Delhi District Court
State vs . Tullan Date Of Institution : ... on 10 January, 2012
IN THE COURT OF MS COLETTE RASHMI KUJUR:
METROPOLITAN MAGISTRATE-06, SOUTH EAST
DISTRICT, SAKET COURT, NEW DELHI
State vs. Tullan Date of Institution : 23.02.2007
FIR No. 05/07 Judgment Reserved on: 29.11.2011
PS Sarita vihar Date of Judgment : 10.01.2012
U/s 326 IP C.
JUDGMENT
a) Sr. No. of the case : 43/2
b) Date of offence : 02.01.2007
c) Name of the complainant : Sh. Hukam Chand s/o Nathu Ram
: R/o D-45 old Jasola village,New Delhi
d) Name & address of the : Tullan s/o Rampal r/o D-45 old Jasola
village,New Delhi
e) The offence complained of : U/s 326 IPC.
f) Plea of accused : Pleaded not guilty
g) The final order : Conviction
h) Date of order : 10.01.2012
BRIEF STATEMENT OF REASONS FOR DECISION
1. The complainant Hukum Chand has alleged in his complaint that on 01.01.07 he had gone to the house of his neighbour namely Hari Om where accused Tullan was already present. Accused had taken CD cassette of the complainant some days back, therefore, complainant had asked him to return the same. Accused refused to return the same and also told him to go away from there to which complainant insisted that his cassettes be first returned. On hearing this accused Tullan picked up a danda lying in the house of Hari Om and gave a danda blow on the eye of complainant due to which he suffered a permanent privation of his eye. Thus accused committed offence u/s 326 IPC. Cognizance of the offence was taken and accused was summoned by the court.
2. As prima facie offence u/s 326 IPC was made out against the accused, charge was framed to which he pleaded not guilty and claimed trial. Thereafter, matter was listed for prosecution evidence.
3. In order to prove its case, prosecution examined a total of seven witnesses. PW1 ASI Gurcharan Singh proved the copy of FIR and exhibited it as Ex. PW1/A and his endorsement on the rukka vide memo Ex. PW1/B.
4. PW2 Hukam Chand deposed that on 02.01.07 at about 11.15 am he had gone to the house of Hari Om for taking back his CD from accused Tullan. According to him accused Tullan was already sitting there, when complainant asked him to return back his CDs, he refused and took out a danda and gave a blow with it on the left eye of the complainant. Due to this blow, the left eye of the complainant was totally disabled. Complainant was taken to the hospital by his brother and accused Tullan ran away from the spot. On 04.01.04 police recorded statement of complainant vide Ex. PW2/A.the witness clearly denied having received the injury during a fight with someone else. He correctly identified the accused who he stated to was present in the court. He also denied that he had deposed at the instance of the police officials or that he had not received any injury in his left eye.
5. PW3 HC Natholi proved the DD entry 8 A vide Ex. PW3/A regarding a quarrel.
6. PW4 Amar took his younger brother Hukam Chand to AIIMS hospital on 02.01.2007 where the eye of the complainant was operated at about 11 PM. He deposed that his brother had gone to the house of the accused Tullan for taking back his CD. He ( PW4) was also standing at the door of his house. On hearing the noise/cry of his brother, he opened the door and he saw that his brother was lying on the ground and his brother (complainant Hukam Chand) stated that accused Tullan had caused injury in his eye with danda. He has also correctly identified the accused during his examination before the court. He also stated that police had recorded his statement.
7. In his cross examination he denied that on 02.01.07 he was not present at the spot.
8. PW5 HC Om Pal Singh stated that on 02.01.07 he was on emergency duty from 8 am to 8 PM and at about 11.45 am he received a call regarding a quarrel at D-45 Village Jasola. He along with Ct. Moinuddin reached there and came to know that injured has already been taken to AIIMS hospital by his brother. Thereafter, they reached at AIIMS hospital where injured was being operated upon. On 04.01.07 he obtained the MLC of the injured vide Ex. PW2/A and as per the MLC nature of injury was grievous. He prepared rukka vide Ex. PW5/A and also prepared the site plan Ex. PW5/B. He further stated that on 10.01.07 accused Tullan surrendered himself in the PS and he was arrested vide memo Ex. PW5/C and his personal search was conducted vide memo Ex. PW5/D. The weapon of offence i.e. the danda was also recovered at the instance of the accused from house no. D-42, Old village Jasola, New Delhi which was seized vide memo Ex. PW5/E however no pointing out memo was prepared by him. He correctly identified the accused as well as the danda vide Ex. P1. It has been observed by the then presiding officer that the details of the case such as the FIR number and the sections were not mentioned on the danda at the time when the same was produced before the court.
