Delhi District Court
State vs Hariom @ Vicky on 27 February, 2012
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE (NORTH EAST)
KARKARDOOMA COURTS : DELHI
SC no. 29/11/05
FIR no. 106/05
Police Station New Usmanpur
U/Section 308 IPC
Reserved for orders on 16.02.2012
Judgment announced on 27.02.2012
State V/s Hariom @ Vicky
S/o Sh. Prem Raj,
R/o D-2/309, Nand Nagri,
Shahdara, Delhi.
JUDGMENT
1. The above named accused was booked by SHO PS New Usmanpur Under Section 308 IPC with the allegations that 02.04.2005 at about 5.30 p.m near K Block Jhuggies in parking behind Hospital, Seelampur, Delhi accused Hari Om gave a bat blow on the head of Mohd. Rashid with such intention or knowledge and under such circumstances, that if by the said act he had caused the death of said Mohd. Rashid, he would be guilty of culpable State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.1 of pages 16 homicide not amounting to murder.
2. In short, the case of the prosecution is that on 02.04.2005 on receipt of DD No.35B ASI Rakesh Kumar alongwith Ct. Bharat Veer reached at the spot i.e. K Block, Jhuggi near parking behind hospital Seelamur, where they met Mohd. Sarif and his nephew Mohd. Sagir, who had apprehended the accused. On knowing the fact that the injured had already been removed to the GTB Hospital, ASI Rakesh Kumar handed over the accused Hari Om to Ct. Bharat Veer and went to the GTB hospital and collected the MLC bearing no.A-1219/05 of unknown name and address wherein doctor mentioned the result of injury as alleged H/O assault H/O Lact u.o Blunt and the injured was declared unfit for statement. Thereafter ASI Rakesh Kumar came back to the spot and recorded the statement of Mohd. Sharif, wherein he alleged that on 02.04.2005 at about 5.30 p.m he was sitting near parking with his horse alongwith his nephew namely Mohd. Sagir. Two boys were started quarreling and abusing with each other. One of State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.2 of pages 16 them was Hari Om @ Vicky (whose name came to know later on), who snatched the cricket bat from one child, who was playing in nearby park and hit the same from back on the head of one person namely Rashid (whose name came to know later on) to whom they saved and they caught the accused Hari Om and handed over him to the ASI Rakesh Kumar. Meanwhile, the injured was removed to the hospital by the police vehicle and the bat was taken away by one child. ASI Rakesh Kumar left for the GTB hospital after leaving the accused Hari Om with them and constable accompanying him and after coming back from hospital recorded his statement.
On the basis of the statement of complainant Mohd. Sharif and the MLC of injured, IO got the FIR registered U/s 308 IPC while sending the rukka through Ct. Bharat Veer to PS New Usman Pur. He arrested the accused and conducted his personal search. He also prepared the Site Plan, recorded the statements of witnesses and obtained the result on the MLC of injured person and on completion State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.3 of pages 16 of investigation presented the charge sheet for trial.
3. Since the offence alleged against the accused is exclusively triable by the court of sessions, so after supplying copies etc., the case was committed to Sessions and by way of assignment the case was received in this court.
4. This is pertinent to mention here that after committal of the case to the sessions, the accused remained absent and ultimately was declared proclaimed offender. Then the statements of witnesses were recorded U/Sec.299 Cr.P.C and after closing of prosecution evidence, the present case file was directed to be consigned to Record Room with further direction to revive the same as and when accused is arrested. Thereafter, upon moving an application for issuance of production of warrant of accused Hari Om @ Vicky, file was called from Record Room and the accused was ordered to be produced before the court on issuance of production warrant. Then after due deliberation, charge U/s 308 IPC State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.4 of pages 16 was framed against the accused by Ld. Predecessor to which he pleaded not guilty and claimed trial. Prosecution was called upon to adduce evidence to establish its case.
5. For discharging the onus placed on it, prosecution tendered eight witnesses in all. PE was closed and statement of accused person was recorded U/Sec.313 Cr.P.C, wherein he controverted the entire prosecution evidence as false and pleaded innocence. The accused did not elect to lead any defence evidence. Final arguments were advanced by Ld. Defence Counsel as well as by Ld. Addl. Public Prosecutor. I have perused the records and given my prolonged consideration to the rival contention made before me.
