Delhi District Court
Civil Suit For Civil Judge/239/1998 on 21 May, 2013
IN THE COURT OF NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1. FIR No. : 239/98
2. Date of Offence : 16.05.1998
3. Name of the complainant : Vijay Kumar
4. Name, parentage and Address
of accused : Laxman
S/o Sh. Leela Ram
R/o 10800, Gali No. 5, 100
quarters, China Market, Karol
Bagh, Delhi.
5. Offences complained of : Section 394 IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 06.05.2013
8. Sentence or final order : Accused is convicted u/s. 324 IPC.
9. Date of order : 21.05.2013
JUDGMENT
1. The allegations against the accused is that on 16.05.1998 at 11.30 pm in gali no. 6, Sant Nagar, near Gate of Ravidass Marg, Delhi, the accused had voluntarily caused hurt with knife to the complainant Vijay Kumar while attempting to commit robbery.
2. After investigation, charge-sheet was filed against the accused for the offence punishable u/s. 394/397 of the Indian Penal Code (for short FIR No. 239/98 PS: Prasad Nagar State v. Laxman 1/10 'IPC'). The copies of charge-sheet were supplied to the accused in compliance of Section 207 Cr. P. C. Thereafter, the case was committed to the Sessions Court. Vide order dated 20.02.1999, the Sessions Court ordered that as the knife was not recovered in the present case, prima facie case u/s. 394 IPC is made out and the file was remanded back to this Court. Thereafter, charge was framed against the accused under Section 394 IPC to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 6 witnesses. PW-1 is HC Bhanwar Singh. He tendered FIR, copy of which is Ex. PW-1/A and endorsement on rukka vide Ex. PW-1/B. PW-1 [2] PW Vijay Kumar (complainant). He deposed that on 17.05.1998 at around 11.00-11.15 pm, he was coming from the bus stop; when he reached near Tikona Park, accused came to him and asked money for liquor and when he refused to pay, he (accused) took out a knife and made two marks on his chest with knife; when he was trying to save himself, he (accused) also received injury on his cheek from the knife as he had held the accused from both his hands; thereafter, the accused started running; he apprehended the accused at Pusa Road. He further deposed that police officials were also coming in bullet motorcycle; he handed over the accused to the police. His statement Ex. PW-1/A was recorded by the police. He was taken to the spot by the police, but the knife could not be recovered from there. He tendered arrest memo and personal search memo vide Ex. PW-1/B and PW-1/C respectively. His shirt and vest also received cut marks and blood also came out but his blood stained clothes were not seized by the police. His medical FIR No. 239/98 PS: Prasad Nagar State v. Laxman 2/10 examination was conducted in Lady Harding Hospital. At the first time of his examination conducted on 14.11.2007, the accused did not cross- examine him (PW Vijay Kumar). Later on, he was recalled for cross- examination by the order of the Court dated 27.11.2012 and thereafter, he was cross-examined by the accused.
PW-2 is HC Raj Singh. He stated that on 16.05.1998, he alongwith Ct. Pratap Singh were on patrolling duty on motorcycle which was being driven by Ct. Pratap; at about 11:40 pm, when they reached at Ganga Mandir Marg, they saw that accused Laxman and complainant Vijay Kumar were scuffling with each other. Both had received injuries. On enquiry, complainant told him that accused had demanded money from him on the point of knife and subsequently, he stabbed on his chest at left side. He further told that the accused started running from there, he chased him and apprehended him at Ganga Mandir Marg. He (witness) informed to PS Prasad Nagar. SI Ashok Saini alongwith Ct. reached to them and they handed over the accused and the complainant to the IO. Thereafter, they left for further patrolling. PW-3 is Insp. Ashok Saini. He stated that on 16.05.1998, on receipt of DD No. 20A Ex. PW-3/A at about 11:45 pm, he alongwith Ct. Braham Prakash reached at Ganga Mandir Marg. HC Raj Singh (PW-2) alongwith two injured persons namely Vijay and accused Laxman met him there. Thereafter, he recorded the statement of the complainant and got the present case registered through Ct. Braham Prakash. He tendered site plan Ex. PW-3/C. FIR No. 239/98 PS: Prasad Nagar State v. Laxman 3/10 PW-4 is HC Braham Prakash. He submitted that on 16-17.05.1998, on receipt of DD No. 20A, he alongwith SI Ashok Saini (PW-3) reached at the spot where PW-2 and Ct. Pratap met them there; accused and complainant were also present on the spot; Ct. Satender was called on the spot from the PS and thereafter, he alongwith Ct. Satender took accused and complainant to the hospital for their medical examination. After medical examination of the accused and complainant, they came back at the spot. Thereafter, IO got the present case registered through him. PW-5 is Dr. Harvinder Kaur. She tendered MLC of the complainant as Ex. PW-5/A and of the accused as Ex. PW-5/B.
