Delhi District Court
State vs Sanjay Kumar & Others//Fir No.500/08, on 31 January, 2013
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.63/09.
FIR No.500/08.
PSNARELA.
U/S.308/323/34 IPC.
STATE
VERSUS
1. SURESH KUMAR @ BHONDU S/O. GOPI RAM
R/O. GALI NO.26B, SWATANTRA NAGAR,
NARELA, DELHI.
2. SANGEETA W/O. SANJAY, R/O. GALI NO.26B,
SWATANTRA NAGAR, NARELA, DELHI.
3. KRISHNA W/O. RAMESH @ GANDHI,
GALI NO.26B, SWATANTRA NAGAR, NARELA,
DELHI.
4. ANJALI DEVI W/O. SURESH KUMAR, R/O. GALI NO.26B,
SWATANTRA NAGAR, NARELA, DELHI.
ORDER ON SENTENCE
31.01.2013
Present: Shri A.K. Srivastava, ld. Substitute Addl. PP for the State.
Convict Suresh Kumar @ Bhondu is in JC.
State vs Sanjay Kumar & Others//FIR NO.500/08,
PSNARELA, U/S.308/323/34 IPC 1
2
Convicts Sangeeta, Krishna and Anjali are on bail.
Shri Vijay Khanna, ld. Counsel for all the convicts.
1. It is submitted by ld. Counsel for the convicts that Vide
judgment dated 29.01.2013, convict Suresh Kumar @ Bhondu was
convicted for offence u/s. 308 IPC and whereas convicts Sangeeta,
Anjali and Krishna were convicted for offence punishable u/s. 323/34
IPC.
2. It is submitted by ld. Counsel for convicts that, convict
Suresh Kumar @ Bhondu is a young man of years of age. He has
old aged parents to look after. He is not a previous convict neither he
is involved previously in any crime. He is only bread winner of his
family. A lenient view may kindly be taken.
3. It is further submitted by ld. Counsel for convict
Sangeeta is aged about 24 years and she is married and having two
children of aged 4 years and 1½ years. She has no previous
involvement in any criminal case. A lenient view may kindly be taken.
4. It is further submitted ld. Counsel for the convict Anjali
that she is aged about 21 years and she is married and having three
children aged 6 years, 2 years and 8 months. She has no previous
involvement in any criminal case. A lenient view may kindly be taken.
State vs Sanjay Kumar & Others//FIR NO.500/08,
PSNARELA, U/S.308/323/34 IPC 2
3
5. Ld. Counsel for the convict Krishna submitted that she
is aged about 52 years and she is married and having four children
namely Sanjay, Suman, Pawan and Rajesh aged 25 years, 22 years,
21 years and 17 years. She has no previous involvement in any
criminal case. A lenient view may kindly be taken.
6. Ld. Counsel for the convicts submit that they have also
compromised the matter with the complainant/injured Amar Singh,
and further submits that they are ready to pay any amount as
compensation to the complainant/ injured to compensate him for
his injury, pain and agony, therefore, lenient view may kindly be
taken.
7. On the other hand, ld. Substitute Addl. PP for the State
submits that convict Suresh Kumar @ Bhondu has attempted to
commit culpable homicide amounting to murder of injured Amar
Singh by giving brick blow on his temporal region, hence,
considering the gravity of the offence, convict Suresh Kumar @
Bhondu does not deserve any leniency.
8. I have considered the arguments and also heard the
submissions of complainant/injured Amar Singh, who submits that he
has forgiven the convicts and further submits that now they are living
State vs Sanjay Kumar & Others//FIR NO.500/08,
PSNARELA, U/S.308/323/34 IPC 3
4
peacefully being neighbourer and he has no objection in case lenient
view may be taken against convicts.
