statement was recorded by the IO which is Ex.PW6/A. In his statement Aslam has alleged that he is resident of Jhoggi no. 378, Devi Nagar, State Vs.Nand Kishore etc FIR no.271/04 Page No. 1 Nangla Machi, New Delhi. He is working in the parking of Patiala House Court from and sometime back he has been removed from the job by the contractor. He started committing small thefts with Arvind@ Sonu, Anil, Nand Kishore @ Nandu and Raju who are residents of Nangla Machi. Sometime back they committed the theft of iron pipe from Sarai Kale Khan and sold the same for Rs.2600/- and a quarrel took place between of him and Sonu with Nand Kishore, Anil and Raju for distribution of that money. On 21.05.04 he alongwith Sonu had taken Nandu behind CNG Petrol Pump and tried to kill him. But Nandu escaped after one knife blow and they are having enmity since then. On 30.05.04 at about 10 p.m he alongwith Sonu were sitting in Jhuggi and at that time Raju came to their Jhuggi and stated to get settle their dispute amicably. Both (Aslam and Sonu) accompanied him. When they reached near the wall of Petrol Pump near toilet, Anil and Nandu also met them and Raju stated that he has brought both of them and uttered 'in salo ko maaro'. Nandu gave blade blow on his head, mouth and hand and Raju gave blade blow to Sonu and Anil gave knife blow in the stomach of Sonu. They made State Vs.Nand Kishore etc FIR no.271/04 Page No. 2 noise and on seeing the locality people they ran away from there. Someone made telephone to the police and they were removed to the hospital. On this statement Investigating Officer made his endorsement on the basis of which the present case was registered vide FIR no.271/04. The investigation was done and accused was arrested. After completing the investigation the challan was filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 20.09.04.
3. The charge against the accused Nand Kishore and Anil Kumar was framed u/s 307/34 IPC on 10.11.04 by Sh Dilbagh Singh, the then Additional Sessions Judge to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 12 witnesses.
5. The evidence against the accused persons were State Vs.Nand Kishore etc FIR no.271/04 Page No. 3 put to them in their statement recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused Anil had opted to lead defence evidence and examined DW1 Surender in his defence. Thereafter, the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Sh Inder Kumar Ld.APP and Sh Anubhav Dubey Ld.Counsel on behalf of the accused, I have perused the testimonies of all the PWS.
8. PW1 Dr. Nikhil Talwar has opined the nature of injury on the MLC of injure Aslam as grievous. HE proved MLC Ex.PW1/A. He also proved MLC Ex.PW1/B of patient Arvind and stated that injuries were opined as simple. State Vs.Nand Kishore etc FIR no.271/04 Page No. 4
9. PW2 Dr. Ashok Kumar has examined the injured Aslam and he proved the MLC as Ex.PW1/A. He further proved the MLC of patient Arvind @ Sompal Ex.PW1/B
10. PW3 Ct. Chander Shekhar has taken the photographs of the spot and he proved negatives Ex.P1 to P20 and positive Ex.PA1 to Ex.PA20.
11. PW4 HC Dalip Kumar is the witness from PCR and he removed two persons lying at the spot with stab injuries to the hospital.
12. PW5 Ct. Mahender has deposed that DD no.50 was recorded on 30/31.05.2004 copy of which is Ex.PW5/A and he alongwith SI Subhash and Ct. Safi reached at the spot where they found blood lying at the spot. Thereafter he alongwith SI Subhash went to hospital where two persons were found admitted. He further stated that IO recorded the statement of Aslam, prepared rukka and he got the case registered. He proved seizure memo of blood stained clothes Ex.PW5/B and Ex.PW5/C. State Vs.Nand Kishore etc FIR no.271/04 Page No. 5
13. PW6 Aslam is the injured in this case and he has deposed about the incident and proved his statement Ex.PW6/A.
14. PW7 Ct.Jaipal has recorded DD no.50B copy of which is Ex.PW5/A.
15. PW8 Ct. Rajender Singh is the duty constable at RML Hospital and he handed over the sealed clothes of injured to IO. He proved seizure memos Ex.PW5/B&C.
