Delhi District Court
State vs . Pawan on 28 July, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
DWARKA COURTS, NEW DELHI
SC No.21/1/12
FIR No.440/08
U/s 308 IPC
PS Dabri
State
Vs.
Pawan S/o ShJagmal Singh
R/o F65B Vishwash Park
Rajapuri, Delhi ........ Accused
Challan filed on : 18.05.09
Reserved for Order on : 20.07.2012
Judgment delivered on : 28.07.2012
JUDGMENT
Briefly stated the facts of the prosecution case are that on 31.07.2008 at about 11 p.m on receipt of DD no.10A ASI Sukhbir alongwith Ct. Jai Bhagwan reached in DDU Hospital where MLC no.14466/08 of injured Ritesh Nagar was collected in which the injury was stated to be grievous. Thereafter DD no.11A State Vs. Pawan FIR no.440/08 Page No. 1 of 19 was received wherein it was reported that patient has been referred to RML Hospital. IO reached in RML Hospital where the statement of injured was recorded which is Ex.PW1/A. In his statement, injured Ritesh Nagar has alleged that on 31.7.08 at about 11 p.m he alongwith his friend Ramzan were going to Payal Hotel for fetching milk where Pawan and his associates started beating Ramjan. He intervened and then Pawan and his associates gave base ball bat blow on his head. He was also given danda blows by his friends. He sustained injury on left hand thumb. His friend Ramjan took him to DDU Hospital. On this statement IO made his endorsement Ex.PW8/C on the basis of which the present case was registered vide FIR no.440/08. The investigation was done and accused was arrested. After completion of investigation, the accused persons were challaned to 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 20.01.10.
3. The charge against the accused Pawan has been framed u/s 308 IPC on 05.03.2010 by Sh I.S.Mehta, Ld. District Judge to which the accused pleaded not guilty and claimed trial. State Vs. Pawan FIR no.440/08 Page No. 2 of 19
4. The prosecution in all has examined as many as 8 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case due to previous enmity. The accused did not lead any defence evidence. Thereafter the case was fixed for final arguments.
6. I have heard Ld. APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS & exhibited documents carefully.
7. PW1 Ritesh Nagar is the complainant and victim in this case. He has stated that police recorded his statement Ex.PW1/A in RML Hospital.
8. PW2 Ramzan is the eye witness and he has deposed as to how the accused persons assaulted PW1. He has also stated that accused Pawan was arrested vide memo Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B. He was declared hostile by the prosecution on some material points and cross examined by the Ld. APP for the State.
State Vs. Pawan FIR no.440/08 Page No. 3 of 19
9. PW3 Dr. Sumit Valecha has deposed that he examined the Xray report of Ritesh and he found fracture of the parietal bone on the skull Xray. His report is Ex.PW3/A.
10. PW4 Retired ASI Virender Singh has deposed that he was posted as duty officer on 1.8.2008 and he recorded FIR no. 440/08 copy of FIR is Ex.PW4/A& his endorsement is Ex.PW4/B. He also recorded DD no.10A Ex.PW4/C and DD no.11A Ex.PW4/D.
11. PW5 Ct. Jai Bhagwan has deposed that on 31.7.08 on receipt of DD no.10A, he accompanied ASI Sukhbir to DDU Hospital and then to RML Hospital where injured was found admitted. ASI Sukhbir recorded the statement of injured, prepared rukka and handed over to him for registration of case. He went to PS and got the case registered. After registration of the case he reached at the place of occurrence where ASI prepared the site plan in the presence of Ramzan. He has deposed about arrest and personal search of accused and that he made disclosure statement Ex.PW5/A.
12. PW6 Dr. Narinder Solanki has appeared for Dr. State Vs. Pawan FIR no.440/08 Page No. 4 of 19 Mandeep who had examined the injured and prepared his MLC.
13. PW7 Dr. Arvind Singh has deposed that he examined Ritesh as he was referred to Surgery ward. He found fracture at right parietal bone skull with sub dural haemorrhage with sub archanoid haemorrhae. The injuries were grievous in nature. Patient was referred to higher center for further management.