9. The convict Suresh @ Bhondu had given brick blow on
the head of complainant/ injured Amar Singh causing fracture on his
right temporal bone. Thus, he has attempted to commit culpable
homicide. This offence is very grave. But, the complainant and
convicts are neighbourer and now living peacefully since 2008 and
there was no quarrel between them after that. The complainant has
compromised and forgiven the convict Suresh @ Bhondu and the
fact that he remained in JC for 46 days i.e. from 08.11.2008 to
24.12.2008. Therefore, in order to maintain peace and harmony and
considering the facts stated above, I take lenient view and sentence
the convict Suresh Kumar @ Bhondu for the period already
undergone by him and imposed a fine of Rs.10,000/ in default of
payment of fine six months SI.
10. The convicts Sangeeta, Krishna and Anjali have been
convicted for offence u/s. 323/34 IPC. Considering the said facts I
only sentenced them for fine of Rs.1000/ each, in default of
payment of fine one month SI.
11. The convict Suresh Kumar @ Bhondu be released from
State vs Sanjay Kumar & Others//FIR NO.500/08,
PSNARELA, U/S.308/323/34 IPC 4
5
JC forthwith if not required in any other case. Copy of the judgment
and that of order on sentence be given to the convicts today itself.
However, they they are directed to furnish personal bond and surety
bond of Rs.10,000/ each in compliance of provisions of Section
437A Cr.P.C. within 15 days.
12. Case properties confiscated to the State. Copy of
Judgment and that of order on sentence be given to the convicts.
File be consigned to record room. File be consigned to record room.
Announced in the open court (Sanjeev Kumar)
On 31.01.2013 Addl. Sessions Judge
Rohini Courts: Delhi.
State vs Sanjay Kumar & Others//FIR NO.500/08,
PSNARELA, U/S.308/323/34 IPC 5
6
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.63/09.
FIR No.500/08.
PSNARELA.
U/S.308/323/34 IPC.
STATE
VERSUS
1. SANJAY KUMAR S/O. RAMESH @ GANDHI
2. SURESH KUMAR @ BHONDU S/O. GOPI RAM
3. SANGEETA W/O. SANJAY
4. KRISHNA W/O. RAMESH @ GANDHI,
5. ANJALI DEVI W/O. SURESH KUMAR,
All R/O. GALI NO.26B,
SWATANTRA NAGAR, NARELA, DELHI.
Date of Institution in this Court :20.05.2009
Date of Arguments:05.01.2013
Date of Judgment :29.01.2013
JUDGMENT:
1. Brief facts of the prosecution are that on 08.11.2008, DD State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 6 7 No.26A was recorded in PS Narela, regarding the quarrel in Gali No. 26B, Swatantra Nagar, Narela, Delhi. The said DD was marked to ASI Ved Prakash, who went to the spot and found beat constable Ct. Dinkar Kutti there. PCR Van (Libra6) also reached at the spot in which injured were sitting. Thereafter, he reached at the hospital and collected the MLC of the injured Amar Singh on which doctor mentioned, patient unfit for statement. He also collected the MLC of Atro Devi and Poonam. He recorded the statement of injured Poonam, in which she had stated that, "Today i.e. 08.11.2008 at about 6.35 pm, her younger brother Deepak was called by their neighbourer Suresh Kumar and Sanjay and they slapped him and, therefore, his brother came to the house and at that time Sanjay and Suresh were standing outside their house and abusing them. At that time her father came out and asked them, 'what is the matter', on which Suresh gave brick blow on the head of her father. On seeing this her mother and she also came out to save her father. But they also gave beating to them. In the meanwhile, Anjali w/o. Suresh Kumar and Sangeeta w/o. Sanjay also reached there and gave them beating by bricks and stones. ASI Ved Prakash made endorsement on the said statement and prepared rukka and gave to Ct. Dinkar for State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 7 8 registration of FIR, who got the FIR No. 500/08 registered u/s. 308/323/34 IPC. Thereafter, ASI Ved Prakash went to the spot and prepared the site plan and arrested accused Suresh Kumar and seized one half brick at the instance of accused Suresh from the spot and seized. He recorded statement of Deepak. On 09.11.2008 he arrested accused Sanjay Kumar at the instance of Deepak and on 14.12.2008 he arrested accused Sangeeta, Anjali and Krishna. He collected the opinion on the MLC of the injured. He recorded statement of witnesses time to time during investigation. Thereafter, on completion investigations, he prepared the chargesheet and filed before the court u/s. 308/323/34 IPC against the accused persons.