4. After conclusion of prosecution evidence, statement of accused was recorded wherein he claimed to be innocent and denied the allegations against him. He stated that on the impugned day, he had a scuffle with PW-1, Vijay Kumar, which had been initiated by him (PW-1) only; he did not have any knife with him at that time; Vijay Kumar himself broke a bottle and hit him with that bottle; he caused injury to himself too by that bottle; he did not cause any injury to him; since he had received injuries and his shirt became blood stained, he wished to go to his house for getting medical aid; in the meantime, PW-1 caught him and produced before the police. He did not opt to lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
FIR No. 239/98PS: Prasad Nagar State v. Laxman 4/10
6. Ld. Defence Counsel has argued that the investigating officer could not recover the weapon i.e. knife allegedly used in commission of offence. He did not even seize blood stained clothes of the complainant. He did not join any independent witness into the investigation of the present case. Further, the complainant and the accused were neighours as PW-1 was resident of gali no. 6; while accused was resident of gali no.
5. Further, the prosecution did not examine Ct. Partap, too, who had been accompanying with HC Raj Singh (PW-2) and Ct. Satender who alongwith HC Braham Prakash (PW-4) took the injured to the hospital for medical examination. Further, there is material contradiction in the testimony of PW-1 (Vijay Kumar) and PW-2. PW-2 stated that when he reached at the spot, he found the complainant and accused were scuffling with each other; while PW-1 stated that the accused started running; he apprehended the accused at Pusa Road; the police officials came there and he handed over the accused to the police. Furthermore, PW-1 deposed about the date of incident as 17.05.1998 instead of 16.05.1998. In this manner, the prosecution has failed to prove its case against the accused beyond reasonable doubt.
7. Ld. APP has argued that if the investigating officer did not seize the clothes of PW-1; then due to his negligence, testimony of the complainant does not get washed off. Further, public witnesses might not have been available at 11.00-11.15 pm when the impugned incident had occurred. Hence, no independent witness could have been joined into the investigation of the present case. Further, in the MLC of injured Ex. PW-5/A, the observation regarding kind of weapon was made that injury was caused by sharp instrument. Hence, the said FIR No. 239/98 PS: Prasad Nagar State v. Laxman 5/10 observation corroborated the version of the complainant that accused caused injuries to him with knife. Further, injuries to accused have been explained by the complainant (PW-1). Furthermore, the accused did not lead defence evidence and he did not even examine himself as a witness to prove his defence forwarded during his statement recorded u/s. 313 Cr.P.C. Hence, the prosecution has proved its case against the accused beyond reasonable doubt.
8. Now, it is clarified that although during prosecution evidence two witnesses HC Bhanwar Singh and complainant Vijay Kumar had been numbered as PW-1. However, since the testimony of HC Bhanwar Singh is not material in nature; hence, in the following part of judgment, the testimony of PW Vijay Kumar be considered as PW-1.
9. The prosecution has examined only one material witness who is the complainant/injured. It is pertinent to note that accused (during his statement recorded u/s. 313 Cr.P.C.) had not disputed the scuffle between him and the complainant on the impugned day. Although he has stated that the scuffle was initiated by the complainant himself and he had caused injuries to him (accused) and to himself (complainant). Although in his statement Ex. PW-1/A recorded by the police, the complainant (PW-1) had stated that when he refused to give money to accused, the accused tried to take out the money from his pocket forcibly at point of knife; when he objected, then accused stabbed him forcefully on the left side of his chest. But, during his deposition before the Court, he deposed in his examination in chief that when he refused to pay the money, the accused took out a knife and made two marks on FIR No. 239/98 PS: Prasad Nagar State v. Laxman 6/10 his chest with knife. Both the above-mentioned versions of the complainant i.e. before the police and the Court are not consistent in the material particulars.
