Delhi District Court
State vs . Krishan Gopal Etc. on 31 July, 2013
State Vs. Krishan Gopal etc.
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 04/2012
ID No. 02401R0027452012
FIR No. : 108/11
Police Station : Karol Bagh
Under Section : 323/325/308 IPC
State
Versus
1 KRISHAN GOPAL
S/o Sri Ram,
R/o 3752/18, Regar Pura,
Karol Bagh, New Delhi.
.........Accused No. 1.
2 Madhu
W/o Krishan Gopal
R/o 3752/18, Regar Pura,
Karol Bagh, New Delhi.
.........Accused No. 2.
Date of Institution : 09.01.2012
Date of Committal of case : 19.01.2012
Date of judgment reserved on : 17.07.2013
Date of judgment : 25.07.2013
SC No. 4/12 Page 1 of 16
State Vs. Krishan Gopal etc.
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Tarun Arora, Advocate, counsel for the both the
accused
J U D G M E N T :
1. Briefly stated facts of prosecution case are that on August 11, 2011 at about 5.45 PM, an intimation was received at police station Karol Bagh that a quarrel had taken place at 3352/66/18 Regarpura, Karol Bagh. The said information was recorded vide DD No. 16/A (Ex.PW2/A) and assigned to SI Dharmender. On reaching there, constable Habib and constable Arun also met at the place of occurrence. W/SI Neema was also called at the place of occurrence. Thereafter, injured parties were taken to Lady Harding Hospital. It was alleged that complainant Tulsi Das got recorded his statement (Ex.PW3/A) to SI Dharmender.
2 Complainant Tulsi Das in his statement alleged that he resided at first floor whereas his brother Krishan Gopal resided at fourth floor. At about 4.30 PM, his nephew Vinod came to his house and at that time he had consumed a little alcohol. It was alleged that his brother accused Krishan Gopal had started marpeet with Vinod, accordingly his wife Radha informed him on phone. It was alleged that when he reached his house, his brother Krishan Gopal had given 3-4 blows of iron rod on his head and broken his one tooth. It was alleged that when Vinod came down stairs, accused Krishan Gopal also assaulted him by iron rod and when his wife Radha intervened, he also assaulted her. It was alleged that he made a call to his sister Omwati at her office and when she reached there, accused Krishan Gopal and his wife Madhu started assaulting Omwati. On the statement of SC No. 4/12 Page 2 of 16 State Vs. Krishan Gopal etc. Tulsi Das an FIR for the offence punishable under Section 325/323/34 IPC was got registered. During investigation, Krishan Gopal and his wife Madhu were arrested and Section 308 IPC was also inserted.
3. After completing investigation, challan was filed against both the accused persons for the offence punishable under Section 323/325/308/34 IPC.
4. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on January 13, 2012. Thereafter, the case was assigned to this Court on January 19, 2012. Accordingly, case was registered as Sessions Case No. 04/2012.
5. Vide order dated February 13, 2013, a charge for the offence punishable under Section 308 IPC was framed against the accused Krishan Gopal whereas a separate charge for offence punishable under Section 323/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined as many as following 12 witnesses:-
PW1 HC Rakesh Kumar, duty officer, proved FIR.
PW2 ASI Chanchal, duty officer, proved DD No. 16A.
PW3 Tulsi Das, complainant.
PW4 Smt. Radha, wife of PW3.
PW5 Smt. Omwati, sister of PW3.
PW6 Vinod Kumar, nephew of PW3.
SC No. 4/12 Page 3 of 16
State Vs. Krishan Gopal etc.
PW7 SI Dharmender, investigating officer
PW8 ASI Iqbal Singh, formal witness.
PW9 Dr. Vijay Shankar Gupta, proved the X-ray report of
Omwati.
PW10 Dr. Gaurav Kochhar, proved the MLC of injured
PW11 Ct. Arun Kumar
PW12 Dr. Parvesh Mehra, proved the MLC Tulsi Das.