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 06.10.2009, charges under Section 308/323/34 IPC was framed against accused persons, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as Eleven witnesses i.e. PW1 is the complainant/injured Poonam, PW2 Amar Singh and PW5 Smt. Atro Devi are also the injured persons, State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 8 9 PW3 is WCT. Savita who filled the PCR Form Ex.PW3/A, PW4 HC Ashok Singh is duty officer and recorded FIR No.500/08 Ex.PW4/A and made endorsement on the rukka as Ex.PW4/B and he also recorded the DD No.26A and proved the same as Ex.PW4/C, PW6 Deepak is an eyewitness, PW7 Dr. Rajesh Kumar who prepared the MLC of injured Amar Singh and proved the same as Ex.PW7/A, he also gave his opinion on the MLC and proved the opinion as Ex.PW7/B and he also prepared the MLC of injured Poonam as Ex.PW7/C and that of injured Atro Devi as Ex.PW7/D. PW8ASI Ved Prakash is the IO. PW9 HC Virender Kumar is the MHC(M), PW10 Ct. Dinkar who participated in the investigations with the IO, PW11 Dr. P.N. Pandey who proved the medical treatment documents of LNJP Hospital with regard to the injured Amar Singh.
5. Besides this, prosecution has proved following documents i.e. Discharge Summary of patient Amar Singh as Ex.PW7/B, OPD Ticket of patient Amar Singh as Ex.PW11/C. Audiological Assessment Chart of patient Amar Singh as Ex.PW11/B, Case history sheet of patient Amar Singh as Ex.PW11/A, PCR formI as Ex.PW3/A, Complaint made by Poonam as Ex.PW1/A and Ex.PW8/A, FIR as Ex.PW4/A and endorsement on State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 9 10 the rukka as Ex.PW4/B, site plan of the spot as Ex.PW6/A, DD No. 26A with regard to receiving the PCR call as Ex.PW4/C, MLC of injured Poonam as Ex.PW7/C, MLC of injured Atro Devi as Ex.PW7/D, MLC of Amar Singh as Ex.PW7/A from SRHC Hospital, disclosure statement of accused Suresh Kumar as Ex.PW8/B, seizure memo of brick from accused Suresh Kumar as Ex.PW6/B, Arrest memo of accused Suresh Kumar @ Bhondu as Ex.PW6/E, Arrest memo of accused Sanjay Kumar as Ex.PW6/C, Arrest memo of accused Sangeeta as Ex.PW1/B, Arrest memo of accused Anjali as Ex.PW1/C, personal search memo of accused Suresh and Sanjay Kumar as Ex.PW6/F and Ex.PW6/D respectively.
6. Thereafter statement of accused persons u/s. 313 Cr.P.C. recorded in which they have denied the all the incriminating evidence put to them and they denied to lead any evidence in their defence.
7. Ld. Addl. PP for the State has argued that from the testimony of PW1, PW2, PW5 and PW6 it is proved that accused Suresh @ Bhondu and accused Sanjay Kumar gave brick blow on the head of deceased and caused life threatening injury to him. Whereas other accused pelted stones on PW2, PW5 & PW6 and thus, they all are State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 10 11 liable to convict for offence u/s.308 IPC for causing hurt to Amar Singh and that of Section 323 IPC for causing hurt to PW1 Poonam and PW5 Smt. Atro Devi.
8. On the other hand, ld. Defence counsel has argued that there are number of contradictions and improvements in the statement of PW1, PW2, PW5 & PW6, hence, their testimony cannot be relied upon, hence, accused persons are entitled to be acquitted.
9. I have heard arguments by Shri S.C. Sroai, ld. Addl. PP for the State and Shri Vijay Khanna, ld. Counsel for all the accused persons and gone through the record very carefully.