16. PW9 Ct. Ramesh has taken the exhibits to FSL Rohini and deposited the same there.
17. PW10 HC Omkar Singh is the MHCM and he has stated that on the direction of IO he sent the case property to FSL.
18. PW11 SI Omvir Singh remained in the investigation with IO Insp.VP Sharma. He proved seizure memo of blood State Vs.Nand Kishore etc FIR no.271/04 Page No. 6 Ex.PW11/A, B & C from the spot. He further deposed that on 31.05.04 accused Nand Kishore was arrested from his jhuggi and one Topaz blade was recovered from right pant pocket. He proved the seizure memo Ex.PW11/D. He also proved arrest memo Ex.PW11/E and personal search memo Ex.PW11/F. He further stated that accused Nand Kishore was interrogated and his disclosure statement was recorded which is Ex.PW11/G. He further deposed that accused Anil Kumar was apprehended from near CNG Petrol Pump on the pointing out of accused Nand Kishore and he proved arrest memo Ex.PW11/H, personal search memo Ex.PW11/J. He further deposed that accused Anil got recovered one chhuri, sketch of which is Ex.PW11/K which was seized vide memo Ex.PW11/M. He also proved the disclosure statement Ex.PW11/L of accused Anil Kumar. He also proved the seizure memo of clothes of accused Nand Kishore which he had been wearing at the time of arrest i.e.pant and shirt having blood stains vide memo Ex.PW11/N. He identified the brick Ex.P1,2,3 & 4, blade make Topaz and match box Ex.P5 & 6, knife Ex.P7 and pant and shirt Ex.P8 &9.
State Vs.Nand Kishore etc FIR no.271/04 Page No. 7
19. PW12 ASI Sodam Singh is the FIR Recorder and he proved the copy of FIR Ex.PW12/A.
20. PW12 (wrong number it should be PW13), has deposed the version of PW11 regarding investigation as PW11 was with him during investigation. He proved site plan Ex.PW12/A. He deposited the case property in malkhana and thereafter sent to CFSL for analysis. He identified the case property and stated that despite his best efforts injured Arvind is not traceable and he cannot produce him in the court.
21. Analyzing the testimonies of all the PWS, it is revealed that PW6 Aslam is the complainant and victim in this case. There was one more injured Arvind in this case but he could not be produced in the court by the police since not traceable. I have given my thoughtful consideration on the testimony of PW6 Aslam. He has stated that he was working in the parking of Patiala House but he was removed by the thekedar and thereafter he along with accused Anil, Nand Kishore (both present in the court) and Raju(not State Vs.Nand Kishore etc FIR no.271/04 Page No. 8 present in the court) started committing theft and they had committed one theft of iron from forest of Sarai Kale Khan and sold the same for Rs.2600/- to kabaries. On distribution of said money he had a quarrel with Nand Kishore, Anil and Raju. He has further stated that on 21.05.2004 he and Sonu took Nandu behind the CNG Petrol Pump, Ring Road near Nizamuddin railway station and threatened him to kill and gave blows from blade at his back but Nandu managed to escape and run away and from that day their enmity with Nandu developed. He has further stated that on 30.05.2004 at about 10 p.m he alongwith Sonu @ Arvind were sitting in his jhuggi and Raju came and asked them that he will get the matter compromised on which they accompanied him near the toilet in front of the temple Nangla Machi where Nandu and Anil met them. Anil and Raju told "Maro Salo ko". Nandu gave him blows from blade on his face and right hand. Raju gave blow to Sonu and Anil gave knife blow in the stomach of Sonu. Thereafter he raised alarm and neighbourer gathered there. They were removed to hospital where police recorded his statement Ex.PW6/A. In view of the entire testimony of PW6 it is revealed that he is also a State Vs.Nand Kishore etc FIR no.271/04 Page No. 9 criminal since he himself has admitted that he used to commit theft in association of accused persons and the difference developed between them on the distribution of money which they had received after selling the stolen iron pipes. PW6 has himself admitted in examination in chief that he alongwith Sonu also tried to cause injuries on the person of Nandu