Delhi District Court
State vs . 1. Brahm Prakash @ Brahm on 10 March, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 160/10
Unique ID No.: 02404R0302572010
FIR No.: 33/08
PS: Mangol Puri
U/Sec. 308/341/34 IPC
STATE VS. 1. BRAHM PRAKASH @ BRAHM
S/o Suraj Bhan,
R/o K230, Mangol Puri, Delhi.
2. DHARMENDER @ BABUL
S/o Janakjeet Singh,
r/o L406, Mangol Puri, Delhi.
3. RAJESH @ BABLU
S/o Sh. Ramdass,
R/o L1404, Mangol Puri, Delhi.
4. DAVENDER @ KALU
S/o Kishori Lal,
R/o L435, Mangol Puri, Delhi.
Date of Institution: 30.11.2010
Date of conclusion of Arguments: 10.03.2011
Date of pronouncement of Judgment: 10.03.2011
JUDGMENT
1 All the four accused persons have been sent up to face trial for commission of offences u/s 308/341/34 IPC.
State Vs. Brahm Prakash etc. page 1
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2 Case of the prosecution, briefly stated, is to the effect that on
13.01.2008 at about 10 pm, Babloo was going to his house to fetch rotis. He used to sell 'rotis and cooked daal' on a rehri. When he reached near temple situated in L Block, all the four accused persons met him and started abusing him. They all claimed that earlier, he had been spared but that day, he would not be left alive. Babloo initially did not pay any attention to them. However, the accused persons did not relent and they stopped him and gave him thrashing with kicks and fists. When he shouted for help, all the accused persons fled away. Babloo got treatment from private hospital but since he did not get the requisite relief, he was taken to SGM Hospital. Police was also informed. Statement of Babloo was recorded and FIR was accordingly registered. During investigation, all the accused persons were arrested and it is in these circumstances that the accused persons have been chargesheeted. 3 Case was received on allocation by this court on 30.11.2010 and same day, all the accused were ordered to be charged u/s 341/308/34 IPC. They all pleaded not guilty and claimed trial. 4 Prosecution was directed to adduce evidence and has examined six witnesses viz. PW1 Babloo (injured), PW2 Dr. Sanjay Kaushik, PW3 Dr. Amitabh Bhasin, PW4 Prem Sagar, PW5 WHC Sita Devi (Duty Officer) and PW6 Mon Devi (mother of injured) State Vs. Brahm Prakash etc. page 2 of 8 5 All the accused, in their respective statements u/s 313 Cr.P.C., admitted that the incident had taken place. However, they also stated that since it was festival of Lohri, they all along with injured Babloo were enjoying the festival and they all had consumed liquor and a quarrel had taken place due to some minor misunderstanding. They all also claimed that injured Babloo had already exonerated them and they also felt sorry for the incident.
6 Accused persons did not choose to lead any evidence in defence. 7 I have heard Ms. Purnima Gupta, Ld. APP and Ld. defence counsel and carefully perused the entire material available on record. 8 As already noticed above, the incident in question is not in dispute. Only it is required to be seen as to whether the prosecution has been able to prove its case u/s 308 IPC or any lesser offence is revealed. 9 In this regard, it would be pertinent to refer to the testimony of injured as well as his MLC.
10 PW1 Babloo has identified all the four accused persons and has deposed that on 13.01.2008, when he was coming to his house for collecting some more edibles for his rehri, all the accused persons met him near L Block, on road near Shiv Mandir and Vishnu Mandir and they State Vs. Brahm Prakash etc. page 3 of 8 all started abusing him. He has also deposed that all the accused told him that earlier he had been spared but that night, he would not be spared. Then all the accused persons started beating him and gave blows with kicks and fists. It would be pertinent to mention that initially, he had claimed that only two accused had scuffled with him and gave beatings but when he was crossexamined by the prosecution with the permission of the court, he categorically claimed that he was given blows by all the accused persons. In his crossexamination conducted by the accused persons, he admitted that all the accused persons were his friends and they all were enjoying the festival of Lohri. He also admitted that they all were drunk. He also claimed that accused persons did not have any intention to kill him and he was merely given kicks and fists. He admitted that it was free fight and he himself had given blows to accused persons. He also claimed that they all were friends and continued to be friends and that he did not want any further action against the accused persons as they had already felt sorry for the incident.
11 It becomes very much evident from the testimony of Babloo that accused persons were given blows with kicks and fists only. They all were drunk and I also cannot lose sight of the fact that they all were friends. Babloo himself has also admitted that accused persons had no intention to kill him and rather it was a case of free fight and he himself had also given injuries to accused persons.
State Vs. Brahm Prakash etc. page 4
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12 I have seen the MLC of Babloo which has been duly proved as
Ex.PW2/A. The injury was opined to be dangerous from surgical angle. Radiological report has been proved as Ex.PW3/A which revealed that free air was noted below bilateral hemidiaphragm. 13 No material suggestion has been put to PW1 Babloo. On the other hand, incident is admitted. Admission is found to be there even in the statements made by the accused persons in statements recorded u/s 313 Cr.P.C. From the testimony on record, I am unable to find out any fact which may even remotely suggest that Babloo had been given thrashing with the intention to eliminate him.
14 The Court has to see whether the act, irrespective of result of the act of accused, was done with the intention or knowledge and under circumstances mentioned in Section 308.
15 In the case of BRAJ KISHORE MANDAL V. STATE OF BIHAR 2008 CRI. L. J. 1448 PATNA, danda blow was given vital part of body i.e. on head, but there was no repetition of assault nor there was any intervening circumstances suggesting that accused wanted to do away with his life 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 State Vs. Brahm Prakash etc. page 5 of 8 OF BIHAR 2008 CRI. L. J. 3278 PATNA, PRAN YADAV V. STATE OF JHARKHAND 2007 CRI. L. J. 1059 JHARKHAND .
16 In the case of NIRANJAN KUMAR VS. STATE 2008 JCC 838, DELHI, accused had allegedly picked up a stone and started hitting the complainant on his head and face with a threat to kill. Accused was, however, booked for offence under Section 308 IPC and it was held by Ld. Additional Sessions Judge that there was nothing on record to make out a case under Section 308 IPC and case was only of a simple hurt. Such order was upheld by Hon'ble High Court of Delhi. 17 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.
18 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 State Vs. Brahm Prakash etc. page 6 of 8 to cause death and it was observed that the 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)."
19 Any hurt which endangers life is also said to be grievous hurt as per Section 320 IPC and is punishable u/s 325 IPC. 20 Undoubtedly, one of the material public witness has not supported the prosecution version but keeping in mind the testimony of injured, his mother, MLC on record and the facts admitted by accused in their State Vs. Brahm Prakash etc. page 7 of 8 respective statements u/s 313 Cr.P.C, I hold all the four accused persons guilty for commission of offences u/s 341/325/34 IPC. Announced in the open court Today i.e. on 10th March, 2011 (MANOJ JAIN) ASJ/SPECIAL JUDGE (NDPS) OUTER DISTRICT:ROHINI COURTS:DELHI State Vs. Brahm Prakash etc. page 8 of 8