Delhi District Court
State vs . 1. Dinesh on 19 May, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 07/2010
Unique ID No.: 02404R0136092009
FIR No.: 33/2006
PS: Rohini
U/Sec. 308/34 IPC
STATE VS. 1. DINESH
S/o Sadhu Ram,
R/o H No. 109,
Village Rithala, Delhi.
2. BIMLA
W/o Om Prakash,
R/o H No. 109,
Village Rithala, Delhi.
3. ASHOK @ SHOKI
S/o Hushiar Singh
R/o H No. 109,
Village Rithala, Delhi.
4. OM PRAKASH
S/o Tek Chand
R/o H No. 109,
Village Rithala, Delhi.
Date of Institution to the Sessions: 04.05.2010
Date of conclusion of Arguments: 09.05.2011
Date of pronouncement of Judgment: 14.05.2011
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JUDGMENT
1 All the four accused persons have been sent up to face trial for commission of offences u/s 308/34 IPC.
2 Case was received on allocation by this court on 04.05.2010 and vide order dated 14.05.2010, all the accused persons were ordered to be charged u/s 308/34 IPC. Brief facts of the case were mentioned in the order on charge which are extracted and reproduced as under:
"Investigation took off on the basis of report lodged by Manjeet. Briefly stated, case of the prosecution, is to the effect that on 12.01.06, Manjeet Singh was present at his shop and coaccused Ashok @ Shoki played taperecorder at a high pitch. When Manjeet objected in this regard, accused Ashok became furious. He even threatened to teach him a lesson, though, he stopped playing the taperecorder. At 7 pm, all the accused persons came at the shop of Manjeet. Accused Ashok @ Shoki was armed with some pointed object and accused Om Prakash @ Prakash was armed with hockey. Manjeet was attacked with said pointed object and accused Om Prakash gave hockey blow on his head. When Manjeet shouted for help, Manmeet and Kulwinder came for his rescue and then accused Bimla caught hold off accused Manmeet and accused Ashok hit him with same pointed object on his cheek.
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Accused Om Prakash also gave hockey blow on the head of Kulwinder and Kulwinder also received injuries on his head. All the accused fled from the spot. Injured were taken to Jaipur Golden Hospital. During investigation, accused were arrested and it in these circumstances that they have been sent up to face trial".
3 Prosecution was directed to adduce evidence and has examined ten witnesses viz. PW1 Manjeet Singh (injured), PW2 Kulwinder Singh (injured), PW3 HC Om Pal (Duty Officer), PW4 Manmeet Singh (injured), PW5 HC Dharampal, PW6 HC Sanjay, PW7 ASI Kaptan Singh (First IO), PW8 Dr. S.C. Sood, PW9 Dr. Pradeep Dua and PW10 D.K. Chabra (Record Incharge, Jaipur Golden Hospital) 4 All the accused, in their respective statements u/s 313 Cr.P.C., pleaded innocence and took plea of alibi. Accused persons have also examined three witnesses in their support. DW1 Pinki is relative of accused Bimla and according to her, Bimla had come to her village on 12.01.2006. DW2 Ram Chander is neighbour of accused Ashok and he has also claimed that accused Ashok was present in his village Bhopania, Tehsil Bahadurgarh on 12.01.2006. PW3 Sh. Asha Ram is Assistant Director, DDA. Accused Om Prakash had summoned him in order to prove that he was in his office that day. Fact, however, remains that attendance record pertaining to year 2006 was no longer available with State Vs. Dinesh etc. Page 3 of 19 DDA and, therefore, it could not be produced.
5 I have heard Ms. Purnima Gupta, Ld. APP and Sh. A.K. Chaudhary and Sh. Aijaz Ahmed, Ld. defence counsels and carefully scanned the entire material available on record. 6 Ld. APP has contended that prosecution has been able to prove its case to the hilt. She has argued that all the three material public witnesses have graced the witness box and have supported the case of prosecution in toto. She has contended that as per the prosecution story, the tape recorder was allegedly played on a high pitch and when Manjeet objected in this regard, accused Ashok became furious. Same evening, in a preplanned manner, accused Ashok came carrying some pointed object and accused Om Prakash was carrying hockey and other two accused were armed with dandas and they all in a premeditated manner caused injuries. She has also argued that it is not a case of sudden quarrel and injuries received by Manjeet and Manmeet were found to be grievous in nature and moreover, injuries were found on delicate and sensitive part of the body which clearly indicates that all the accused had come with intention to cause death and the intention was not to merely cause injuries.
