Delhi District Court
State vs Ashok Kumar on 24 July, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
DISTRICT SAKET COURTS: DELHI
S.C. NO. 23/2019
FIR NO. 403/2016
PS BADARPUR
U/S. 308/427 IPC
CNR : DLSE-01000267-2019
THE STATE
VERSUS
ASHOK KUMAR
S/O SH. GOVIND RAM
R/O H. NO. 380, MAIN MATHURA ROAD,
BADARPUR, NEW DELHI ..... accused
Date of Institution : 09.01.2019
Order reserved on : 22.07.2024
Order delivered on : 24.07.2024
JUDGMENT
1. The accused Ashok Kumar is facing trial for the offences u/s. 308/427 of the Indian Penal Code, 1860 (in short 'IPC').
Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:34:52 +0530 SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 1 of 25 BRIEF FACTS
2. The case of Prosecution is that on 06.10.2016, DD No. 38-A was assigned to HC Subhash Chand and he alongwith Ct. Virender reached at the spot i.e. HDFC Bank, Badarpur where they came to know that injured was shifted to hospital. In the meantime, he received another DD No. 41A regarding MLC of the injured at Apollo hospital and he went to Apollo hospital and collected his MLC who was found to be not fit for statement. On 07.10.2016, complainant/ injured Sanjeev came to PS and gave his statement that on 06.10.2016 at about 4.30 PM accused Ashok came at his shop i.e. K. P. Photo Studio shop no. 150, main market Badarpur since he had given his mobile for repair about four months back; that he was not able to repair his phone due to which he had some altercation with accused; that accused consequently lost his temper and broke the mirror installed on the wall of the shop as well as his mobile phone and the computer kept on the counter; that accused also broke the glass door of the main gate by hitting the same on the wall; that he picked up his cash box and hit the same on the glass door due to which it was broken; that thereafter accused Ashok picked up a piece of broken glass and hit the same on his head due to which he sustained injury and blood started oozing from his head; that accused was about to insert a piece of glass in his abdomen but was prevented from doing so by his family members; that he called the police at 100 number. On the basis of said complaint/ injured, the present FIR was registered. After completion of the Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:35:26 +0530SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 2 of 25 investigation, charge-sheet was filed against the accused u/s 308/427 IPC.
3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions and was assigned to this Court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case against accused, requisite charges U/s. 308/427 IPC was framed against him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case, the prosecution has examined as many as six witnesses.
5.1. PW-1 Sh. Sanjeev Kumar is the complainant/injured. His testimony in detail shall be discussed in the later part of judgment. 5.2. PW-2 ASI Shravan Kumar is the duty officer and he has deposed that "on 06.10.2016, he was working as duty officer and his duty hours was from 04:00 PM to 12 midnight and on that day at around 04:55 PM, he received a call from the control room recording the incident and thereafter he had registered a DD No. 38 A dated 06.10.20216 Ex. PW2/A (OSR); that the said call was marked to HC Subhash; that on same day at around 06:00 PM, he received a call from the control room regarding the incident and SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 3 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:35:44 +0530 thereafter he had registered a DD No. 41 A dated 06.10.20216 Ex. PW2/B (OSR); that the said call was marked to HC Subhash; that on 07.10.2016 at around 04:15 PM, he received a rukka from HC Subhash Chand and on the basis of rukka, he registered the present FIR No. 403/16 PS Badarpur u/s 308/427 Ex. PW2/C (OSR); that he made endorsement on the rukka Ex. PW2/D; that he also issued a certificate u/s 65 B of the Indian Evidence Act Ex. PW2/E; that after registration of FIR, further investigation was marked to SI Rajender". He was cross-examined by Ld. Defence counsel. 5.3. PW-3 Dr. Apurva Sharma has proved the MLC of the injured which is Ex.PW3/A. As per MLC report, the victim sustained injury on the top of the head and there was a cut mark (big deep clean laceration wound) (Y type cut mark) on the top of his head and the victim/ injured was conscious at that time. He was cross-examined by Ld. Defence counsel.