14. PW8 ASI Sukhbir Singh is the IO of this case and he has deposed that he reached in DDU Hospital and thereafter in RML Hospital where he moved an application Ex.PW8/A for taking permission to record the statement of injured. Doctor declared the injured fit for statement vide endorsement Ex.PW8/B and he recorded the statement Ex.PW1/A. He prepared rukka Ex.PW8/C and got the case registered. The copy of FIR is Ex.PW4/A. He prepared the site plan Ex.PW8/D on the pointing out of Ramjan. They searched the accused and arrested him from Gali of Rajapuri vide memo Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B. His disclosure statement was recorded.
15. In the overall analysis of the testimonies of all the State Vs. Pawan FIR no.440/08 Page No. 5 of 19 witnesses, it is revealed that PW1 Ritesh Nagar is the complainant and injured and PW2 Ramzan is the eye witness in this case and they are the star witness of the prosecution and whole case of the prosecution depends on their testimonies. Infact they are the backbone of the prosecution case. In his testimony PW1 Ritesh Nagar has deposed that on 31.8.2008 at about 11 p.m he was coming alongwith his friend Ramzan. When he halted at Payal Hotel for purchasing milk, in the meantime, accused Pawan, present in the court today, came with 23 friends and started assaulting his friend Ramzan. When he tried to intervene, accused Pawan had given him injuries on his head with the base ball bat. His associates had also given him injuries on his left hand. He also received injuries on his head and left hand thumb. His friend Ramzan had taken him to DDU Hospital from where he was referred to RML Hospital. He was treated medically for one day and thereafter his treatment continued for 78 days in private hospital. He know accused only by his name and he had some previous grudge with his friend Ramzan. Police recorded his statement in the hospital which is Ex.PW1/A. He can identify the baseball bat if shown to him. In cross examination he has stated that he does not know the exact address of the accused. He know Ramzan for two years. Accused Ramzan resides at the distance of State Vs. Pawan FIR no.440/08 Page No. 6 of 19 half kilometer from his house. No quarrel had taken place between him and accused Pawan prior to this occurrence. Accused Pawan attacked upon with a wooden base ball bat. At the time of incident, his partner Ramzan was there with him. Two/three boys were with accused. No public person had gathered at the spot. He cannot tell what clothes the accused was wearing. The blood started oozing from his head and same had fallen on his clothes as well as on earth. He kept the blood stained clothes with him. It may be possible that base ball bat might contain blood stains. He cannot say whether the said base ball bat was taken into possession by the police or not. He has not raised an alarm for help. He denied the suggestion that accused is falsely implicated in the present case as he is having bad eye on his property.
16. PW2 Ramzan is the eye witness and he has also stated that on 31.7.08 he was going with his friend Ritesh and when they reached near Payal Dhabba, accused Pawan alongwith 56 persons came and started quarreling with him. He knew accused Pawan present in the court. He caught hold the accused. One of the associate of accused, assaulted on the head of Ritesh by base ball bat. Ritesh sustained injuries in his head and left hand thumb. On the next date, police recorded his statement and prepared site plan. State Vs. Pawan FIR no.440/08 Page No. 7 of 19 Accused Pawan was arrested vide memo ex.PW2/A and his personal search was conducted vide memo ex.PW2/B. He was declared hostile by the prosecution on some material points and cross examined by the Ld. APP for the State. He denied that accused present in the court today gave base ball bat blow on the head of complainant Ritesh. In cross examination he has stated that at the time of incident except him and Ritesh, no one else was with them. He did not see as to who was holding the base ball bat in his hand and who has given the blow of base ball bat on the head of Ritesh.