7 All the aforesaid contentions have been refuted by the defence counsels and it has been argued that accused persons have been State Vs. Dinesh etc. Page 4 of 19 falsely implicated and they were not present at the spot that day at all. Defence contentions can be enumerated as under:
(i) Accused were not present at the spot at the relevant time, place and date.
(ii)There is no corroboration from neutral corner.
(iii) Investigation is motivated.
(iv) Alleged blood stained clothes and alleged weapon of offence were neither recovered nor seized.
(v) There are material contradictions amongst the testimony of all the three material public witnesses.
(vi) It is not clear whether the incident had taken place inside the shop or outside the shop.
(vii) Accused persons have been falsely implicated due to previous enmity between the parties.
8 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record. 9 As already noticed above, the case of prosecution primarily rests upon the testimony of three material public witnesses i.e. PW1 Manjeet, PW2 Manmeet and PW4 Manmeet. I have seen their testimony very minutely and I have no hesitation in coming to the conclusion that they all have given very convincing account of the incident and have corroborated one another on each and every aspect of the case. I cannot State Vs. Dinesh etc. Page 5 of 19 be oblivious of the fact that incident had taken place in the year 2006 and since the case was committed in the year 2010, the testimony of all the material public was also recorded in the year 2010. In such a situation when witnesses are asked to narrate the incident in witness box after a gap of more than four years, some minor discrepancies are bound to occur and it becomes the duty of the court to see whether such discrepancies go to the root of the matter and create a serious doubt in the correctness of the case of prosecution or not. Here, whereas, witnesses have given complete and vivid description. Be that as it may, in the aforesaid background, let me now see testimony of these three material public witnesses.
10 PW1 Manjeet Singh has deposed that he used to run a kirayana shop from his house no. 115 situated in Village Rithala. On 12.01.2006, he was at his shop. Accused Prakash i.e. Om Prakash was having his house situated opposite his house. Manjeet Singh heard noise coming from the house of accused Om Prakash as he had played tape recorder at a high pitch and he asked Om Prakash to slow down the same but accused Om Prakash denied claiming that it was none of his business and then he threatened him to teach him a lesson by claiming abhi maza chakata hun. He further deposed that at 7 pm when he was sitting at his shop, all the accused came there. Accused Om Prakash hit him with hockey and accused Shoki was carrying some pointed object and hit him with the same on his head and nose and accused Bimla and Dinesh State Vs. Dinesh etc. Page 6 of 19 started hitting him with dandas. He also shouted for help and then his cousin Manmeet came for his rescue who was living in the same house. His younger brother Kulwinder came. Accused Bimla, however, caught hold of Manmeet and accused Om Prakash hit Manmeet on his cheek with some pointed object and was given danda blow by accused Om Prakash. Accused Dinesh was also beating him up. All the accused had also collectively attacked Kulwinder. He deposed that Kulwinder was beaten up by Om Prakash and Bimla and other two accused caught hold of Kulwinder. Due to the injuries given by accused persons, Kulwinder fell down unconscious and Manjeet again shouted for help and then his mother came out of the house and all the accused then fled from the spot. According to PW2 Kulwinder, his mother took them all to Jaipur Golden Hospital and police recorded his statement at the hospital. His statement has been proved as Ex.PW2/A. He also deposed that accused was arrested during investigation and he also claimed that due to the impact of head injuries, he still used to feel giddiness on some occasions. 11 It would be worthwhile to mention here that as per the case set up by the prosecution, the tape recorder was allegedly run by accused Ashok in a high pitch in the morning hour and the quarrel had taken place in the evening hour. In witness box, however, Manjeet has deposed that he heard loud noise of tape recorder coming from the house of Om Prakash at 6 or 7 pm. Prosecution did not opt to get such fact clarified from the witness. Be that as it may, fact remains that it becomes very State Vs. Dinesh etc. Page 7 of 19 much apparent from the testimony of Manjeet, that before the actual incident, Manjeet had gone to the house of accused Ashok and told him to slow down the volume of tape recorder but accused Ashok did not relent and rather threatened him. Other two material public witnesses are naturally oblivious about such incident related to playing of tape recorder at high pitch. They had come at the spot only after they heard shouts of Manjeet.