5.4. PW-4 HC Tinku is the police witness and he has deposed that "on 07.10.2016, he was on patrolling duty in his beat area; that at about 06:30 PM, when he reached at chowk at shop no. 150 of Badarpur market, IO/SI Rajender alongwith HC Subhash and one person namely Sanjeev met him; that thereafter IO/SI Rajender told about the injury/ killing with Sanjeev; that thereafter complainant Sanjeev shown to one person who was standing at Majaar of Peer baba and told that he is the person who hit him with glass; that thereafter they apprehended the accused Ashok Kumar; that thereafter, IO arrested the accused vide arrest memo already Ex.
SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 4 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:36:03 +0530 PW1/C; that IO also conducted personal search and also recorded disclosure statement of the accused; that thereafter he alongwith accused Ashok Kumar went to the AIIMS Hospital for his medical examination; that after medical examination of accused Ashok Kumar, accused was kept in police lockup". He was cross-examined by Ld. Defence counsel.
5.5. PW-5 ASI Subhash Chand is the first IO of this case and he has deposed that "on 06.10.2016, he was on emergency duty and after receiving PCR call vide DD No. 38A regarding beating of one person, he alongwith Ct. Virender went to the spot i.e. HDFC ATM, Badarpur where they came to know that injured was shifted to hospital; that thereafter, he tried to know about the incident but no eye witness met him at the spot; that thereafter he received information through DD No. 41A regarding MLC from the Apollo hospital and he alone went to the Apollo hospital where he met the concerned doctor and collected the MLC of injured Sanjeev and doctor opined him as fit for statement; that thereafter he met injured Sanjeev and asked him to give statement however he refused to give statement by saying that he was having pain; that thereafter he came to PS and the DD was kept pending; that on 07.10.2016, complainant Sanjeev came to PS and gave his statement Ex.
PW1/A; that thereafter he prepared endorsement on the basis of said complaint Ex. PW5/A; that thereafter FIR was registered in the present case and further investigation was marked to SI Rajender Singh; that thereafter he alongwith SI Rajender and victim went to SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 5 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:36:12 +0530 the spot i.e. photography shop of complainant Sanjeev which is in the basement of HDFC ATM, Badarpur; that after reaching there, IO prepared the site plan at the instance of complainant Sanjeev; that IO collected and seized the broken glass which was lying in the shop of complainant; that IO prepared the seizure memo regarding the seizure of broken glasses Ex. PW1/B; that thereafter they searched the accused; that in the meantime, Ct. Tinku Yadav who was the beat constable also met them and when they went near the Mazaar, complainant Sanjeev shown to one person who was standing at Majaar of Peer baba and told that he is the person who hit him with glass; that thereafter we apprehended the accused Ashok Kumar; that thereafter IO arrested the accused and arrested him vide arrest memo Ex. PW1/C; that IO also conducted personal search of the accused vide memo Ex. PW5/B; that IO also recorded disclosure statement of the accused vide memo Ex. PW5/C; that IO also prepared the pointing out memo at the instance of accused Ex. PW5/D; that thereafter accused Ashok Kumar was sent to the AIIMS hospital for medical examination with Ct. Tinku Yadav; that thereafter he alongwith IO went to the police station and case property i.e. broken glass was kept in malkhana; that IO recorded his statement in this regard". He was cross-examined by Ld. Defence counsel.