17. From the testimony of PW2 Ramzan it can be inferred that quarrel had taken place on 31.7.08 between him, complainant on one side and accused Pawan & his associates on the other side. However, he has not assigned the role of present accused that he had caused injury on the person of complainant Ritesh. Reverting back to the testimony of PW1 Ritesh Nagar, who is the complainant and injured in this case, he has specifically stated that when he tried to intervene, accused Pawan had given him injuries on his head with base ball bat and that his associates had also given him injuries on his left hand thumb. He has also stated that accused Pawan had some previous grudge with his friend Ramzan. State Vs. Pawan FIR no.440/08 Page No. 8 of 19 Considering the cross examination of PW1 it is revealed that no suggestion has been put by the Ld. Defence counsel to PW1 that accused had not grudge against Ramzan or that accused had not given base bat blow on his head. PW2 Ramzan has corroborated the version of complainant PW1 that he alongwith PW1 were going together to fetch milk and that Ritesh sustained injuries on the head by base ball bat. In cross examination PW1 has stated that accused Pawan attacked upon with a wooden base ball bat. By putting this question it has been admitted by the defence that accused Pawan had attacked on PW1 Ritesh. The testimony of PW1 could not be shattered in cross examination by the Ld. Defence Counsel. Ld. Defence counsel has put a suggestion to PW1 which he denied that he has falsely implicated the accused as he is having bad eye on his property. There is no evidence led by either side that accused and complainant are related to each other and that there is property dispute between them. Without relation between them, this suggestion of the Ld. Counsel is baseless. PW1 has assigned the role of present accused in his statement. I have also perused the MLC of injured Ritesh which is Ex.PW6/A. It is mentioned in the MLC ' alleged history of assault as told by self and brought by Ramzan'. The patient was brought to the hospital on 1.8.08 at 1.36 a.m. So, the MLC corroborate the version of PW1&2 State Vs. Pawan FIR no.440/08 Page No. 9 of 19 regarding date and time of incident. The doctor has mentioned the injuries as (1) CLW at right parietal region 5x1 cm and (2) Parietal Avulsioin of left thumb nail. The testimony of PW1 is therefore corroborated by the medical evidence. PW1 has given consistent statement in this case. PW1 & 2 are the main star witnesses of the prosecution being complainant/injured and eye witness. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured 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 Pw1 Ritesh is the complainant and injured and he is the star witness 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 and he has specifically stated and assigned the role of accused Pawan. No question has been put by the ld. defence counsel to PW1 that accused did not cause injury on his head by base ball bat. So, case of the prosecution stand admitted. However, I have found some contradiction in the statements of both the witnesses 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 courts in view of the observation of case law Asha @ Ashanand & State Vs. Pawan FIR no.440/08 Page No. 10 of 19 Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the supportive evidence in respect of the prosecution case by PW1, I have also perused and given my thoughtful consideration on the testimonies of other official witnesses.
18. PW8 ASI Sukhbir Singh is the IO of this case who on receipt of DD no.10A reached in DDU Hospital and then reached in RML Hospital where he moved an application Ex.PW8/A and recorded statement of injured Ex.PW1/A. PW5 Ct. Jai Bhagwan was with him and he has also deposed on the same lines and corroborated the testimonies of each other. PW8 prepared the rukka and got the case registered through PW5 Ct. Jai Bhagwan. PW4 Retired ASI Virender Singh is the witness who recorded the FIR of the present case. The copy of FIR is Ex.PW4/A. No question has been put to PW8 ASI Sukhvir in cross examination that he did not prepare the rukka or to PW5 that he did not go to PS for registration of the case. Therefore, it is proved that PW8 had prepared the rukka in the hospital and PW5 got the case registered. PW8 has further stated that he prepared the site plan Ex.PW8/D. PW2 Ramzan has stated that next day police recorded his statement and prepared the site plan. PW8 has also stated that he prepared the site plan at the pointing out of Ramzan. The site plan is available State Vs. Pawan FIR no.440/08 Page No. 11 of 19 on file and same is also proved. PW8 and PW5 have further corroborated the version of each other regarding arrest of accused Pawan vide memo Ex.PW2/A and that his personal search was conducted vide memo ex.PW2/B. Their version regarding arrest has further been corroborated by PW2 Ramzan. No question has been put by the Ld. Defenece counsel in cross examination that the accused was not arrested as alleged. So, arrest memo and personal search memos stand proved by the prosecution. I have also perused the cross examination of PW5&8 but their testimonies could not be shattered by the Ld. Defence counsel. However there are some contradiction in the testimonies of official witnesses also which can be possible due to lapse of time.