7. On culmination of prosecution evidence, both the accused persons were examined under Section 313 Cr. P.C. wherein they denied prosecution version and accused No. 1 submitted that he was coming down from the fourth floor and carrying his T.V. On the way, PW Vinod met him and he started giving beating to him by fist and leg blows. Thereafter, PW Tulsi Das was called by his wife by informing him on phone. Consequently, Tulsi Das also came there and he had taken out a sword from his house and he had given sword blows at his temple region. Thereafter, Tulsi Das and Vinod fled away and inflicted self injuries and implicated him and his wife. It was further submitted that the sword was snatched from Tulsi and the same was handed over to Mukesh Gautum son of her uncle and Raj Kumar his elder brother. Accused Madhu also took the same plea and further stated that Tulsi Das, his wife and Omwati used to quarrel with them on several occasions to pressurise them to vacate the ancestral house in which they are residing. In order to prove their innocence, they examined their daughter Kajal as DW1.
8. Learned counsel appearing for accused persons astutely contended that the accused persons have been falsely implicated by the complainant party due to the property dispute between them. It was further SC No. 4/12 Page 4 of 16 State Vs. Krishan Gopal etc. contended that two of the injured persons were under the influence of liquor at the time of alleged incident, thus, the possibility that they had sustained injury by falling under the influence of liquor cannot be ruled out. It was further contended that the witnesses examined by the prosecution are not trustworthy as they are relatives to each other and there are contradictions among their testimony. At last, it was contended that no weapon of offence was recovered from the accused persons.
9. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that since the witnesses sustained injury in the alleged incident, thus their presence cannot be doubted and there is no evidence to prove that they had sustained injury by falling under the influence of liquor or they inflicted injury themselves, thus, there is no reason to disbelieve their testimony. It was further contended that no doubt, there was previous enmity between the parties and this could be one of the reasons of the alleged incident.
10. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
11. Though prosecution has examined as many as 12 witnesses, yet prosecution case is based on the testimony of PW3, PW4 and PW6. As per prosecution version, all of them had sustained injury. Admittedly, all the said witnesses are relatives to each other and they are also related to the accused persons. It is admitted case of the prosecution that PW3 is the real brother of accused No.1 Krishan Gopal. Thus, both parties related to each other.
SC No. 4/12 Page 5 of 1612. PW4 Radha, wife of Tulsi Das (PW3) admitted in her cross- examination that they had dispute with the accused persons over the property. Though a suggestion was put to PW3 that he had falsely implicated the accused persons as he and his wife Radha (PW4) wanted to grab the property of their grand father but the same was categorically denied. The testimony of PW4 about the property dispute is corroborated by DW1 in her examination-in-chief by stating that PW3 and his family members used to quarrel with them to pressurize the accused party to vacate the house. Thus, from the deposition of PW3, PW4 and DW1, it becomes abundantly clear that the relations between both the parties were not cordial despite the fact that both parties related to each other. No doubt, the strain relations might be a ground to falsely implicate the accused persons in the instant case. But simultaneously strain relations might be a ground to the alleged incident, thus, mere fact that the relations between the parties were strained is not sufficient to discard the prosecution case as a whole.
13. Perusal of the testimony of injured persons revels that initially the quarrel had taken place with PW6 Vinod Kumar, nephew of PW3 but he did not support the prosecution case in any manner. PW6 in his examination-in-chief deposed that on August 18, 2011, he had visited the house of his maternal uncle Tulsi Das (PW3) and when he reached gali No. 18, his another maternal uncle Krishan Gopal (A-1) had slapped him. Thereafter, his mami Radha (PW4) raised an objection and took him upstairs to her house. He further deposed that after some time, his uncle Tulsi Das (PW3) reached there and he came to know that the quarrel had taken place between Tulsi Das (PW3) and Krishan Gopal (A-1). But despite that he did not know who assaulted him as he was in drunken SC No. 4/12 Page 6 of 16 State Vs. Krishan Gopal etc. condition. However, he testified that Tulsi Das (PW3) had sustained injury in his head and his two teeth were also broken. But deposed that he did not know how Tulsi Das had sustained injury. Thus, as per the deposition of PW 6, he did not know who caused injury to him and his uncle Tulsi Das. However, as per his testimony accused Krishan Gopal had given a slap to him. Thus, the testimony of PW6 is not much helpful to the prosecution to prove the culpability of accused persons.