5.6. PW-6 SI Rajender Singh is the 2nd IO of this case and he has deposed that "on 07.10.2016, the investigation of the present case was assigned to him and after the registration of FIR, the then duty SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 6 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:36:23 +0530 officer of PS Badarpur handed over the copy of FIR and original rukka to me; that thereafter he alongwith HC Subhash and complainant Sanjeev went to the spot i.e. KP photo studio main market Badarpur; that he had prepared the site plan at the instance of complainant Ex. PW6/1; that complainant Sanjeev also handed over one piece of glass which was broken by the accused and caused injury to him by the said piece of glass and he had seized the same vide seizure memo Ex. PW1/B; that in the meantime, HC Tinku also reached at the spot; that thereafter he alongwith HC Subhash, HC Rinku and complainant went near the Peer Baba Mazar, Badarpur for the search of the accused; that complainant had pointed out one person who was standing near the residential house which is situated near the Peer Baba Mazar, Badarpur by saying that that persons is the same person who had caused injury to him; that he with the assistance of the police official apprehended him; that on inquiry, he admitted his guilt and disclosed his name as Ashok Kumar; that thereafter they went to the spot and he had prepared the pointing out memo at the instance of the accused Ex. PW5/B; that thereafter he had arrested the accused and conducted his personal search vide memos Ex. PW1/C and Ex. PW5/B; that he had also recorded the disclosure statement of the accused vide statement Ex. PW5/C; that after the completion of medical examination of accused, he had produced the accused before the Concerned Court on the next day and thereafter he was sent to Judicial Custody; that he had recorded the statements of the witnesses as stated by them; that thereafter I SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 7 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:36:34 +0530 had prepared the chargesheet before the Concerned Court for judicial verdict after obtaining the opinion on the MLC of the injured" He was extensively cross-examined by Ld. Defence counsel.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all the incriminating material was put to the accused under Section 313 Cr.PC. He pleaded innocence and stated that he has been falsely implicated in the present case; that he had given his mobile phone to the complainant for repairing but he did not return the same on time and when he requested him to return his phone, he hit his phone on his glass counter; that thereafter complainant followed him in order to beat him and when he was coming out from the shop, complainant accidentally hit with the glass door and he sustained injury; that he did not cause any injury to the complainant. Though, the accused took the plea of being innocent in his statement u/sec. 313 Cr.P.C. but did not prefer to lead any defence evidence and matter was fixed for final arguments.
ARGUMENTS
7. I have heard the Ld. Addl.P.P. for the State and Ld. Counsel for the accused and perused the material on record. Ld. Addl. P.P. argued that PW-1 Sh. Sanjeev Kumar has fully supported the case of prosecution and had identified the accused as well as the weapon of offence before the Court; that PW-1 had also explained the manner of commission of offence during the course of his testimony before the Court; that PW-1 also deposed about the motive of the accused SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 8 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:10 +0530 as to why accused had committed the alleged offence; that PW-3 Dr. Apurva Sharma has proved the MLC of the injured and deposed about the injury of the injured; that no improvement/ contradiction was established before the Court qua the testimony of PW-1; that the injury was caused to the injured on his head which is the vital part of the body and the weapon of offence which was used by the accused is also dangerous weapon; that the accused had caused damages of his mobile phone shop. Therefore it is prayed to this Hon'ble Court that accused be convicted for the offence punishable u/s 308/427 IPC.
7.1. Per contra it has been argued by Ld. Counsel for the accused that there is unexplained delay of one day in lodging of FIR; that as per the allegation incident occurred on 06.10.2016 at about 04:45 PM whereas FIR was registered on 07.10.2016 at about 04:15 PM; that as per complaint incident occurred at about 04:45 PM on 06.10.2016 whereas complainant i.e. PW-1 during his testimony before this Hon'ble Court deposed that incident occurred at 04:30 PM on 06.10.2016; that as per prosecution story, accused had given his mobile phone to injured/ complainant for repairing four months ago of date of incident which was not repaired by the complainant by the day of incident upon which accused became angry and started abusing the complainant and thereafter caused injuries upon the complainant whereas the complainant during his testimony deposed that earlier the accused got repaired his mobile phone from him and on the day of incident, he again came with that mobile SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 9 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:21 +0530 phone and when the complainant refused to repair the same, accused became angry and started abusing him and also caused injuries upon the complainant; that during the testimony of complainant, he deposed that the accused was about to hit a piece of glass in his stomach but he was caught hold by his family members but this fact is not mentioned in the complaint anywhere; that the weapon of offence was not sent for FSL; that measurement of weapon of offence i.e. piece of glass is two feet long and more than six inch width and the injuries sustained by the complainant are not possible with alleged weapon of offence; that there is no corroborative evidence on record or any independent witness to support the version of the complainant despite the fact that place of incident is situated in crowded market; that as alleged by the complainant, articles of his shop were broken by the accused but IO has not seized any such article which prove the false allegation of the complainant; that the complainant himself is a criminal minded person and facing the trial of murder before this Hon'ble Court itself; that the complainant sustained injuries when he was following the accused to beat him and suddenly collided with main gate of his office; that during the testimony of the complainant, he has stated that he had called the family members of the accused but during cross-examination he stated that he did not call any family member of the accused and mother and nephew of accused had arrived at the spot; that during the cross-examination of complainant he has stated that accused was not arrested in his presence but arrest memo bears SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 10 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:31 +0530 the signature of the complainant.