10. The star witness of the prosecution case is PW1 is Smt. Poonam, PW2 Amar Singh, PW5 Smt. Atro Devi and PW6 Deepak. PW1 Poonam in her testimony had deposed that on the day of th th incident might be 11 and month may be 8 and the year was 2008 at about 6.35 pm, she alongwith her parents, two brother namely Deepak @ Sopnu and Sanjay aged about 15 and 10 years respectively and three younger sisters were present in the house. At that time accused Suresh called her brother Deepak in the gali and slapped him. Deepak came back to the house and weeping, thereafter, accused persons Sanjay and Suresh started abusing from State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 11 12 outside from house, her father went to inquire about the matter from the accused, but both the accused Sanjay and Suresh gave brick blow on the head of her father. Accused Anjali wife of accused Suresh and Sangeeta wife of accused Sanjay and Pawan, brother of accused Sanjay and Krishna wife of Ramesh also started pelting stones on her, her father and her mother. Her father became unconscious, her mother was also lying in the pool of blood. She telephoned to the police on 100 number and police came and took her father and mother to the SRHC Hospital,Narela, Delhi. She had also accompanied them. Police recorded her statement Ex.PW1/A in the hospital. Police also arrested accused Anjali, Sangeeta and Krishna vide memos Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively. Ld. CPP with the permission of the court asked some leading questions from her and she admitted the suggestion that date of incident is 08.11.2008. she also admitted the suggestion that when her father came and asked accused persons why they were abusing then accused Suresh gave brick blow on the head of her father and when her mother tried to rescue her father they gave beating to her and her mother and her father with bricks and stones.
In her cross examination, she stated that she used to State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 12 13 reside in her parental house for the last about five years as she had been divorced. Accused persons are not her relative. No quarrel took place between them prior to the incident. She denied the suggestion that quarrel started on a trivial matter quarrel between the children. She stated that she does not know Sangeeta delivered a baby on 08.03.2009., She had stated that when she came out, accused Sanjay Kumar and Suresh Kumar were abusing her father, thereafter, accused gave brick blows upon her father. She had no time to react against the abusing by the accused persons. She denied the suggestion that her father was also having a brick in his hand at the time of incident and they also pelted brick upon accused persons. She denied the suggestion that the quarrel was between the family members of both the families and no family member were present from either side at the time of incident. She denied the suggestion that accused persons did not caused any hurt to her, her father and her mother. She also denied the suggestion that she did not see the incident.
11. PW2 Amar Singh had deposed that on 08.11.2008 he was present with his family in his house. His son was called by accused persons Sanjay Kumar and Suresh Kumar. Accused State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 13 14 persons Sanjay Kumar and Suresh have slapped Deepak and Deepak came back to his house and told the facts. He came out outside and saw that accused Sanjay Kumar and Suresh Kumar were abusing in filthy language on this he asked them why they were abusing, on this accused persons Suresh gave a brick on his head and then he became unconscious. He regained consciousness in Trauma Centre. ld. Addl. PP with the permission of the court put some leading questions to him, but he stated that he does not know whether accused Krishna and Pawan also came there when accused persons Sanjay Kumar and Suresh were abusing him. He further stated that he does not know whether his wife and daughter Poonam came there to save him then accused persons Krishna and Pawan gave beating toi them.
In his cross examination by ld. Defence counsel he denied the suggestion that he has been tutored by the IO before deposing in the court. He denied the suggestion that he became angry with accused Deepak when he came back at home and told about that he was slapped by accused persons Sanjay Kumar and Suresh Kumar. He denied the suggestion that he is a patient of BP and Diabetic. He admitted the suggestion that he had some hearing State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 14 15 problem, but volunteered that he has pain after the incident as he received the injuries near his right ear. He denied the suggestion that he had fallen down on his own on hearing the abuses. He volunteered that he fell down after sustaining the brick blows on his head. He also denied the suggestion that he abused accused Sanjay & Suresh and threatened them when accused Sanjay Kumar and Suresh Kumar were abusing him. He denied the suggestion tha the has compromised the matter with the accused persons and received the amounts. He admitted the suggestion that Ramesh Gandhi had promised to pay some compensation, but nothing was paid to him.