6. PW1 Sharif is the complainant and PW-2 Sagir is the nephew of PW-1 and they are the eye witnesses and the star witnesses of the prosecution. PW-3 ASI (Retd.) Rakesh Kumar is the IO of the case. PW-4 is Ct. Bharat Veer Singh, who had accompanied the IO to the spot on receipt of initial information about the incident. PW5 is State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.5 of pages 16 HC Salauddin, the Duty Officer who had recorded DD no. 35B. He proved the copy of the same as Ex.PW4/A (while recording his statement U/s 299 Cr.P.C). He also proved on record the copy of FIR Ex.PW4/B. PW-6 is Dr. Mohit Kumar Joshi, Asstt. Professor, Surgery, GTB Hospital, who opined the nature of injury, on the MLC bearing No.A-1219/05 of patient (unknown), to be simple in nature vide his endorsement Ex.PW5/A. PW-7 is Dr. P. Ram, CMO from GTB Hospital, who proved the MLC bearing No.A-1219/05 of unknown person as Ex.PW7/B, who was medically examined by Dr. Kaushik Handique under his supervision. The last witness is PW-8 Dr. Hompriya, SR (Neuro Surgery Department) from GTB Hospital, who identified the handwriting and signature of Dr. Shaiwal (as per record) as Ex.PW8/A at point A.
7. As per submissions of Ld. Addl. P.P for the State the case stands fully proved against the accused beyond the shadow of doubt. PW-1 and PW-2, who are the eye witnesses of incident have fully supported the prosecution State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.6 of pages 16 case and have duly identified the accused as the assailant, who had caused the blow of cricket bat on the head of the injured Mohd. Rashid. They being the tonga puller, who were present at the spot, are the natural and independent witnesses and there is no reason to disbelieve them. The medical evidence is in consonance to the testimonies of ocular witnesses. The injuries sustained by injured Rashid has been duly proved on record by the IO of the case as Ex.PW7/B and PW-6 Dr. Mohit Kumar, who opined the nature of injury in the said MLC also identified his signatures on the MLC at point A and also made his endorsement qua nature of injury as Ex.PW5/A. PW-7 Dr. P. Ram also identified the MLC Ex.PW7/B prepared by Dr. Kaushik and also identified the signatures of Dr. Kaushik at point A. As such, the accused, who had given a blow from the cricket bat on the head of the injured was having the knowledge that by his said act the death of the person could take place and as such he is liable to be convicted for the offence punishable under State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.7 of pages 16 section 308 IPC.
On the other hand, it was contended by Ld.Counsel for the accused that the accused has been falsely implicated in this case. Firstly, there are material contradictions in the statements of PW-1 & PW-2 and the benefit of the same should be given to the accused. Further the case of the prosecution is liable to fail for want of examination of injured as well as non recovery of weapon of offence. The MLC proved on record is unnamed and it can not be said that it is the MLC of injured of the case.
8. In this case there are two main witnesses, i.e PW-1 Sharif and PW-2 Sagir. Both these witnesses are the eye witnesses in this case. Perusal of their statements shows that both the witnesses are consistent on their stand in whole of the examination. Both the witnesses categorically stated that on 02.04.2005 at about 5.30 p.m they were sitting near parking, where two persons started quarreling and abusing with each other and accused Hari State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.8 of pages 16 Om @ Vicky snatched the cricket bat from one child, who was playing nearby park and hit the same on the head of one person namely Rashid, whose name they came to know later on. The accused, thereafter, fled away and they both apprehended and handed over the accused to the police.
The aforesaid testimonies of PW-1 & PW-2 have established that the accused Hari Om @ Vicky gave a bat blow on the head of injured Rashid due to which he sustained injuries. They both even correctly identified the accused in the court as the assailant. Their testimonies can not be disbelieved as they are not related to the injured Rashid nor any enmity has been established on record between the accused and PW-1 & PW-2. Moreover, they being the tonga puller having not known the injured as well as the accused earlier are the most natural witnesses which is reflected from the fact that when the injured was got admitted in the hospital in semi conscious condition, the MLC was recorded as the MLC of an State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.9 of pages 16 unknown person.
It is the contention of Ld. Defence counsel that the MLC proved on record Ex.PW7/B is unnamed and in the circumstances when the injured has not been examined by the prosecution, so it can not be said that the case of the prosecution is proved and the MLC Ex.PW7/B pertains to the injured of this case.
To appreciate the contention, it is necessary that the chain of the situation/incident is to be seen. In this case as per prosecution on 02.04.2005 at about 5.30 p.m near K Block Jhuggies in parking behind Hospital, Seelampur, Delhi the injured Rashid was given cricket bat blow by the accused Hari Om @ Vicky and thereafter, the accused was taken to the hospital by the police officials to the GTB Hospital and the date and time of examination mentioned in the MLC is 02.04.2005 at 6.30 p.m. In this case giving of cricket bat blow at the aforesaid date, time and place has been established by the testimonies of PW-1 & PW-2. Even in their testimonies, PW-1 & PW-2 State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.10 of pages 16 have stated that they came to know the name of injured later on. It means at the time of incident and taking the injured to the hospital by the police officials, no one was having the knowledge about the name of injured. Even in the MLC Ex.PW-7/B, it has been mentioned that the unfit for statement. Even PW-7 Dr. P. Ram has confirmed that the injured was in semi conscious condition at that time. All these coupled with the testimony of IO, who has confirmed that he received the MLC of the injured, his identify was not disclosed at that time and was declared unfit for statement, established that it was the injured Mohd. Rashid, who had sustained the said injuries on the given date, time and place.