8. The charge u/s. 308/427 IPC was framed against accused in the present case on the basis of the complaint made by Sh. Sanjeev Kumar. For the purpose of convenience the relevant sections are reproduced below:
8.1. Section 308 IPC deals with attempt to commit culpable homicide. The essential ingredients required to be proved in the case of an offence u/s. 308 IPC are:-
(1) That the accused did an act.
(2) That it was done:-
(i) with the intention, or
(ii) with the knowledge;
(a) of causing death;
(b) causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused; or
(c) of causing bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death; or
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death; that the act attempted was committed without any excuse for incurring the risk of causing death of such injury as aforesaid;
To which may be added the following aggravating circumstances:
(3) That the act caused hurt to the person by the act aforesaid. And if (3) is proved, proof of the following further aggravating circumstance is admissible;
(4) That the accused was then under sentence of imprisonment SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 11 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:41 +0530 for life.
8.2. Section 427 IPC:- Mischief causing damage to the amount of fifty rupees. Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 8.3. The word 'Mischief' is defined under Section 425 IPC which necessitate three things:
(1) An intention or knowledge of likelihood to cause wrongful loss or damage to the public or to the any person.
(2) Causing the destruction of some property or any in it or in situation and, (3) Such change must destroy or diminish its value or utility or affect it injuriously.
8.4. The points requiring proof u/s 427 IPC are the same as for offence u/s 426 of the IPC except for clause (5) of which to prove:-
(1) That thing in question was property. (2) That the accused caused its destruction of such change therein, or in the situation thereof, as has destroyed or diminished its value or utility, or affected it injuriously.
(3) That the accused did so intending, or knowing that he was likely to cause loss or damage to the public or to any person.
(4) That such loss or damage was wrongful.
SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 12 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:49 +0530 (5) That the loss or damaged amounts alteast to Rs. 50/-.
9. Coming to the offence punishable u/s. 308 IPC, the case of prosecution is that accused assaulted the complainant Sanjeev Kumar with a piece of glass resulting in injuries on his head with such intention or knowledge and under such circumstances that if by said act, he has caused death of injured/complainant, he would have been guilty of culpable homicide not amounting to murder. In order to prove its case the prosecution has examined the complainant/injured Sanjeev Kumar.
9.1. It is well settled law that while appreciating the evidence of witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter should not ordinarily permit rejection of the evidence as a whole (Reliance placed on the judgment of Hon'ble Supreme Court of India in State of UP vs Krishna Master & Ors, decided on 03/08/2010 in Crl. Appeal No. 1180/2004).
SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 13 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:37:57 +0530 OCULAR EVIDENCE
10. I now proceed to analyse the testimony of eye witness/injured in the present case. Complainant/ injured Sh. Sanjeev Kumar is the star witness of the present case and he was examined as PW-1. He has deposed that "he had been running a shop of photography and mobile phone repairing at shop no. 150, main market, Badarpur below the HDFC ATM; that on 06.10.2016 at about 4.30 PM he was present at his shop then accused Ashok came at his shop; that earlier the accused Ashok got repaired his mobile phone from his shop and on that day he again brought the same phone for repair but he refused to repair the same and asked him to get it repaired somewhere else; that on this accused Ashok Kumar became angry and he started abusing him; that accused Ashok Kumar broke his computer, camera, glass of his counter and he picked up his cash box and hit the same on the glass door which was broken; that thereafter accused Ashok picked up a piece of broken glass and hit on his head due to which he sustained injury and blood started oozing from his head; that he was about to insert a piece of glass in his abdomen but he was caught hold by his family members and he called at 100 number. He was cross-examined by the Ld. Defence Counsel.
