Delhi District Court
-1- State vs . Tenzing Nagwang Etc. on 23 December, 2009
-1- State Vs. Tenzing Nagwang etc.
FIR No. 331/2007, P.S. Timarpur
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 152/1/09
State
Versus
1- Tenzing Nagwang S/o Shiring Diyas,
R/o H.No. 133, Block-7, Tibatan Colony,
Delhi.
2- Tenzing Chomel S/o Daula Shring,
R/o Bhagwandas Gali, House of Donga,
New Block, Punjabi Basti,
Majnu Ka Tilla, Delhi.
3- Tenzing Niyma S/o Dawa Singhtasi,
R/o House Devi, Punjabi Basti,
Majnu Ka Tilla , Delhi.
(i)Case arising out of FIR No. 331/07
U/S: 307/323/506/34 IPC
P.S. Timarpur
(ii) Date of FIR 15/06/07
(iii) Date of Institution 18/09/07
(iv) Date of Final Arguments 23/12/09
(v) Judgment reserved on 23/12/09 ( After 2 pm)
(iv) Date of judgment 23/12/09 (After 4 pm)
JUDGMENT
This judgment shall dispose of case against all the aforesaid accused accused persons in case FIR No. 331/07, P.S. Timarpur, u/s 307/34 IPC titled as State Vs. Tenzing Nagwang and others.
Contd..........
-2- State Vs. Tenzing Nagwang etc.
FIR No. 331/2007, P.S. Timarpur
The charge framed against the accused persons are that on
14.6.2007 at about 10 pm at Tibbati Colony, Majnu Ka Tilla they all the aforesaid accused persons in furtherance of their common intention caused injury to Norbo Tshering with such intention and knowledge that if by that act death of Norbo Tshering had occurred and they all would have been guilty of murder and committed offence punishable u/s 307/34 IPC.
In nutshell the prosecution story are that on 15/06/2007 on receipt of DD No.5B SI Pratap Singh along with Ct. Anil reached at Parmanand Hospital where injured Norbo Tshering was found and his MLC was prepared by doctor. He was declared unfit for statement. After some time his friend Tashi Tshering found, his statement was recorded vide Ex PW7/A. Tashi Tshering disclosed name of aforesaid three assailants. Then IO SI Pratap Singh, prepared Tehrir Ex PW7/B, gave rukka/Tehrir to Constable Anil who went to the PS. IO SI Partap Singh also prepared Site Plan at the instance of Tshering vide Ex Pw7/C. Ct. Anil came back at the spot alongwith original Tehrir and copy of the FIR and gave the same to the Investigating Officer, then police team searched for the accused persons and at the identification of Tashi Tshering arrested accused Tenzing Nagwan, Tenzing Nigma, and Tenzing Chomel vide arrest memos Pw6/A to Pw6/C and there personal search conducted vide memo PW6/D to PW6/F as well as disclosure statement of accused persons Pw6/F-1 to Pw6/H was also Contd..........
-3- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur recorded. Accused persons were produced before the court and PC remand of one day of Tenzing Nagwang obtained. IO SI Partap Singh had also collected the Pulanda of blood stained cloth of injures prepared by doctor of Sant Parmanand hospital which was seized vide memo PW6/J. On 16/06/2007 accused Tenzing Nagwang took the police party to near Ramdev Mandir at Majnu Ka Tila and got recovered 'Khukri' like knife from behind the Jangle, sketch of which Ex Pw6/D was prepared and it was sealed in a Pulanda with the seal of PS and seized vide seizure memo Pw6/I. IO SI Pratap Singh also recorded statement of witnesses and deposited the Pulanda in Malkhana as well as also collected the MLC of injured from Parmanand hospital vide Ex Pw3/A. The pullandas were also sent to CFSL Calcutta through Ct. C J Roy and after completion of investigation the challan was filed. CFSL report vide Ex. PW7/E and PW7/F was filed. The clothes of victim same are collectively Ex P1 and one Khukri was exhibited vide Ex P2.
On the basis of investigation as carried out by the police and document placed on record as well as the statement recorded u/s 161 Cr.P.C, the charge was framed against the accused persons u/s 307/34 IPC. All the accused wanted to contest the case.
In order to establish the case by prosecution have to examine injured Norbo Tshering and complainant Tashi Tshering, however, both the Contd..........