before the incident but he managed to escape. In view of his further statement he has assigned the role of accused Nandu that he gave him blows with blade on his face and right hand. He also assigned the role of accused Raju and Anil that they gave knife blow to Sonu. Unfortunately injured Arvind @ sonu could not be examined by the prosecution since not traceable. This witness has assigned the role to both the accused Nand Kishore who caused injuries on his person as well as to accused Anil who caused injuries on the person of Sonu. I have also given my thoughtful consideration on the cross examination of PW6. On perusal of his cross examination conducted by the Ld. defence counsel his testimony could not be shattered by the Ld. defence counsel. Even Ld. defence counsel has not put any suggestion or question to PW6 that accused person State Vs.Nand Kishore etc FIR no.271/04 Page No. 10 have not caused any injuries on his person. I have also perused the MLC and as per MLC PW6 had sustained injuries on the face, forehead, neck, right hand and index finger. The MLC also corroborate the version of PW6 regarding sustaining injuries by him. The testimony of PW6 could not be shattered by the Ld. defence counsel in cross examination and his cross examination is only just to create contradictions. So, in view of the testimonies of testimony of PW6 it is revealed that he has assigned the role of accused Nand Kishore that he is the person who caused injuries on his person with blade and that accused Anil caused injuries on the person of Arvind@ Sonu. The enmity and motive to cause injuries has been established from the testimony of PW6. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured/eye witnesses are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw6 is the complainant and injured and he is the star witnesses of the prosecution. In fact he is the backbone of the prosecution case and whole prosecution case rests upon his testimony and in his testimony State Vs.Nand Kishore etc FIR no.271/04 Page No. 11 he has assigned specific role of accused persons. However, I have found some contradiction in the statement but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence in respect of the prosecution case, I have also perused and given my thoughtful consideration on the testimonies of other official witnesses.
22. PW3 Ct. Chander Sheker is the formal witness who photographed the spot and proved the photographs Ex.PA-1 to Ex.PA-20. PW4 HC Dalip Kr is also a formal witness who removed both the injured to the hospital. PW7 Ct. Jaipal recorded DD no.50B which is Ex.PW5/A.This was the information regarding stabbing incident which was sent to Ct. Safi. PW9 Ct. Ramesh has taken exhibits to FSL and PW10 HC Onkar Singh has corroborated his version that he sent to case property to FSL through Ct. Ramesh. PW12 ASI Sodan Singh has recorded the FIR. His testimony has been State Vs.Nand Kishore etc FIR no.271/04 Page No. 12 corroborated by PW5 Ct. Mahender who has stated that IO handed over him rukka and he got the case registered. So, copy of FIR has been proved by the prosecution. PW11 SI Omvir Singh remained in the investigation with IO SI Subhash Singh. The prosecution could not examine first IO SI Subhash in this case and he has been dropped. AS per challan the case was entrusted to Insp Virender Pal after registration of case. So SI Kishan has only recorded the statement of injured Ex.PW6/A and got the case registered through PW5 Ct. Mahender and PW5 has deposed in this respect. PW5 has not been cross examined. So, his testimony could not be shattered in this respect. PW11 SI Omvir Singh who was with IO has deposed about seizure of blood sample with the help of separate papers and bricks and he proved the seizure memo Ex.PW11/A,B and C. His testimony in this respect has been corroborated by PW12 Insp.Virender Pal. So, seizure memos have been proved by the prosecution. Both the witnesses have further corroborated the version of each other regarding arrest, personal search of accused Nand Kishore vide memo Ex.PW11/E and F and arrest and personal search of accused Anil vide memo Ex.PW11/H and J. I have State Vs.Nand