14. PW 3 Tulsi Das is the star witness of the prosecution case. He in his examination-in-chief deposed that on August 11, 2011, he had received a call from his wife Radha (PW4) that a quarrel had taken place between his nephew Vinod (PW6) and his brother Krishan Gopal (A-1). Accordingly, he reached his house. He deposed that as soon as he reached his house, his brother i.e. Accused Krishan Gopal had given a blow of iron angle on his head. He further deposed that accused Krishan Gopal had given 3-4 blows of iron angle on his head, consequently, he fell down. He further deposed that when he fell down, accused Krishan Gopal had given blow of knee, consequently, his teeth had broken. He further deposed that when he fell down, his wife Radha (PW4) and his nephew Vinod (PW6) also came down stairs, consequently, accused Krishan Gopal had given a blow of iron angle on the head of Vinod (PW6) and accused Krishan Gopal along with his wife Madhu (A-2) had also beaten his wife Radha (PW4).
15. Though PW3 deposed that accused Krishan Gopal had given 3-4 blows of iron angle on his head but his testimony to this effect does not get strength from the MLC Ex. PW12/A. If accused Krishan Gopal had given 3-4 blows of iron angle on his head, it means he would have SC No. 4/12 Page 7 of 16 State Vs. Krishan Gopal etc. sustained atleast 3-4 injuries on his head but it is not so. As per MLC, he had sustained only one CLW on the left side of his head in parietal region. Besides that he had also sustained abrasion on his right side. Since, the testimony of PW3 is not supported by the MLC to the extent that 3-4 blows of iron angle were given on his head, his testimony to that extent does not inspire any confidence. However, MLC Ex. PW12/A corroborated the testimony of PW3 to the extent that he had sustained injury on his head, thus his testimony that accused Krishan Gopal had inflicted injury on his head appears to be trustworthy.
16. Accused persons took the defence in the testimony of DW1 that PW3 Tulsi Das had sustained injury as he had hit his head on the iron stairs 2-3 times and similarly, PW6 Vinod had self inflicted injuries on his head by giving a blow of danda. Thus, as per defence version, both the injured persons namely PW3 Tulsi Das and PW6 Vinod caused self inflicted injury on their person. But during the cross-examination of PW3, no such suggestion was given to the witness. In other words, no opportunity was given to PW3 to rebut the defence version. On the contrary, during cross- examination of PW3 a suggestion was given to the witness that he and his wife had assaulted the accused party by the means of a sword and due to that reason accused party had called the police. PW3 admitted in his cross-examination that he was arrested by the police in case FIR No. 107/2011, PS Karol Bagh on the complaint lodged by accused party. This shows that both parties had lodged cross-case to each other. During his cross-examination, a suggestion was given to the witness that Mukesh Gautam and Raj Kumar also reached the spot at the time of incident but he denied the same. He also denied the suggestion that the said persons had intervened in the quarrel and separated both the parties. In their SC No. 4/12 Page 8 of 16 State Vs. Krishan Gopal etc. examination recorded under Section 313 Cr.P.C, accused persons took the plea that the sword was snatched from PW3 Tulsi Das and same was given to Mukesh Gautam and Raj Kumar. Thus, as per the defence set up by the accused persons during trial, Mukesh Gautam and Raj Kumar intervened in the quarrel and they separated both the parties and the sword was given to them after snatching it from PW3 Tulsi Das. But surprisingly, the accused persons did not deem it appropriate to bring them in the witness box without any reasonable explanation. Though accused persons examined their daughter Kajal as DW1 but she did not depose that Mukesh Gautam and Raj Kumar intervened in the quarrel and separated both the parties or sword was given to them after snatching it from PW3 Tulsi Das. Thus, in the absence of any cogent evidence, the defence version does not inspire any confidence.
17. Though the accused persons examined their daughter Kajal (DW1) but during the cross-examination of prosecution witnesses, no case was set up to establish that DW1 Kajal was present at the spot at the time of incident. Even in their examination recorded under Section 313 Cr.P.C, no such case was set up.