9. It was further contented by Ld. Defence Counsel that the weapon of offence i.e. cricket bat has not been recovered and produced in the court and therefore, the prosecution case becomes doubtful.
Admittedly, in this case, the weapon of offence i.e. cricket bat was not recovered and produced in the court. State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.11 of pages 16 It is the case of the prosecution that the bat could not be recovered as the same was taken away by some child.
Now, the question is that whether the non-recovery of the weapon of the offence is fatal to the prosecution case. In my considered opinion, the non-recovery of weapon is not fatal to the prosecution case. In this regard, I am supported by the following judgments:-
The Hon'ble Supreme Court of India in a case titled as Lakhan Sau vs. State of Bihar reported as 2000 Cr.L.J.-2959 ( SC) has observed that non-recovery of weapon does not detract from the case of the prosecution, where the direct evidence is acceptable.
The Hon'ble Supreme Court of India in a case titled as Krishna Mochi Vs. State of Bihar reported as ( 2002)6 SCC-81 has observed that recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate the accused from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.12 of pages 16 witnesses, whose evidence has been found to be unimpeachable.
In the present case, the ocular evidence of the PW-1 & PW-2 are consistent that the accused had given bad blows to the injured Rashid and therefore, in view of the judgments Lakhan Sau vs. State of Bihar reported as 2000 Cr.L.J.-2959 ( SC) and Krishna Mochi Vs. State of Bihar reported as ( 2002)6 SCC-81 (supra ) non-recovery of bat is not fatal to the prosecution case. Therefore, the contention of Ld. Defence Counsel is without any merit.
10. The factum of registration of FIR has been established on record by the Duty Officer i.e. PW5 HC Salauddin, who had recorded DD no.35B and proved the same as Ex.PW4/A and copy of FIR as Ex.PW4/B. Further the factum of apprehension of the accused and handing over him to the IO by PW-1 & PW-2, who have also proved the factum of arrest of accused and conducting his personal search by identifying their signatures as a State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.13 of pages 16 witnesses on the Arrest Memo and Personal Search Memo Ex.PW1/B & Ex.PW1/C respectively at points A & B. The IO has confirmed that when he reached at the spot, the injured was already removed to the GTB Hospital and he obtained the MLC of injured upon which he was declared unfit for statement. PW-7 Dr. P. Ram, CMO from GTB Hospital, who proved the MLC bearing No.A-1219/05 of unknown person as Ex.PW7/B, who was medically examined by Dr. Kaushik Handique under his supervision. PW-6 Dr. Mohit Kumar Joshi, Asstt. Professor, Surgery, GTB Hospital, who opined the nature of injury, on the MLC bearing No.A-1219/05 to be simple in nature vide his endorsement Ex.PW5/A. The medical evidence i.e. PW-8 Dr. Hompriya, SR (Neuro Surgery Department) from GTB Hospital identified the handwriting and signature of Dr. Shaiwal (as per record) as Ex.PW8/A at point A.
11. All these facts supports the story of the prosecution that the occurrence was actually witnessed by PW-1 & PW-2, the natural witnesses, and they have narrated the State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.14 of pages 16 incident in the most natural manner. Although, there are certain mutual contradictions in their respective statements like as per PW-1 the occurrence/ quarrel last for 15 minutes, whereas according to PW-2 it lasted for 30-45 minutes etc. and there are improvements too in their testimonies recorded before the court with the statements recorded U/s 161 Cr.P.C, but they are immaterial as they are bound to occur by the passage of time and in the circumstances where the witnesses are illiterate persons, these infirmities can be ignored. Similarly, the infirmities pointed out by Ld. Defence counsel in the statement of IO regarding the dates etc. are also insignificant being the typographical errors. Further the contention of Ld. Defence Counsel that the accused was falsely implicated in this case is not acceptable in the circumstances when no evidence in the support of said claim has been produced by the accused. On the other hand the statements of PW-1 and PW-2 are consistent and corroborative. There are no infirmities in State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.15 of pages 16 their statements. Nothing could come out in their cross examination which could shake their credibilities.
12. In view of above, I am of the considered opinion that prosecution has been successful in proving that on the day of the incident i.e. 02.04.2005 at about 5.30 p.m accused Hari Om @ Vicky gave cricket bat blows on the head of injured Rashid knowing fully well that the death of injured could be occurred by his such act. Thus, the accused is held guilty for the offence punishable under section 308 IPC and convicted thereunder.
13. Accused be heard separately on the point of sentence.
Announced in open Court on 27th February' 2012 (RAKESH KUMAR) Addl. Sessions Judge (NE) Karkardooma Courts, Delhi State V/s Hari Om @ Vicky (SC No:29/11) D.O.O. 27.02.2012 Page no.16 of pages 16