19. I have also perused the medical evidence in this case. PW6 Dr. Narinder Solanki has appeared for Dr. Mandeep who has prepared the MLC of injured Ritesh Nagar. He has stated that Dr. Mandeep had left the service from the hospital. The MLC is Ex.PW6/A. Dr. Mandeep referred the patient to Surgery where PW3 Dr. Sumit Valecha had examined him and he has stated that after examination of Xray report no.3871 he found fracture on the parietal bone on the skull X ray. His report is Ex.PW3/A. PW7 Dr. Arvind Singh has also examined the complainant and he opined State Vs. Pawan FIR no.440/08 Page No. 12 of 19 the nature of injury as grievous. In cross examination he has stated that he has opined the nature of injury after going through CT scan and Xray Skull Report. CT Scan report is not on judicial file. I have also perused the MLC. On the MLC Ex.PW6/A of injured Ritesh, the nature of injury has been opined as Grievous. The injury on the person of Ritesh has been opined on the basis of report of CT Scan and Xray. But PW7 has himself admitted that CT Scan report is not on judicial file. The doctor who prepared the MLC of complainant has not been examined by the prosecution and in her place Dr. Narinder Solanki has been examined. As per the allegations and deposition made by PW1 Ritesh he has assigned the role of present accused Pawan that he had caused injuries on his head with base ball bat. But the prosecution could not recover the base ball bat. The injury opined by the doctor on the person of injured Ritesh is grievous.
20. In order to constitute the offence u/s 308 IPC, it must be proved, (1) that the accused committed an act, (2) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder, (3) that the offence was committed under such circumstances if the accused by that act had caused death he would have been guilty of culpable homicide. State Vs. Pawan FIR no.440/08 Page No. 13 of 19 The most important circumstance in a case u/s 308 IPC would be that an act should be shown to be committed with the intention or knowledge to commit culpable homicide not amounting to murder. Intention is question of fact which is to be gathered from the acts committed by the accused and knowledge means awareness of the consequences of the act. It means the knowledge that specified consequences would result or could result by doing an act. By applying the aforesaid test and considering the present case facts, the injuries were caused only when PW1 Ritesh (complainant) intervened in the quarrel between accused Pawan and PW2 Ramzan and I am of the view that the injuries were caused by accused on the person of PW1 on the spur of moment. The injuries are not such which could link or in any manner result in the death of the injured person. In case Law Mohd. Mussabir Vs. State, decided on : 03.08.2011,CRL.APPEAL NOS. 610/2011 & 617/2011 by Hon'ble Mr. Justice S. Ravinder Bhat and Hon'ble Mr. Justice G.P.Mittal it has been observed that: "The question, then, is whether the facts proved and the overall surrounding circumstances point to an attempt to commit culpable homicide punishable with imprisonment which extends to 7 years under Section 308. For an act to constitute an offence to commit culpable homicide, the intention or knowledge of the aggressor to do something that State Vs. Pawan FIR no.440/08 Page No. 14 of 19 would result in causing an injury that might lead to the death of the victim has to be visibly and clearly manifested. Here the evidence shows that Jamil Ahmed inflicted a mere simple injury on PW8 Mohd. Mujammil. The evidence discloses that Jamil Ahmed caught hold of Mohd. Muzammil, and the other accused Danish, who was not present, went there and after uttering some threatening words gave an iron rod blow on PW4's head. The role attributed to Jameel Ahmed was that he pulled Mohd. Mussabir inside and also later inflicted a simple injury on Mohd. Mujammil. The nature of the injury while not superficial or simple, yet in these circumstances, can by no means be said to be such that victim could have died if the attempt has been successful. Ex.PW5/A Mohd. Mussabir's MLC in fact records that though the injury was grievous, the condition of the patient was satisfactory. Furthermore, Ex.PW5/DX, the MLC issued by the same witness PW5 and proved by her during the course of her deposition, discloses that Jameel Ahmed was also admitted in Hospital and remained there for two days; he was discharged on 11.3.2006. In fact he was not even discharged but shifted to National Heart Institute for further investigation and treatment.