Kishore etc FIR no.271/04 Page No. 13 also perused the arrest memos and personal search memos and arrest and personal search of both the accused have been proved by the prosecution. It has been stated by PW11 that accused Nand Kishore got recovered on Topaz Blade which was seized vide memo Ex.PW11/D and accused Anil got recovered one churri (knife) vide seizure memo Ex.PW11/M. No question has been put by the ld. defence counsel to these witnesses that no blade or churri has been seized from the alleged places vide memo ex.PW11/D&M and at the instance of accused persons. So, seizure memos have successfully been proved by the prosecution. They have also stated about seizure of clothes of injured in the hospital vide memo Ex.PW5/B and C and this has also been corroborated by PW8 Ct.Rajender Singh who was on duty in RML Hospital on that day. Both the witnesses have identified the case property. I have also perused the cross examination of these witnesses. But their testimonies could not be shattered by the Ld. defence counsel in cross examination.PW12 has also stated that the case property was sent to FSL. I have also perused the said CFSL result, though not exhibited. Blood was detected on Ex.1A i.e. State Vs.Nand Kishore etc FIR no.271/04 Page No. 14 pieces of paper having brown stains, 1B i.e. pieces of papers having brown stain, 2A i.e. one brick having dirty stains, 2B i.e.one brick having darker stains, 3A i.e. one brick having small brown stains, 4A i.e. one shirt having brown stains, 4B i.e. one banian having brown stains, 5 i.e. gauze cloth piece described as blood sample, 6A i.e. pieces of shirt having brown stains, 6B i.e. one banian having brown stains, 7 i.e. gauze cloth piece, 8 i.e. one topaz blade, 9 i.e.knife, 10a one T-shirt & 10B i.e. one paijama. As per biology report human blood of AB Group was detected on Ex.1A &1B i.e. blood stained paper, 2A, i.e. brick, 6a i.e. pieces of shirt, 6b i.e. banian and Ex.7 i.e. gauze cloth piece. On Ex.2B and 3A i.e. brick, Ex.8 Topaz blade and Ex.9 knife human blood was detected but no Group was found and on Ex.3B i.e.brick no reaction for blood was found. On Ex.4a shirt, Ex.4b Banian and on Ex.5 Gauz cloth piece, Ex.10a T-shirt and Ex.10b Paijama human blood of O group was found. Even as per the result of FSL, human blood was detected on weapon of offence i.e. Topaz blade Ex.P5 and chhuri Ex.P7. I have found some contradictions in the testimonies of official witnesses but these are of trivial nature which can be possible due to State Vs.Nand Kishore etc FIR no.271/04 Page No. 15 lapse of time. I have also considered the medical evidence in this case.
23. PW2 Dr. Ashok Kumar is the doctor who prepared the MLC of PW6 Aslam and he proved the MLC Ex.PW1/A. the following injuries are mentioned in the MLC :-
1. Left face sharp wound size of around 12 cms from angle of mouth to the upper ear and 5 cm from the angle of mouth the left ear.
2. Sharp wound around 3 cm on the forehead.
3. On the right side a sharp wound around 10 cm below right ear involving neck and right cheek and below this another wound around 8 cms
4. On the right dorsom of the right hand sharp wound size around 5 cms and below this around 3 cm sharp wound present.
5. Sharp wound on the right index finger size around 1 cm
24. As per MLC Ex.PW1/B of injured Arvind @ Sonpal the following injuries are mentioned :-
1. A sharp wounds on the left side of the cheek (1) upper most 5 cm (2) 8 cm (3) 5 cm and (4) 2 cm on chin
2. A 10 cm sharp wound on the left side of neck below the mandible.
3. Another superficial sharp wound on left side neck 8 cm in size
4. A stab wound present on the umbilicus through which omentum had come out.
State Vs.Nand Kishore etc FIR no.271/04 Page No. 16
25. PW1 Dr. Nikhil Talwar has stated that he gave the opinion regarding nature of injury and he has stated that he opined the nature of injury as grievous on the MLC of Aslam and simple on the MLC of injured Arvind. So, the prosecution has examined the doctor who has prepared the MLC of injured as well as the doctor who opined the nature of injury. So,MLC as well as nature of injuries have successfully been proved by the prosecution.