12 I have seen testimony of PW2 Kulwinder and PW4 Manmeet and they have also fully supported the case of prosecution. 13 PW2 Kulwinder has categorically deposed that all the four accused persons had surrounded his brother Manjeet outside his shop and he rushed outside on hearing his shouts. He has also deposed that accused Bimla had caught hold of Manmeet Singh and he himself had been caught hold of by accused Ashok and Dinesh and that he was hit by hockey on his head by accused Om Prakash. He also deposed that accused Ashok had hit his brother Manmeet with some pointed object on his cheek and Manmeet was also given hockey blow on the hand of accused Om Prakash. There is no dispute with respect to the identification of accused as PW2 Kulwinder has claimed that he knew all accused persons before hand as they were his neighbours. He stated that accused Bimla was wife of accused Om Prakash and accused Dinesh was their soninlaw and accused Ashok was also related to Bimla. He also State Vs. Dinesh etc. Page 8 of 19 affirmed that mother of Manjeet had taken all injured to hospital. 14 Similarly, PW4 Manmeet has supported the case of prosecution barring a small deviation. According to him, the incident had take place on 13.01.2006. As per the case of prosecution and as per the testimony of other witnesses, the incident had taken place on 12.01.2006 and the FIR was recorded on the night intervening 12.01.2006 and 13.01.2006 at about 12:15 am. Since Manmeet Singh was found to be adamant on this score, Ld. APP put a leading question to him with respect to the correct date of the incident but despite that Manmeet Singh did not relent and reiterated that the incident had taken place on13.01.2006 and not on 12.01.2006. However, such fact by itself does not cause any doubt in the case of prosecution. The other two witnesses have categorically given the exact date of incident as 12.01.2006. Moreover, testimony of PW7 ASI Kaptan Singh is unambiguous in this regard and he has also given the date as 12.01.2006 and according to him, on 12.01.2006, on receipt of DD No. 39, PP Vijay Vihar, he had reached at the spot at about 7 or 7:30 pm. MLCs also clearly indicate that all the three injured were brought at Jaipur Golden Hospital on 12.01.2006 at 7:15 pm. In such type of matters, sometimes the witnesses do not come up with the exact date when the investigation relates to late evening hours. Astonishingly, this has even happened with HC Sanjay. He had accompanied ASI Kaptan Singh on 12.01.2006 to the spot but even he has not bothered to give the correct date. Be that as it State Vs. Dinesh etc. Page 9 of 19 may, in view of the testimony of PW1 Manjeet and PW2 Kulwinder and also keeping in mind the testimony of ASI Kaptan Singh and MLCs, there is no doubt that the incident had taken place on 12.01.2006. 15 I would also like to mention here that there is very sketch cross examination of PW4 Manmeet which automatically gives credence to the prosecution story.
16 Ld. defence counsels have argued that accused Bimla is a fragile lady and it is not possible that she would be in a position to hold three persons in their nineteen and twenties. I would have agreed to this contention had the prosecution come up with the case that Bimla was the lone accused. Three coaccused were also with her and were armed and, therefore, accused Bimla cannot be granted any benefit merely because of the fact that it was not possible for her to catch or control injured persons. 17 It has been further argued by defence counsels that there is no corroboration from the neutral corner. Undoubtedly, the incident had taken place in a busy residential area. I have seen the site plan Ex.PW7/D where the spot of occurrence has been shown as outside kiryana shop of complainant. There is a post office situated very near to the shop and one STD Booth is also situated in opposite side.
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18 Such types of incident are normally over in a flash and
moreover, public witnesses are, more often than not, reluctant to join such type of investigation. People generally associate themselves when their own interest is at the stake and, therefore, defence cannot be granted any advantage in this regard either.