12. PW5 Smt. Atro Devi had also deposed that on 08.11.2008 at about 6.30pm accused Suresh had called her son Deepak, outside the home and slapped him. Thereafter, Deepak returned back to the house and explained her and her husband about the said fact. Thereafter, she alongwith her husband and Deepak reached at the gali and her husband asked accused persons why they had slapped her son, thereafter, both the accused persons given brick blows on the head of her husband. In the meanwhile, accused persons Sangeeta, Anjali and Krishna reached there and thereafter they had also pelted stones upon her. She became State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 15 16 unconscious and regained her consciousness at SRHC Hospital. She received 910 stitches on her head. She correctly identified the accused persons.
In her cross examination, she stated that she had gone for labour work on the day of incident, but she does not remember the time, when she returned back from her labour work and again stated that she does not remember whether she had gone for labour work on that day or not. She further stated that there was no fix time for her labour work. She usually prepare food around 6.30pm. She further stated that there was no previous enmity between them and accused persons and they were having visiting terms. She denied the suggestion that she had thrown bricks upon the accused persons.
13. PW6 Deepak stated that he used to work as deily wages labourer alongwith his father. On 08.11.2008 at about 6.30pm, he was present at his house, accused Suresh @ Bhondu had called him from his house. He came outside his house and accused Suresh @ Bhondu and Sanjay met him there and Suresh had slapped 23 times on his face. His younger brother Sanjay, who was with him at that time, returned back to the house. Thereafter, his father Amar State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 16 17 Singh, his mother Smt. Atro Devi came outside of the house. Accused persons Suresh Kumar and Sanjay Kumar had given brick blow on them. His father became unconscious. In the meanwhile, his sister came out from the house thereafter Sangeeta gave brick blow on the head of his mother who received 9 stitches on her head. He further stated that his sister call the police and police took them to the hospital. Police prepared the site plan at his instance Ex.PW6/A and seized the brick and brick piece from the spot, which was seized vide memo Ex.PW6/B. Accused Sanjay was arrested in his presence vide memo Ex.PW6/C and Suresh was also arrested vide memo Ex.PW6/E. He had correctly identified by the accused persons and also identified the brick and one brick and half brick and same are collectively exhibited as Ex.P1.
In his cross examination by ld. Counsel for accused persons he had stated that he had not read the file before appearing in the court. He admitted that accused persons Sanjay Kumar and Suresh Kumar were having talking terms with him. They slapped him without any reason. He did not go back to his house when slapped. In the meanwhile his parents reached there. At that time, accused persons were still beating him. The distance between his house and State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 17 18 spot is about 20 steps. He denied the suggestion that his sister had abused the accused persons on seeing beating to him. He further denied the suggestion that his parents and sister came to rescue him. He stated that brick were lying at 20 steps away from the spot. He stated that there was slopping in front of his house and street in front of his house. He denied the suggestion that accused persons have been falsely implicated in this case due to previous enmity or that his parents had suffered injuries due to falling on the ground and the injuries were not caused by the accused persons.
14. On appreciation of testimony of PW2 Amar Singh, it is proved that when he came out of his house after hearing complaint of his son Deepak that he was slapped by accused persons Sanjay and Suresh and inquired from accused persons Sanjay Kumar and Suresh, why they were abusing then accused Suresh gave brick blow on his head due to which he became unconscious. On perusal of crossexamination of PW2, it is evident that counsel for accused has given suggestion to PW2 "since accused Sanjay and Suresh abused him, therefore, he threatened them", which prove presence of both accused persons Suresh and Sanjay at the spot and also prove quarrel between accused persons and PW2. Further, the State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 18 19 counsel for accused persons have given suggestion that PW2 has compromised the matter with Ramesh Gandhi father of accused Sanjay and Suresh and also shown document Mark PW2/DA, though, PW2 has denied the suggestion, but he admitted that Ramesh Gandhi had promised him some compensation, but nothing was paid, which proved that accused persons were involved in quarrel, otherwise, why they would have entered into compromise or agreed to pay compensation. PW2 had specifically denied that accused persons have not inflicted injury on him. Hence, nothing has come out in the cross examination of the PW2, which could dent his testimony that accused Suresh @ Bhondu has given brick blow on his head.