18. Further DW1 Kajal deposed that Tulsi Das had inflicted injury to her father i.e. Krishan Gopal (A-1) but during trial, accused persons failed to produce any evidence in this regard. In the absence of any cogent evidence, the defence version does not inspire any confidence.
19. PW3 deposed that when he fell down, accused Krishan Gopal and his wife Madhu (A-2) had assaulted his wife Radha (PW4) who deposed that when she came down from stairs, accused persons had SC No. 4/12 Page 9 of 16 State Vs. Krishan Gopal etc. beaten her. As per her MLC, PW4 Radha had sustained simple blunt injury. Thus, there is no reason to disbelieve their testimony to that extent.
20. Though PW3 deposed that accused Krishan Gopal had also given a blow of iron angle on the head of PW6 Vinod but his testimony to that extent is not corroborated by PW6 who deposed that he did not know who inflicted injury to him. No doubt as per the MLC of PW6 Vinod, he had sustained injury in his forehead but he admitted in his deposition that he was under the influence of liquor, thus, he was not in a position to know who inflicted injury to him. Further, admittedly accused Krishan Gopal is the real maternal uncle of PW6 Vinod and he deposed that accused Krishan Gopal had slapped him. It means that PW6 was in a position to recognize the face of person who had slapped him but he failed to recognize the person who had assaulted him on his head. In these circumstances, it would not be safe to hold the accused liable for the injuries caused to PW6 Vinod.
21. PW3 further deposed that he had made a call to his sister Omwati and informed her about the incident. He further deposed that when she reached there, Krishan Gopal (A-1) and Madhu (A-2) had also beaten her. Similarly, PW4 Radha also deposed that both the accused had beaten Omwati. However, in their cross-examination, they admitted that Omwati did not reach their house in their presence as they were in the police station. It means that the incident with Omwati had not taken place in their presence. PW5 Omwati in her testimony deposed that she was beaten by Gopal Krishan (A-1) and his wife Madhu (A-2) by danda and stone. Perusal of MLC (Ex.PW10/C) reveals that she had sustained simple blunt injury. In these circumstances, there is no reason to disbelieve her testimony.
SC No. 4/12 Page 10 of 1622. Though as per MLC of injured Tulsi Das, he had sustained grievous injury but grievous injury was caused not by blow of iron angle but due to the avulsion of one tooth. Though during the cross-examination, accused persons attempted to build up a case that the said tooth was avulsed as PW3 used to consume gutka and liquor. But there is no evidence on record to suggest that the said tooth was avulsed because of consumption of liquor or gutka. PW3 in his examination-in-chief categorically deposed that his tooth had broken when accused Krishan Gopal had given a blow of knee to him. Moreover, accused Krishan Gopal is the real brother of PW3 Tulsi Das, thus he must be aware that his brother used to consume liquor and gutka and if despite that he had given a blow of knee causing avulsion of tooth, it means that he had voluntarily caused the injury to PW3.
23. Though PW3 attempted to attract the provisions of Section 308 IPC by deposing that accused Krishan Gopal had given 3-4 blows of iron angle targeting his head, yet no reliance can be placed on his testimony to that extent as same does not get corroboration from his MLC. Admittedly, PW3 was under the influence of liquor at the time of alleged incident and if we read the testimony of PW3 along with MLC, it appears that only one blow was given which caused injury on left side of his head in parietal region which does not cause serious injury. Thus, the act of accused is not sufficient to attract the provisions of Section 308 IPC. To make out a case under Section 308 IPC, prosecution is duty bound to establish beyond the shadow of doubt that the act must be done with an intention or knowledge and under such circumstances that if by that act, death would be caused, he would be guilty of culpable homicide not amounting to murder. Mere fact that PW3 Tulsi Das had sustained injury on his head ipso-facto, in the SC No. 4/12 Page 11 of 16 State Vs. Krishan Gopal etc. absence of any other evidence, is not sufficient to attract the provisions of Section 308 IPC.
24. Since, accused Krishan Gopal had assaulted PW3 Tulsi Das and caused grievous injury to him, I am of the opinion that prosecution has succeeded to prove his guilt for the offence punishable under Section 325 IPC.