19 There is nothing on record which may show that the investigation is motivated or that the accused persons have been falsely implicated due to previous enmity. Moreover, previous enmity is a doubleedged weapon. If it becomes the reason for false implication, it also supplies a reason and motive for the incident. 20 Defence counsels have further argued that it is not clear whether the incident had taken place inside the shop or outside the shop. Undoubtedly, as per PW1 Manjeet, incident had taken place when he was sitting at the shop and incident had taken place inside the shop whereas according to Kulwinder Singh, Manjeet was surrounded by accused persons outside his shop. The court does not have the benefit of any photograph of the actual spot and, therefore, I am constrained to again switch over to the site plan. As per the site plan, point A is the place where the incident had taken place and it is just touching the supposed entrance of kiryana shop of complainant. Thus, there is not much difference between inside or outside the shop and moreover, the manner in which the incident has been narrated by the witnesses, it can safely be State Vs. Dinesh etc. Page 11 of 19 assumed that initially, when all the accused had come, the complainant was sitting inside the shop but when he saw himself in hapless position, he shouted for help and by that moment, he must have also come out of the shop to save himself and then his two relatives came there and they were also not spared by the accused persons and that particular scuffle must have taken place just outside his shop and not inside the shop. In view of aforesaid, such minor issue whether the entire incident had taken place inside the shop or outside the shop pales into insignificance. 21 It has further been argued from the side of defence that neither the alleged weapons of offence nor the alleged bloodstained clothes of injured have been sized or recovered. Undoubtedly, the investigating agency should have been very vigilant in this regard and should have bothered to collect and seize at least the clothes of injured. However, such defect in the investigation, by itself, does not become sufficient to throw away the entire case of prosecution. 22 According to defence counsel, PW2 Kulwinder was admitted in ICU and it is not possible that his statement would have been recorded in ICU. I have seen MLC of PW2 Kulwinder which is exhibited as Ex.PW9/B. Undoubtedly, PW2 Kulwinder was not fit for statement and, therefore, his statement was not recorded immediately. According to ASI Kaptan Singh, when they had reached the hospital, he collected MLCs of all the injured and it was only Manmeet who was found fit for statement State Vs. Dinesh etc. Page 12 of 19 and, therefore, statement of Manjeet was recorded and on the basis of his statement, rukka Ex.PW7/A was prepared. It is apparent that statement of PW2 Kulwinder was recorded subsequently. Simply because a person is admitted in ICU, it cannot be always robotically inferred that such person would not be in any position to give statement. 23 In such type of sudden incident, endeavour is to provide best medical aid. There was nothing bad if they all had been taken to a private hospital.
24 I have seen the statements of defence witnesses. DW1 Pinki has attempted to show that on 12.01.2006, Bimla had come to her village i.e. Village Kasareti Sanpla. However, her testimony does not inspire any confidence. She did not lodge any report with the police that her sisterinlaw Bimla had been falsely implicated. It seems that she is trying to save Bimla being her close relative. Simultaneously, testimony of DW2 Ram Chander does not inspire any confidence. Testimony of DW3 Asha Ram could have been of some importance but fact remains that since the attendance record pertaining to accused Om Prakash was not produced before the court, defence has failed to establish that on 12.01.2006, accused Om Prakash was present in his office and thus was not present at the spot. Moreover, defence has forgotten the fact that the incident had taken place at 7:15 pm and defence has not bothered to explain as to what were the normal working hours of accused Om State Vs. Dinesh etc. Page 13 of 19 Prakash. This could have been at least asked from DW3 Asha Ram but defence did not put any such question with respect to working hours of accused from its own witness.
25 Investigational aspects are not much in dispute. ASI Kaptan Singh has proved rukka Ex.PW7/A, site plan Ex.PW7/B and also the arrest memos and personal search memos of accused persons. PW6 HC Sanjay had accompanied him during the investigation and his testimony is also unrebutted.
26 Thus from the aforesaid discussion, it stands proved that all the accused had come together and caused injuries on the person of Manjeet, Kulwinder and Manmeet in furtherance of their common intention.
27 Now, it only remains to be seen whether the accused have committed offence u/s 308 IPC or whether they had merely come with the intention to cause hurt.
28 MLC of Kulwinder reveals simple injuries with 1 cm CLW on mid scalp area. Manmeet had received grievous injuries as he had suffered fracture of alna of left arm. Manjeet received grievous injuries as there was CLW approximately 3 cm on mid frontal region.
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29 In the case of BRAJ KISHORE MANDAL V. STATE OF
BIHAR 2008 CRI. L. J. 1448 PATNA, danda blow was given on vital part of body i.e. on head but there was any intervening circumstances suggesting that accused wanted to do away with life of injure and resultantly, conviction of accused was altered from S. 307/34 to one under S. 324 IPC . Reference be also made to VELU V. STATE 2004 CRI. L. J. 3783 MADRAS, MAHADEO RAI V. STATE OF BIHAR 2008 CRI. L. J. 3278 PATNA, PRAN YADAV V. STATE OF JHARKHAND 2007 CRI. L. J. 1059 JHARKHAND .
30 In the case of BISHAN SINGH VS. STATE AIR 2008 SC 31, victim, who was assaulted by several accused with lathis, had received seven injuries including lacerated wounds on scalp and right parietal region. His arm was also fractured. He was held guilty u/s 308 IPC by trial court and High court also confirmed such conviction. However, Apex court noted that there was nothing in the deposition of victim that accused had attacked him with intention to kill. Conviction was accordingly altered from s. 308 IPC.