15. PW6 Deepak had also testified that on 08.11.2008 at about 6.30pm, he was called by the accused Suresh @ Bhondu, when he came out and met Suresh and Sanjay they slapped him twothree times. His brother Sanjay was with him and who returned back to the house. Thereafter, his father, mother came at spot. Accused Suresh and Sanjay had given brick blow upon his father.
PW5 Smt. Atro Devi and PW1 has also Poonam has also corroborated the testimony of PW6 Deepak and had testified State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 19 20 that accused Sanjay and Suresh gave brick blow on the head of PW2 Amar Singh.
16. Undubtedly, as pointed out by Ld. Counsel for the accused persons there are some contradictions in the statement of PW1, PW2, PW5 & PW6. Whereas, PW2 had stated that only accused Suresh had given brick blow to him, but PW2, PW5 and PW6 have stated that both accused persons Suresh @ Bhondu and Sanjay have given brick blow, but in my view merely on this ground their testimony cannot be discarded. PW1 in her cross examination has explained that first accused Suresh gave a brick blow to her father and thereafter accused Sanjay gave brick blow. PW6 has also stated in the cross examination that after accused Sanjay gave brick blow and his father fell down. Hence, from the testimony of PW1, PW2, PW5 & PW6 it is proved beyond reasonable doubt that accused Suresh gave brick blow on the head of PW2 Amar Singh. Though, there is contradictory view regarding giving brick blow by the accused Sanjay, it cannot be ruled out that after accused Suresh, accused Sanjay also given brick blow to him, PW2 could not notice as he might not be in complete senses after first blow by accused Suresh @ Bhondu, hence, I do not find on the ground to State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 20 21 discard the testimonies of PW1, PW2, PW5 & PW6 merely on the ground that, there is a contradictions in their testimonies regarding the brick blow given by accused Sanjay. However, since PW2 had not deposed that accused Sanjay had given brick blow to him, I give benefit of doubt to accused Sanjay and held that accused Sanjay had not caused any injury to PW2 Amar Singh. However, as far as accused Suresh @ Bhondu is concerned in my view since all the aforesaid four witnesses have categorically deposed that he had given brick blow to PW2's head, I held that it is proved beyond reasonable that accused Suresh @ Bhondu had caused injuries to PW2.
17. Though, all the accused persons have been charged for offence u/s. 308/34 IPC, but in my view the evidence of PW1, PW2, PW5 and PW6 proved that accused i.e. Sangeeta, Krishna and Anjali had reached later on at the spot and had no role in causing injury to PW2. As stated above, PW2 has specifically deposed that accused Suresh @ Bhondu gave brick blow to him. Moreover, from the testimony of PW1, PW2, PW5 and PW6 it is evident that, quarrel was not preplanned. But accused Suresh gave brick blow when PW2 asked why he is abusing. Hence, in my view giving brick blow State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 21 22 to PW2 Amar Singh is an individual act of accused Suresh @ Bhondu. It is not proved that other accused persons also shared common intention when accused Suresh @ Bhondu hit PW2 with brick. Hence, in my view, the other accused persons cannot be convicted for offence u/s. 308 IPC for causing injury to PW2 Amar Singh with aid of section 34 IPC.