-4- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur witnesses are not turned up despite several efforts were made to summon them by different agency. The other witnesses are examined are:
PW1 Anil Kumar has worked as MHC(M) and deposing about receiving four pullandas vide two recovery memos sealed with seal of PS which he entered at Sl. NO. 3452 and 3455 respectively. He further deposed that the sealed pullandas and one sample seal are sent to CFSL through Ct. C.J. Roy vide R.C No. 156/21.
PW2 Ct. C.J. Roy stated regarding depositing of the Pullandas in the CFSL through road certificate.
PW3 Dr. Sunil Sharma CMO in Parmanand Hospital and examined injured Norbo Tshering and proved the M:C Ex. PW3/A and referred the patient to Surgeon.
PW4 Dr. P. Pradhan has also examined the patient vide MLC No. 1229/07 and opined that the external injuries were simple in nature and proved his report vide Ex. PW4/A. PW5 HC Chhida Singh is the Duty Officer posted at P.S. Timarpur on the date of incident and proved the copy of FIR vide Ex. PW5/a and his endorsement on the rukka vide Ex. PW5/B. PW6 Ct. Anil Kumar and IO PW7 SI Partap Singh are the witnesses of the investigation and deposed the similar story as discussed in Contd..........
-5- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur the preceding para's of the judgment and also deposed about the preparation of the document prepared during the course of investigation.
Since both the material witnesses i.e. complainant and injured has not been turned up despite ample opportunity and efforts, hence the prosecution evidence was closed.
Statement of accused persons was recorded u/s 313 Cr.P.C. Whatever the evidence on record has been put to the accused persons, to which they have denied the same as false and incorrect and also deposed that they have been falsely implicated in this case. All the accused did not opt to lead any evidence in their defence.
I have heard Ld. APP for State and Ld. Counsel appearing on behalf of accused persons and also carefully gone through the material on record.
The essential ingredients required to be proved under section 307 IPC are as follows :-
i) That the death of a human being was attempted.
(ii) That such death was attempted to be caused by, or in consequence of, the act of the accused.
Contd..........
-6- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur
(iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as ;
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. In order to attract application of section 307, it was necessary to establish that if the victim would have met his death, the offence would have been one under section 302 IPC. An attempt to commit a crime is an act done with intention to commit that crime, and would constitute its actual commission, if not interrupted. To justify a conviction under this section, it was not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and Contd..........
-7- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur may even in some cases, be ascertained without any reference at all to the actual injury sustained.
It is sufficient if the act was one capable of causing death and there was an intention to cause death. A person commits an offence under section 307 when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the act whether that act was the penultimate act thereof. The doctor who had examined various injured persons had not given any finding that the act would have caused death, but for an interruption. Material in that regard is squarely absent. Therefore, the conviction under section 307 IPC cannot be maintained. The section refers to causing of grievous hurt by means of corrosive substance.
To justify conviction under section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from the circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Contd..........
-8- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. When the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It was sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of section 307 IPC. The determinative question is intention or knowledge, as the case may be and not nature of injury.
In case titled as State of U.P. Vs Bhagirath, 2004 Cri LJ 2405 at 2408 (All), it was observed that the injured had sustained nine injuries which show accused's intention. Two of the injuries were on right and left side scalp, which had caused fracture at the junction of occipital bone and parietal bone and there was also fracture of ulna bone in lower the third region.
Contd..........
-9- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur From the aforesaid discussion and the material on record as stated earlier that the star witness of the case i.e. complainant Tashi Tshering and injured Norbo Tshering who are also the eyewitness of the case of the prosecution has not been examined in this case despite several opportunity and efforts done by serving the summons through different agency as well as by hand through IO. The other witnesses are the witnesses of investigation done in this case and the doctors who has examined and injured. There is no other i ndependent witness in the present case.
Hence in view of above discussion , facts and circumstances of the case since both the star witnesses are not being examined by prosecution, therefore, prosecution measurable failed to prove its case against all the accused persons. Accordingly all the accused persons namely Tenzing Nagwang S/o Shiring Diyas, Tenzing Chomel S/o Daula Shring and Tenzing Niyma S/o Dawa Singhtasi are hereby acquitted. Their bail bonds are cancelled. Sureties are discharged. The accused persons who are in J/C be released forthwith , if not wanted in any other case. Case property be disposed of in accordance with law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 23.12.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI
-10- State Vs. Tenzing Nagwang etc. FIR No. 331/2007, P.S. Timarpur