31 In the case of MD. ISAK MD. VS. STATE OF MAHARASHTRA, AIR 1979 (SC) 1434, deceased was assaulted after sudden exchange of abuses and Apex Court held that there was no evidence to gather intention to cause death and it was observed that the State Vs. Dinesh etc. Page 15 of 19 intention was to cause grievous hurt and the offence fell u/s 325/34 IPC and not under Section 304 (1) IPC and conviction was altered accordingly. In that case, victim had died as well. Following observations made therein are noteworthy:
"...The occurrence in the course of which the deceased was assaulted, took place suddenly and after hot exchange of abuses, which took place between the deceased and the appellants. The appellants are said to have assaulted the deceased with sticks. There is no evidence to show as to which of the appellants struck the fatal blow on the deceased. Having regard therefore to the circumstances of the present case and the nature of injuries sustained by the appellants, we are unable to agree with the High Court that the case falls under Section 302. There is no evidence of any intention on the part of the appellants either to cause death of the deceased or cause such injuries of which the appellants could have the knowledge that it was likely to cause death although it cannot be doubted that the appellants had the common intention to cause grievous hurt to the deceased by lathis. Thus the offence fails under Sections 325/34 and not under Section 302 or 304 (1)."
32 From the broad conspectus of the evidence appearing on record as well as the medical report, it becomes perceptible that accused had no intention to cause death. Though accused had come armed with lathis etc, they never intended to cause culpable homicide not amounting to murder.
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33 Resultantly, all the accused are hereby held guilty and
convicted u/s 324/34 IPC (for causing injuries upon the person of Kulwinder Singh) and u/s 325/34 IPC (for causing injuries upon the person of Manjeet Singh and Manmeet Singh).
Announced in the open court Today i.e. on 14th May, 2011 (MANOJ JAIN) ASJ/SPECIAL JUDGE (NDPS) OUTER DISTRICT: ROHINI COURTS:DELHI State Vs. Dinesh etc. Page 17 of 19 IN THE COURT OF MANOJ JAIN ASJ/SPECIAL JUDGE (NDPS) OUTER DISTRICT:ROHINI COURTS:DELHI State Vs. 1. Dinesh
2. Ashok
3. Om Prakash
4. Bimla FIR No.: 33/06 PS: Rohini 19.05.2011, Thursday Order on Sentence Present: Ms. Purnima Gupta, Ld. A.P.P. for the State.
All the four convicts with counsel Sh. A.K. Chaudhary and Sh. Sunil Goyal.
1 Heard arguments on sentence.
2 Ld. APP has prayed for appropriate sentence.
3 It has been argued from the side of defence that convicts have no previous bad antecedents and it has been reiterated that complainants have falsely implicated the convicts.
4 Convicts have been held guilty u/s 324/325/34 IPC. Convicts Bimla is 44 years of age and her husband Om Prakash is also in the same age bracket. Other two convicts are in their twenties. During investigation period, all the convicts except for convict Bimla spent some period behind the bars. Convict Ashok remained in jail for a period of more than one month. 5 Keeping in mind the nature of the offence, attending circumstances and previous clean antecedents of the convicts, I find it to be a fit case where convicts can be accorded benefit of probation. Accordingly, State Vs. Dinesh etc. Page 18 of 19 instead of sentencing them at once, they all are ordered to be released on Probation on their furnishing Personal Bond and Surety Bond in a sum of Rs. 10,000/ each undertaking to keep peace and be of good behaviour for a period of six months from today and to appear and receive sentence as and when so directed by the court during the aforesaid period of six months.
6 Simultaneously, in order to compensate all the three injured towards injuries suffered by them and medical expenses which might have been incurred by them for treatment, each convict is directed to deposit a sum of Rs. 7,500/ in terms of Section 5(1)(a) of Probation of Offenders Act, 1958.
7 In terms thereof, total sum of Rs. 30,000/ has been deposited by the convicts. Bonds have also been furnished and accepted. Needless to say that since benefit of probation has been extended to convict Om Prakash also, he would be entitled to avail the benefit of Section 12 of Probation of Offenders Act.
8 Copy of Judgment and order on sentence be given to convicts free of cost.
9 Separate file be opened for the purposes of disbursement of compensation amount to all three injured and they be called on 16.07.2011 for necessary disbursement.
10 Main file be consigned to Record Room.
Announced in the open court (MANOJ JAIN)
today i.e. on 19.05.2011 ASJ/Special Judge (NDPS)
Outer District:Rohini Courts:Delhi
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