18. Since it is proved beyond reasonable doubt that, accused Suresh @ Bhondu gave brick blow on the head of PW2 Amar Singh. Now it is to be seen whether the act of the accusd falls in the ambit of attempt to commit culpable homicide, not ammounting to murder. As per discharge summary of Shushruta Trauma Centre Ex.PW1/E patient Amar Singh had fracture on his right posterior temporal bone. As per discharge summary of Shushurata Trauma Centre Ex.PW1/E, patient/PW2 Amar Singh had fracture on right posterior temporal bone with a small haemorrhage contusion in right posterior lobe and as per opinion of Dr. P.N. Pandey (PW11) due to fracture in right temporal lobe, it was dangerous to life. PW11 had deposed that discharge summary was prepared by senior doctor under his supervision. There is no ground to disbelieve the discharge summary which was prepared on the basis of treatment papers. State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 22 23 PW11 Dr. P.N.Pandey specifically deposed that C.T. Scan of brain was performed and fracture was revealed. Since accused Suresh @ Bhondu had caused fracture on his right temporal bone which was the vital part of the body. The accused had caused the said injury intentionally and it cannot be presumed that when a person caused injury on a vital part of body like head with weapn like brick, he would have knowledge that he could cause death of the said person. Therefore, taking into account all the circumstances, I held that accused Suresh @ Bhondu though might not have intention to cause the death but certainly have knowledge that, death can be caused by his act. Hence, I held that prosecution has been able to prove beyond reasonable doubt that accused Suresh Kumar @ Bhondu had caused injuries to PW2 Amar Singh under such circumstances that if his death had been occurred, accused would have been guilty of attempt to culpable homicide punishable u/s. 308 IPC. However, I held that prosecution has been failed to prove that Sanjay Kumar, Sangeeta, Anjali and Krishna share their common intention when accused Suresh Kumar @ Bhondu hit brick blow.
19. Further, accused persons have also been charged u/s.
323 IPC for causing hurt to PW1 Poonam, PW5 Atro Devi. PW1 State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 23 24 Poonam, PW5 Atro Devi and PW6 Deepak have testified that accused persons Sangeeta, Anjali and Krishna pelted stones on them. PW5 Smt. Atro Devi and PW1 Poonam have received injury.
20. On perusal of MLC of PW1 Poonam, it is evident that she has small haematoma over right parietal region and one small abrasion on right leg. Whereas MLC of Atro Devi Ex.PW7/D also proved that she has clean lacerated wound of 3X1cm on occipital region and injuries are blunt in nature, which corroborated upon them as these kind of injuries could be caused by stone. Hence, I find testimony of PW1, PW5 and PW6 trusworthy and reliable that the PW1 Poonam and PW5 Atro Devi have received injuries from the stones pelted by accused accused persons Sangeeta, Anjali and Krishna. The testimony of the PWs cannot be discharged merely because accused Anjali was having five months pregnanancy, when the incident had taken place or that accused Sangeeta had small children, as contended by ld. Defence counsel. Therefore, while relying upon testimony of PW1, PW5 & PW6, I held that prosecution has been able to prove beyond reasonable doubts that, accused Sangeeta, Krishna and Anjali have caused simple hurt to PW1 Poonam and PW5 Atro Devi which is punishable u/s. 323 IPC read State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 24 25 with 34 IPC for causing hurt to PW1 Poonam and PW5 Atro Devi. Since no PWs had sated that accused Sanjay and Suresh pelted stones on PW1 Poonam and PW5 Atro Devi, hence, I held that prosecution has failed to prove beyond reasonable doubt both the accused persons Sanjay Kumar and Suresh Kumar @ Bhondu for offence punishable u/s. 323/34 IPC.
21. In view of the aforesaid discussions, I convict accused Suresh Kumar @ Bhondu for offence punishable u/s. 308 IPC and acquit all other accused persons from the offence u/s. 308/34 IPC. Further, accused persons Sangeeta, Anjali and Krishan stand convicted for offence punishable u/s. 323/34 IPC, while accused Sanjay Kumar and Suresh Kumar @ Bhondu stand acquitted for the said offence.
Announced in the open court (Sanjeev Kumar)
On 29.01.2013 Addl. Sessions Judge01
(Outer):Rohini Courts: Delhi.
State vs Sanjay Kumar & Others//FIR NO.500/08, PSNARELA, U/S.308/323/34 IPC 25