25. Similarly, prosecution has also succeeded to prove the guilt of both the accused persons for the offence punishable under Section 323/34 IPC qua injuries caused to Omwati and Radha.
26. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused Krishan Gopal for the offence punishable under Section 308 IPC beyond the shadow of all reasonable doubts. Thus, I hereby acquit him thereunder. However, prosecution has succeeded to prove the guilt of accused Krishan Gopal for the offence punishable under Section 325 IPC and also succeeded to bring home the guilt of accused Krishan Gopal and Madhu for the offence punishable under Section 323/34 IPC. Thus, I hereby hold them guilty thereunder.
Announced in the open court
on this 25th day of July, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 4/12 Page 12 of 16
State Vs. Krishan Gopal etc.
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 04/2012 ID No. 02401R0027452012 FIR No. : 108/11 Police Station : Karol Bagh Under Section : 323/325/308 IPC State Versus 1 KRISHAN GOPAL S/o Sri Ram, R/o 3752/18, Regar Pura, Karol Bagh, New Delhi.
.........Convict No. 1.
2 Madhu W/o Krishan Gopal R/o 3752/18, Regar Pura, Karol Bagh, New Delhi.
.........Convict No. 2.
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Tarun Arora, Advocate, counsel for the both the convicts.
SC No. 4/12 Page 13 of 16State Vs. Krishan Gopal etc. ORDER ON THE POINT OF SENTENCE:
1. Vide separate judgment dated July 25, 2013, accused No. 1 Krishan Gopal was held guilty for the offence punishable under Section 325 IPC whereas accused No. 1 Krishan Gopal and accused No. 2 Madhu were held guilty for the offence punishable under Section 323/34 IPC.
2 Learned counsel appearing for convicts requests for a lenient view on the ground that the convicts have no criminal antecedents. It is submitted that convict No. 1 is sole bread earner of the family comprising of one mentally retarded son and two daughters. It is submitted that the report of Probation Officer has already been received and same is also in favour of the convicts, thus learned counsel requests to release the convict of probation of good conduct.
3. Per contra, learned Additional Public Prosecutor requests for substantial punishment qua convict No. 1.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. Indisputably, the incident had taken place between real brothers. Though during trial it was surfaced that some property dispute was going on between the parties, yet it could not be surfaced about the cause of the incident in question. Admittedly, the convicts have no criminal record. Perusal of the report of Probation Officer reveals that both the SC No. 4/12 Page 14 of 16 State Vs. Krishan Gopal etc. convicts are the first offenders and they are not involved in any other criminal case. They have also shown rectified behaviour in open society and observe discipline norms of the society. They have responsibility of one mental retarded adolescent son and two young daughters. Considering the family back ground and conduct of the convicts in the society, Probation Officer recommended to release them on probation of good conduct.
6. Considering the submissions of counsel for both the parties and report of Probation Officer, I am of the opinion that ends of justice will be met if convicts be released on probation of good conduct, thus I hereby release both the convicts on probation of good conduct on furnishing a personal bond in the sum of ` 10,000/- each with one surety in the like amount for a period of one year with condition that they shall appear and receive sentence during the said period as and when call and in the meantime, they shall keep of good behaviour and with following additional conditions:
(i) That both the convicts shall pay compensation of ` 30,000/-.
(ii) That they shall deposit ` 5,000/- towards the cost of proceeding.
(iii) That convict No. 1 shall not consume liquor or any other intoxicant during the said period.
7. From the said amount of compensation, ` 20,000/- be paid to PW3 Tulsi Dass and ` 5,000/- each to PW4 Radha and PW5 Omwati towards the injuries caused to them. However, the amount of compensation shall be released to them after the expiry of period of appeal or revision and if any appeal or revision is filed, after the decision of such appear or revision. Intimation be sent to the injured persons accordingly.
SC No. 4/12 Page 15 of 168. Copy of judgement along copy of order on the point of sentence be given to the convicts free of cost.
9. File be consigned to record room.
Announced in the open court
on this 31st day of July, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 4/12 Page 16 of 16