10.1. With regard to evidentiary value to be attached to testimony of an injured witness, it would be worthwhile to consider the principles of law laid down by the Hon'ble Apex Court. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 the Hon'ble SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 14 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:38:06 +0530 Supreme court made the following observations:
"Injured witness
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
10.2. In Abdul Sayeed v. State of M.P., (supra), the Hon'ble Supreme Court also reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments and noted the decision in Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235: 1994 SCC (Cri) 1694] wherein it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. The Hon'ble Supreme Court further observed as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 15 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:38:16 +0530 accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
10.3. The testimony of the witness has to be examined in light of the law discussed herein-above. The case of the complainant is that accused came to his shop for getting his mobile phone repaired and when he refused to repair the same, he got enraged and damaged his property. Not only that accused caused injuries on his head with broken piece of glass. In the words of complainant, he has deposed that "on 06.10.2016 at about 4.30 PM he was present at his shop then accused Ashok came at his shop; that earlier the accused Ashok got repaired his mobile phone from his shop and on that day he again brought the same phone for repair but he refused to repair the same and asked him to get it repaired somewhere else; that on this accused Ashok Kumar became angry and he started abusing him; that accused Ashok Kumar broke his computer, camera, glass of his counter and he picked up his cash box and hit the same on the glass door which was broken". No suggestion was given in his cross-examination that accused did not visit the shop of the complainant on the alleged date of incident rather the fact is not disputed as apparent from the cross-examination of PW-1. During SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 16 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:38:26 +0530 the course of arguments, it was submitted by Ld. LAC for accused that as per the story of the Prosecution, accused gave his mobile phone to injured/ complainant for repairing four months ago of date of incident which was not repaired by the complainant by the day of incident upon which accused became angry and started abusing the complainant and thereafter caused injuries upon the complainant whereas the complainant during his testimony deposed that earlier the accused got repaired his mobile phone from him and on the day of incident he again came with that mobile phone and when the complainant refused to repair the same, accused became angry, started abusing and cause injuries upon the complainant. The contradiction so indicated is not such which belies the whole case of Prosecution as apparent from the cross-examination of PW-1. He has stated in his cross-examination that " accused Ashok had got repaired his mobile on an earlier occasion about 15-20 days prior to the date of incident; that at that time the mobile brought by accused Ashok was not getting on; that on his second visit, the said mobile was having the same very problem; that he had refused to repair the said mobile on the second occasion, as the mobile brought by accused Ashok for repair was an old chinese mobile and it was getting the same problem time and again". The said cross- examination established the fact of repairing of the mobile phone of the accused who indeed again visited the shop of the complainant regarding the problem of his mobile phone and the fact that the mobile phone was given for repair four months back or accused SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 17 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:38:55 +0530 produced the same on the date of incident is not such that will question the whole story of the prosecution. In view of the said discussion, it stood established that accused infact visited the shop of the complainant on the date of incident. 10.4. Regarding the injury, PW-1 has deposed that "accused Ashok Kumar broke his computer, camera, glass of his counter and he picked up his cash box and hit the same on the glass door which was broken; that thereafter accused Ashok picked up a piece of broken glass and hit on his head due to which he sustained injury and blood started oozing from his head". 10.5. In order to prove the injuries, the Prosecution examined Dr. Apurva Sharma as PW-3 and he has deposed that he prepared the MLC of injured/ victim i.e. PW-1 Sh. Sanjeev Kumar Ex.PW3/A. As per MLC, the victim sustained injury on the top of the head and there was a cut mark (big deep clean laceration wound) (Y type cut mark) on top of his head and the victim/ injured was conscious at that time. Henceforth PW-3 has successfully proved that PW-1 sustained injury on the top of his head which cannot be said to be self-inflicted from any angle. No suggestion was given to the witness from the side of the accused that the injury was self-
inflicted. Rather it is not possible that a person can cause injury on his own on the top of his head. On the other hand, the suggestion coming from the side of the accused is that the injury may be possible by falling which is contrary to the plea taken u/s 313 Cr.P.C.
Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:04 +0530 SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 18 of 25 DEFENCE OF THE ACCUSED
11. In his statement u/s. 313 Cr.PC, the accused has stated that he is innocent and has been falsely implicated in the present case; that he had given his mobile phone to the complainant for repairing but he did not return the same on time and when he requested him to return his phone, he hit his phone on his glass counter; that thereafter complainant followed him in order to beat him and when he was coming out from the shop, complainant accidentally hit with the glass door and he sustained injury; that he did not cause any injury. On the other hand it was suggested to the expert witness i.e. PW-3 Dr. Apurva Sharma that the injury may also be possible by falling. The suggestion given to the expert witness i.e. PW-3 Dr. Apurva Sharma is not in consonance with the plea taken u/s 313 Cr.P.C. In view of the aforesaid, it stands proved that accused visited the shop of the complainant and caused injuries on his head with a piece of glass.
11.1. Now the question is that whether the conviction can be sustained under section 308 IPC on the basis of the evidence led in the present matter. All the ingredients of section 308 IPC ought to be fulfilled before the conviction can be sustained under section 308 IPC. In order to secure conviction under section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide which in turn can be ascertained from the actual injury as well as from other surrounding SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 19 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:13 +0530 circumstances. Reliance placed on judgment passed by the Hon'ble Supreme Court of India in case titled as Roop Chand @ Lala Vs. State (NCT) of Delhi passed in Crl. Appeal No. 2204/2010. 11.2. In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. It was observed by the Hon'ble Apex Court in Narinder Kaur Oberoi v. State 2015 SCC Online Del. 7864 that "Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 308 IPC.
It depends upon the facts and circumstances of each case whether the accused had the requisite intention or knowledge......." 11.3. Similarly in Rajiv Sharma v. State, 2015 SCC OnLine Del. 12138 it has been held by the Hon'ble Supreme Court that " To SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 20 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:22 +0530 proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature to cause death, Section 308 IPC would not apply. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive of commission of offence, the nature and size of the injuries, the parts of the body of the victim selected for causing injuries, severity of the blow or blows and the conduct of the accused are important factors which may be taken into consideration in coming to a finding whether in a particular case, the accused can be proceeded under Section 308 IPC."
11.4. In the given facts and circumstances the testimony of the complainant is well supported by the expert witness i.e. PW-3 Dr. Apurva Sharma and the fact that accused assaulted the complainant has been well established. However neither it has been proved that the assault was premeditated or the assault was made with intention SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 21 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:31 +0530 to commit culpable homicide not amounting to murder since it has been deposed by complainant/ PW-1 Sanjeev Kumar that when he refused to repair the mobile phone of the accused, he became angry and attacked him with the piece of glass on his head. Further during the course of cross-examination he has stated that he was hit by the accused with the piece of glass only once and from that it cannot be said that accused assaulted the complainant with such intention of knowledge that it may have caused the death of the complainant. Secondly, PW-3 Dr. Apurva Sharma medically examined the complainant and prepared MLC which is Ex. PW3/A. The MLC describes that the victim sustained injury on the top of his head and there was a cut mark (big deep clean laceration wound) (Y type cut mark) on top of his head and the victim/ injured was conscious at that time. During cross-examination, it was admitted by PW-3 Dr. Apurva Sharma that he did not mention the depth of the injury neither mention the nature of injury as simple, grievous or dangerous. It is further admitted that the patient was not in dangerous stage as per the vitals and sensorium and injury may be possible by blunt force. Moreover the MLC further describes that the patient left the hospital against medical advise from which it can be safely deduced that the bodily injury so caused is not sufficient in the ordinary course of nature to cause death. Hence, the ingredients of section 308 IPC are not fulfilled and the case falls within the ambit of section 323 IPC which deals with punishment for voluntarily causing hurt. Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:40 +0530 SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 22 of 25 11.5. During course of arguments it was submitted by Ld. Defence Counsel that the weapon of offence was not sent for FSL;