26. In nutshell, PW6 Aslam has assigned the role of both the accused in his testimony that accused Nand Kishore gave blade blow on his face and head and that accused Anil gave blow with knife on the person of Arvind @ Sonpal. Injured Arvind has not been examined by the prosecution due to demolition of jhuggies. However, it is well settled law that quality of evidence has to be considered and not the quantity of evidence. So, PW6 has assigned specific role to both the accused Nand Kishore as well as accused Anil Kumar in this case. Even as per the defence witness DW1 Surender the quarrel between accused persons as well as State Vs.Nand Kishore etc FIR no.271/04 Page No. 17 injured stood proved. The prosecution has been able to prove the MLC as well as nature of injuries in this case. The injuries on the person of Pw6 Aslam have been opined as grievous and on the person of Arvind @ Sonpal, the injuries have been opined as simple. It is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract the provisions of sec.307 IPC is guilty intention or knowledge with which the all was done irrespective of result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results. The question of intention to kill or the knowledge of death in terms of sec.307 IPC is a question of fact and not one of law. It would all depend on the facts of a given case. It is held in Vasant Virthu Jadhav Vs. State of Maharashtra (1997) 2 Crimes 539 (Bom) that The important thing to be borne in mind in determining the question whether an offence under section 307, is made out is the intention and not the injury (even if simple or minor). So, as per the ingredients of sec.307 IPC, the intention and knowledge has to be seen and as per the evidence available on file both the accused have caused State Vs.Nand Kishore etc FIR no.271/04 Page No. 18 injuries with blade and churri on the persons of injured with the intention to kill them. So, I am of the view that the prosecution has been able to prove its case u/s 307/34 IPC against both the accused Nand Kishore and Anil Kumar .
27. As a sequel to my findings above, I am of the view that the prosecution has left no stone unturned to prove its case against both the accused persons. I, therefore hold accused Nand Kishore and Anil Kumar guilty for the commission of offence punishable u/s 307/34 IPC and they both are convicted thereunder.
Announced in the open Court on 11.03.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Nand Kishore etc FIR no.271/04 Page No. 19 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.160/09 FIR No.271/04 U/s 307 IPC PS Tilak Marg State Vs. 1. Nand Kishore @ Nandu s/o Sewa Ram
2. Anil Kumar s/o Suraj Singh ORDER ON THE POINT OF SENTENCE Accused Nand Kishore and Anil Kumar have been held guilty for the commission of offence punishable u/s 307/34 IPC and convicted thereunder vide Judgment dated 11.03.10.
2. I have heard the Ld. counsel for the accused as well as accused/convict on the point of sentence. During the course of arguments it has been submitted on behalf of the convict Nand Kishore he is a married having three children. He has two daughters aged about 9 years and 6 years and he has one son aged about 3 years. His wife is deaf and dumb and he belonged to a neutral family. There is no one to look after his family. It has been further submitted that he remained in Jail for two years.
3. It has been submitted on behalf of accused Anil Kumar that he is also a married boy having 2 children aged about 14 years and 12 years. His father is 70 years old and his mother is 65 years old. They have no source of income.
State Vs.Nand Kishore etc FIR no.271/04 Page No. 20
4. It has further been submitted on behalf of both the convicts that they are young boy and they are the first offenders. There is no case registered against them in any court of law nor they have been convicted earlier. They are the elder son in the family and all the responsibility of family are upon their shoulders. They are only the bread earner in their families and entire family is dependent upon them. So, lenient view may be taken against both the convicts.
5. Keeping in view the facts and circumstances of the case and the act done by the convicts, I am of the view that they are not entitled to any leniency.
6. In view of this and in facts and circumstances of the case, both the convicts are ordered to undergo RI for five years each and to pay fine of Rs.1000/-each u/s 307/34 IPC and in default of payment of fine to further undergo SI for one month.
7. The benefit of sec.428 Cr.P.C be given to both the convicts. Copy of this order on the point of sentence and copy of Judgment be given to the convicts free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open Court on 15.03.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Nand Kishore etc FIR no.271/04 Page No. 21 State Vs.Nand Kishore etc FIR no.271/04 Page No. 22