10. Now, it is required to examine as to whether the ingredients of offence of attempt to robbery have been proved by the prosecution against the accused beyond reasonable doubt. Firstly, the Court has already observed about the inconsistency between two versions of the complainant. Secondly, the argument of ld. defence counsel that complainant and accused were neighbours finds favour from the record as the complainant has been shown as resident of gali no. 6 and accused as resident of gali no. 5. Further, in both the MLCs of complainant Ex. PW-5/A and of accused Ex. PW-5/B, the observation had been made that 'smelling of alcohol'. Admittedly, the demand of money was made by accused for liquor specifically. PW-1 and accused were drunk at the impugned time and it appears that the accused asked money for having more liquor only and when scuffle ensued between him and the complainant on his demand, he stabbed him (PW-1) with knife. The testimony of PW-1 and the circumstances do not suggest that the accused wished to commit theft of the money carried by PW-1 with him at the point of knife. Hence, the important ingredient of offence of attempt to commit robbery i.e. voluntarily causing hurt to any person in order to commit the theft is missing.
11.At this stage, DD entry Ex. PW-3/A also becomes important piece of evidence. The said DD entry must have been recorded on the information given by PW-2 to PS Prasad Nagar. It is pertinent to note FIR No. 239/98 PS: Prasad Nagar State v. Laxman 7/10 that when he informed to PS Prasad Nagar; admittedly, he had come to know about the material particulars which had led to scuffle between the complainant and the accused. But, in the DD entry Ex. PW-3/A, it has been merely mentioned that two boys had got knife injuries and there is no averment to the effect that one person had attempted to rob other person. In this manner, the Court is of the view that the prosecution has failed to prove the ingredients of offence of attempt to commit robbery against the accused beyond reasonable doubt. However, it is required to examine as to whether accused is liable for causing hurt to the complainant with sharp edged weapon.
12.The complainant has categorically deposed that the accused caused injuries on his chest with knife. The accused took the defence during his statement recorded u/s. 313 Cr.P.C. that the complainant had caused injuries upon himself. But, he did not put his defence to PW-1 during his cross-examintion. Moreover, the accused did not examine any defence witness and not even examine himself to prove his defence. Hence, defence put forward by the accused is not acceptable. Further, if the investigating officer could not recover the knife used by the accused, the same does not wash off the testimony of PW-1 whereupon he had categorically deposed that accused made two marks on his chest with knife and the said version of PW-1 had been corroborated with his MLC Ex. PW-5/A whereupon the observation in respect of kind of weapon used had been given as the sharp instrument used. Moreover, PW-1 has remained consistent on this aspect during his cross-examination too.
FIR No. 239/98PS: Prasad Nagar State v. Laxman 8/10
13.PW-1 has categorically deposed that blood stained clothes were not seized by the police. No question was put to him on this aspect during his cross-examination. Furthermore, no explanation/clarification was sought by the accused from investigating officer (PW-3). Hence, this aspect does not create any doubt on the case of prosecution. Further, PW-3 (IO) has explained during his cross-examination that since it was late night time, hence, no public person was available there. In these circumstances, if the investigating officer was unable to join any independent witness due to non availability, then the same does not affect the case of the prosecution.
14.Further, no question was put to the investigating officer as to why he did not mention the name of Ct. Pratap Singh and Ct. Satender in the list of witnesses. Moreover, Raj Singh (PW-2) and HC Braham Prakash (PW-4) who had been accompanied by Ct. Pratap and Ct. Satender, respectively, were examined by the prosecution, but no suggestions were put to them contradicting their testimony on this aspect. The accused can not be allowed to raise any suspicion at the stage of final arguments. Further, so far as discrepancy in depicting the date of incident by PW-1, the accused himself has not disputed the occurrence of the impugned incident. Hence, the said discrepancy becomes immaterial. Further, so far as the contradiction in the testimony of PW-2 and PW-1 about the apprehension of accused is concerned; there is no material contradiction between their testimonies. Hence, it is proved that accused caused injuries to the complainant with knife.
FIR No. 239/98PS: Prasad Nagar State v. Laxman 9/10
15. Considering the above mentioned, prosecution has proved the ingredients of offence punishable under Section 324 of the Indian Penal Code against the accused beyond reasonable doubt. Hence, accused is held guilty for the offence punishable under Section 324 of the Indian Penal Code.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/21.05.2013
FIR No. 239/98
PS: Prasad Nagar
State v. Laxman 10/10