9. PW-6 Dr. Ashish Dubey stated that injured Hukam Chand was examined vide MLC no. C-19 with the alleged history of assault one hour back while having a fight. During examination he found visual acuity right 6/9 and left eye absent light perception. He stated that in left eye hyphema was present there was fresh bleeding from left eye. Tetanus toxide injection was given. In treatment left evisceration of globe was done on 02.01.07 as due to trauma the globe was severely damaged and it was not possible to do a primary repair and maintain the integrity of eye ball. Hence, evisceration was done as primary surgery with nil visual prognosis. Nature of injuries was grievous.
10. In his cross examination, he stated that the MLC was in his writing. He had deposited the MLC along with other documents in the casualty. He had not handed over any paper to any police official. He had not given any personal opinion to any police officer in respect of this MLC.
11. PW-7 Ct. Mainuddin had accompanied the Head constable to the spot where he came to know that injured had been taken to Hospital by his brother. They went to R.P. Eye Center, AIIMS Hospital. In the hospital, the doctor informed that patient had been shifted to operation theater and the MLC was not yet complete. The DD was kept pending and they came back to PS.
12. As there were no other Prosecution witnesses to be examined prosecution evidence was closed and thereafter, the matter was listed for SA.
13. On 13.04.2011, statement of accused Tullan us/ 313 Cr.P.C. read with section 281 Cr.P.C was recorded in which he denied having caused any injury to the complainant injured. He stated that the 'danda' was planted on him and a false case foisted on him. He further stated that he did not wish to lead defence evidence. Therefore, matter was listed for final arguments.
14. It is argued by the counsel that this is a fit case for acquittal and Several points have been raised by the counsel in his arguments. It is first submitted that the ingredients of the offence under section 326 IPC are not made out, secondly, the date in the rukka has been altered from 3 to 4 January 2007.
15. The MLC does not bear the time or the date of the incident, many of the entries have been left without a remark. It is argued by the counsel for the accused that the MLC is incomplete, it only states that the assault took place one hour back which, information has also been provided by the complainant. Even the accused has not been named by the complainant.
16. The doctor (PW6) who prepared the MLC stated in his cross examination that he cannot say about the date and time of the injury. He states, " I cannot tell the exact time when the injured was admitted in the hospital. It may be 1:00 A.M, 4:00 AM, 10:00 AM, 2:00 PM, 4:00PM on 02.01.2007. the age of the injury when examined by me may be 2 to 4 hours. I cannot say about the date of injury exactly." it is argued that in the age of science and technology the doctor has not specified the date and time of the injury which points to the shabby investigation done by the police and the careless attitude with which the MLC form was filled by the doctor. According to the witness no police personnel came to him for permission to record the statement of the injured on 2.01.07.
17. According to PW4 his brother Hari Om had gone to the house of Tullan at about 11:15 am. Statement of PW 4 is that he saw his brother 'lying on the ground and at that time the accused was having the danda in his hand. The moment I opened the door, Tullan ran away.' The witness took the complainant to the hospital and he was operated at 11:00 pm. The counsel has pointed out that in all probability the injured was taken to the hospital in the morning. That the witness has stated that the police had not inquired anything from him. The counsel goes on to say that if the working hours of the witness are from 9:00- 6:00 pm then there was no chance of this witness being present at the spot.
18. At the same time it is stated by PW 3 that he received information at about 11:35 pm about a quarrel and handed over the inquiry to HC Om Pal. As per the statement of the IO he had received the information at about 11:45 am regarding a quarrel at D-45, Old Village Jasola and he went to the address alongwith Ct. Moinuddin. It was from this address he found that the injured had been taken to AIIMS. The IO however did not disclose the name of the informer. Even Suleman who had informed the IO about the injured being admitted in Rajender Prasad Eye Hospital has not been made a witness.
19. The DD entry does not mention the particulars of the accused, there is no disclosure statement of the accused, the case property has not been sealed properly nor particulars of the case mentioned on it so as to link it to this present case.
20. It was stated by the complainant that he was taken to Rajendra Eye Institute by his brother Amar PW4 but the discharge slip from the said institute has not been filed by the IO. There was no public witness and the accused himself surrendered to the police on 10 th Jan 2007, there was no arrest since the date of incident on 2nd Jan 2007.
21. On the other hand the LD. APP has argued that an offence under section 326 IPC has been committed using a 'danda' which was recovered at the instance of the accused. The seizure memo has been exhibited and is placed on record. The MLC was prepared.
22. The MLC need not contain all the information but only as much as can be gathered at the time. There was also an eye witness PW4 who has been examined by the prosecution and who has supported the prosecution case. As far as his being a chance witness is concerned the witness was working at a cycle repairing shop and the work timings were not fixed.