Having regard to all these circumstances, we are not persuaded to hold that Jameel Ahmed could be convicted for the offences punishable under Section308/34 IPC. In an State Vs. Pawan FIR no.440/08 Page No. 15 of 19 earlier part of the judgment, we have held that the nature of the injuries inflicted upon Mohd. Mussabir were not simple. Having regard to the material on record, the injuries were grievous and the conviction, therefore, ought to have been under Section325 IPC.
21. In view of my above discussions and facts and circumstances of the case and the case law observations discussed above, I am of the view that this case does not fall under section 308 IPC. However, as per observation of our own Hon'ble High Court of Delhi in the above mentioned case, there is evidence against accused Pawan for the commission of offence punishable u/s 325 IPC. So, I, therefore, hold accused Pawan guilty for the commission of offence punishable u/s 325 IPC and convict them thereunder.
Announced in the open Court on 28.07.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ Special Judge(NDPS) Dwarka Courts, New Delhi State Vs. Pawan FIR no.440/08 Page No. 16 of 19 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS) DWARKA COURTS, NEW DELHI SC No.21/1/12 FIR No.440/08 U/s 308 IPC PS Dabri State Vs. Pawan S/o Sh Jagmal Singh R/o F65B Vishwash Park Rajapuri, Delhi ........ Accused ORDER ON THE POINT OF SENTENCE Accused Pawan has been held guilty for the commission of offence punishable u/s 325 IPC and convicted thereunder vide Judgment dated 28.07.2012.
2. I have heard the Ld. counsel for the accused as well as accused/convicts on the point of sentence. During the course of arguments it has been submitted on behalf of the convict Pawan that he is aged about 46 years. He is married and his wife is on her State Vs. Pawan FIR no.440/08 Page No. 17 of 19 family way at present. He has 70 years old ailing mother. It has further been submitted that he is the first offender. There is no other case registered against him in any court of law nor he has been convicted earlier. He is only the bread earner in his family and entire family is dependent upon him. He is in JC in this case since 21.05.2012 as he was taken into custody after issuance of NBW due to his nonappearance in the court. It is further submitted that the family has no other source of income. Ld.counsel states that convict belongs to very poor family and he has burden on his shoulders as he is only the earning member in his family. He undertake to maintain peace and be of good behaviour if he is released on probation. Ld.counsel has submitted that benefit of probation may be given to the convict.
3. In consideration of the submissions made by ld.defence counsels on behalf of the convict and in the facts and circumstances of the present case, the accused/convict has not been involved or engaged in any other criminal proceedings, any activities and case & as per his version he undertake to maintain and keep peace and be of good behaviour. He is the first offender. So, I feel it to give the benefit of probation to the convict in this case. Therefore, convict Pawan is given the benefit of State Vs. Pawan FIR no.440/08 Page No. 18 of 19 probation. He be released on probation on his entering into bonds in the sum of Rs.5000/ with one surety in the like amount, to appear and receive the sentence as and when he is called upon during the period of one year from the date of entering into the bond and in the meantime he shall keep peace and be of good behaviour u/s 325 IPC. Copy of judgment and copy of order on the point of sentence be given to the convict free of cost. File be consigned to record room.
Announced in the open Court on 01.08.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ Special Judge(NDPS) Dwarka Courts, New Delhi State Vs. Pawan FIR no.440/08 Page No. 19 of 19 State Vs. Pawan FIR no.440/08 Page No. 20 of 19