that the measurement of weapon of offence i.e. piece of glass is 2'x 6' and the injuries sustained by the complainant are not possible with alleged weapon of offence. However PW-1 has well proved that the injury was caused by a piece of glass. Secondly, PW-3 Dr. Apurva Sharma has also proved that the injury in question was a big deep clean laceration wound and accused has failed to prove that the injury was caused by falling or it was self-inflicted one. In view of the same the fact that injury was caused by a piece of glass has been well established by the testimony of the witnesses. 11.6. It is further argued by Ld. Defence Counsel that there is no corroborative evidence on record or any independent witness to support the version of the complainant despite the fact that place of incident is situated in crowded market. It is a common that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. Hence the case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non joining of public witness. (Reliance placed on judgment titled as Appabhai & Anr. Vs. State of Gujarat, IR 1988 SC 696).
11.7. It was further argued by Ld. Defence Counsel that there is unexplained delay of one day in lodging of FIR; that as per the SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 23 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:39:53 +0530 allegation, incident occurred on 06.10.2016 at about 04:45 PM whereas FIR was registered on 07.10.2016 at about 04:15 PM; that as per complaint, incident occurred at about 04:45 PM on 06.10.2016 whereas complainant i.e. PW-1 during his testimony before this Hon'ble Court deposed that incident occurred at 04:30 PM on 06.10.2016.
11.8. The fact that the incident in question did happen on 06.10.2016 at about 04:30 PM has been well proved by DD no. 38A which records the incident. DD no. 38A records the happening of quarrel near HDFC ATM main market Badarpur on 06.10.2016.
Secondly, DD no. 41A also proved the admission of the complainant in Apollo hospital on 06.10.2016 and the fact that the FIR was registered on 07.10.2016 has been well explained by the complainant himself who has deposed that he did not give statement on 06.10.2016 since he was in pain and no contrary suggestion was given regarding the same. Further the said contradiction so indicated above does not go to the root of matter and do not shake the case of prosecution. The accused failed to indicate any contradiction in the testimony of witnesses regarding the nature of the allegation made against him.
11.9. Coming to the offence u/s 427 IPC, PW-1 has deposed that "accused Ashok Kumar broke his computer, camera, glass of his counter and he picked up his cash box and hit the same on the glass door which was broken". However he has stated in his cross- examination that IO did not seize the broken computers, cameras SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 24 of 25 Digitally signed by GEETANJALI GEETANJALI Date:
2024.07.24 22:40:13 +0530 and cash box from his shop. But he has voluntarily stated that the police had taken the photographs of his shop but no photographs was exhibited during the prosecution evidence. In view of the same, I held that the prosecution has failed to prove that accused voluntarily damaged the glass of the main gate, computers and one glass installed in the shop of the complainant and thereby caused loss to him of the value more than Rs.50/-.
12. In view of the aforesaid discussion, it is hereby held that prosecution has failed to bring home the guilt of the accused for the offence punishable under section 308 IPC and the case falls under section 323 IPC. Henceforth accused is acquitted of offence punishable u/s. 308 IPC and convicted under section 323 IPC. Since Prosecution has failed to prove the charge u/s 427 IPC. Hence he is hereby acquitted u/s 427 IPC.
Typed to the direct dictation and Digitally
signed by
announced in the open court GEETANJALI
GEETANJALI
Date:
on this 24th of July, 2024 2024.07.24
22:40:20
+0530
(Geetanjali)
Addl. Session Judge (FTC)-03
South East District,Saket Courts
New Delhi/24.07.2024
SC No. 23/2019 FIR No. 403/2016 State. Vs. Ashok Kumar Page no. 25 of 25