23. Perusal of file shows that there are certain discrepancies in the statement of the complainant and PW4. Complainant has stated that he had gone to Hari Om's house for taking back his CD and Tullan was already sitting there whereas PW4 states that his younger brother Hari Om had gone to Tullan's house for taking back his CD.
24. In his cross examination PW 5 HC Om Pal Singh stated that he reached at the spot at about 12/12.05 noon time. No eye witness was present there. Stating further that he reached the spot at 6:00pm. Even at that time there was no eye witness but one Suleman met him and told that Hukum Chand is admitted at Rajender Prasad eye hospital. Suleman has not been made a witness by the prosecution.
25. He has clearly stated that he did not go to the house of injured but directly came back to the PS. " Injured was sitting in DO's room. ...I prepared the site plan at the instance of the complainant. I have not obtained the signature of any persons on the site plan present at the spot." The PW however goes on to say that he had visited the spot for preparing the site plan and he had prepared the site plan at 5/5:15 pm.
26. He further stated that he had recovered the weapon of offence i.e. danda at pointing out accused although a pointing out memo was not prepared. At the time of recovery of the weapon 5-6 persons of the family of the accused were present He also denied having fabricated the whole case against the innocent persons so he had not obtained any signature of any public persons on any documents.
27. Judgments filed by the APP in support of his case. In Ramesh Kumar v. State [(1992) JCC 154] it was held the High Court of Delhi that the accused was arrested within five hours of the occurrence therefore chance of false implication cannot be there. In this case one witness had resiled from his statement, another had only partially supported the prosecution story and another did not identify the weapon of offence. As the defence version had not been rebutted the case against the accused was doubtful. However despite these evidences the High Court upheld the conviction of the accused.
28. In Sattan Sahani v. State of Bihar [ 2002(3) JCC 1878] it was held that for a conviction under section 326 IPC the requirements of section 320 IPC must be satisfied. Though only one blow was caused by the appellant from the weapon of offence, it must be inferred that it was likely to cause the death of the injured person and therefore the offence is made out under section 326 IPC.
29. PW 1 has proved the rukka and the FIR. As per the complaint Tullan took out a danda and gave a blow with it on his left eye. The version is supported by PW4 who saw his brother lying on the ground and his brother ( complainant Hukam Chand) stated that accused Tullan had caused the injury. PW4 was first person to have spoken to the injured which was immediately after the incident. Although he did not see the incident happen, he saw Tullan run away from the spot.
30. It is not the contention of the accused that there is no proper medical evidence on record. The doctor has proven the injury received by Hukum Chand. The description of the injury is complete and specific.
31. The said section is reproduced as under:
"326. Voluntary causing greivous hurt by dangerous weapons or means.- whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death ,..........shall be punished with imprisonment for life or with imprisonment of either description for a term which my extend to ten years, and shall also be liable to fine."
32. The accused is stated to have surrendered on 10.01.07. Weapon was recovered at the instance of the accused. Thus the guilt of the accused can be inferred from the medical evidence, his conduct of running away from the spot and from the statement of the injured.
33. As to the discrepancies with respect to the apparent alteration of dates on the entries, it is well settled that, court while appreciating evidence must not attach undue importance to these discrepancies which do not shake the basic version of the prosecution.
34. PW4 and other witnesses have supported the version of the complainant, that of Tullan causing grievous hurt on the person of Hukum Chand by using a danda which in itself does not constitute a deadly weapon but is capable of being converted into one.
35. In State of U.P. v. Indrajeet alias Sukhatha, 2000(4) RCR(Crl.) 143 (SC) : (2000(7) SCC 249) the Supreme Court held, "there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable."
36. While "Grievous hurt" has been defined in Section 320 IPC, it reads;
"320. Grievous Hurt - The following kinds of hurt only are designated as "grievous"-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any members or joint.
Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Various judgments go to say that before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved.
37. During the SA under section 313 Cr.P.C the accused stated that he had been falsely implicated in the case. The accused did not have any other version that would disprove the version of the prosecution nor did he give an explanation as to his presence on the spot or of his conduct of running away.
38. The prosecution has proved the commission of the offence by the accused Tullan by examining the complainant/ injured and witnesses who have deposed in support of the prosecution case and stated explicitly that the accused was present at the scene of the incident. The weapon of offence has been recovered and the injury due to which the injured has lost the sight of one eye is proved by the medical evidence as grievous. Therefore, the accused is hereby convicted for the offence under section 326 IPC. Copy of the order be provided free of cost to the accused.
39. I now proceed to hear on the aspect of sentence. List on 25.01.12.
Announced in open Court.
On 10.01.2011 Colette Rashmi Kujur Metropolitan Magistrate -06, South East District, Saket