Delhi District Court
Uttar Pradesh vs . Naresh And Ors. (2011) 4 on 27 May, 2013
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDL.SESSIONS JUDGE01:
NORTH: ROHINI: DELHI
SC No.156/11
FIR No.299/10
PS Narela
U/S 186/353/333/325 IPC
STATE
VERSUS
Daya Chand S/o Shyam Singh,
R/o H. No.250, Vill. Sannoth,
PS Narela, Delhi. ..... Accused
Date of assignment: 01.12.2011
Date of argument : 15.05.2013
Date of decision: 27.05.2013
JUDGMENT
1. Brief facts of the case are that on 26.7.10 at about 4.30 pm an information was given by the PCR to wireless operator of PS Narela that a quarrel near Vishal Bagh somebody cutting tree. The said information was recorded by daily diary no.24A by DO of PS Narela and assigned the same to ASI Sardar Singh. He along with Ct. Diwan Singh reached at the spot i.e Vishal Bagh Narela and there Hem Chander met him and produced accused Daya Chand and told that injured has been State V DAYA CHAND FIR no.299/10 PS NARELA Page No.1 of 16 2 taken to SRHC Hospital. Thereafter ASI reached at SRHC Hospital and recorded statement of injured Vijender Singh. In his statement Vijender Singh told that he is working as gardener (mali) in DDA and today i.e 26.7.10 he was on duty from 9 am to 5 pm and at about 4.30 pm he saw one person was cutting stem of the tree after climbing on it and when he asked not to do said person become angry and told who is he to stop him from cutting the tree and when he saw his I/Card said person told that he had seen lot of persons like him and if he dares he should stop him. Thereafter complainant called his colleague Hem Chander who also asked the said person not to cut the tree thereafter said person came down from the tree and started quarreling and he gave fist blow due to which three teeth of lower jaw were broken of complainant. Two teeth were lost in grass and one he handed over to IO. ASI made endorsement on said statement and prepared rukka and sent the same for registration of FIR and accordingly FIR no.186/353/333/325 IPC was registered in PS Narela. ASI seized the broken teeth and prepared the site plan, seized darati by which accused was cutting the tree, arrested the accused and recorded his confessional statement. During the investigation, complaint u/s 195 Cr.P.C. filed by Dy. Director, Horticulture to take action against the accused. IO also called the attendance sheet, called the complainant, obtained the opinion on the MLC and after completion of investigation filed State V DAYA CHAND FIR no.299/10 PS NARELA Page No.2 of 16 3 the charge sheet u/s 186/353/333/325 IPC and sent the accused for trial in accordance with law.
2. After compliance of Section 207 Cr.P.C., Ld. MM has committed the case to the court of Sessions which was later on assigned to this court.
3. Vide order dt. 3.2.12, charge u/s 186/353/333 IPC was framed against the the accused and to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as 9 witnesses, PW1 Bijender Singh, PW2 HC Shambhu Singh, PW3 Dr.Avdesh, PW4 Hem Chander, PW5 Ct. Diwan Singh, PW6 Om Pal Singh, PW7 Dr.P.Arioli, PW8 R.C. Sharma, PW9 ASI Sardar Singh.
5. PW1 Bijender Singh is the complainant/injured.
6. PW2 HC Shambhu Singh is the duty officer and recorded DD no.24A ExPW2/A and also recorded the FIR in this case ExPW2/B and made endorsement on rukka ExPW2/C. He was not cross examined.
7. PW3 Dr. Avdhesh conducted medical examination of the injured and prepared MLC ExPW3/A. He was not cross examined.
8. PW4 Hem Chander is the eye witness.
9. PW5 Ct. Diwan Singh participated in the investigation with IO.
State V DAYA CHAND FIR no.299/10 PS NARELA Page No.3 of 16 4
10. PW6 Om Pal Singh Dy.Director, Horticulture deposed that he filed complaint u/s 195 Cr.P.C.ExPW6/A. In cross examination he stated that police has sent the letter mark PW6/Y for filing complaint u/s 195 Cr.P.C. and he further stated that he has no personal knowledge of the case except this.
11. PW7 Dr.P.Ari oli gave his finding on the MLC of injured as ExPW7/A and deposed that he gave opinion of injuries as grievous which he proved as ExPW7/B. In cross examination, he stated that injury could be possible by blunt force impact and injury was fresh.
12. PW8 R.C. Sharma proved the attendance register of 26.7.10 containing the attendance of complainant and eye witness Hem Chander and proved the copy of same as ExPW8/A and ExPW8/B. In cross examination he stated that he did not remain in office for whole day and some time he had to vis it to other places. He further stated that on 26.7.10 he was not posted at Div. no.10.
13. PW9 ASI Sardar Singh is the IO. He deposed that on 26.7.10 on receiving DD no.24A he went to spot with Ct. Diwan and there one person namely Hem Chander met him and informed that injured has been taken to SRHC Hospital and one person apprehended by Hem Chander given to him. He came to know his name as Daya Chand. He went to the hospital where he procured the MLC of injured Virender Singh and State V DAYA CHAND FIR no.299/10 PS NARELA Page No.4 of 16 5 thereafter recorded the statement of injured as ExPW1/A. He seized the broken teeth vide seizure memo ExPW1/D. Thereafter he came to the spot and made endorsement on the statement of Vijender Singh and prepared rukka which he handed over to Ct. Diwan Singh and Ct. Diwan Singh returned to the spot after registration of FIR. He arrested the accused vide arrest memo ExPW4/A, seized the darati vide seizure memo ExPW4/D. He identified the darati/dau as ExP1 and broken teeth as ExP2. He also identified the accused. In his cross examination he stated that he reached at the spot at about 5.15 pm. He further stated that medical examination of accused was conducted on 27.7.10. He denied the suggestion that accused also sustained injuries and he has requested for his medical examination but he did not get him medically examined. He also denied that he has threatened the accused if he demanded his medical examination from Ld. MM then he will again sent to PS.
14. Statement of the accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence was put to him but he denied the same. The accused stated that he has been falsely implicated in this case as at the time of incident he was passing through the spot and complainant in connivance with the police officials has implicated him in this case. In support of his case, accused examined Hari Ram as DW1.
15. I have heard Shri A.K. Gupta, Ld. APP for the State State V DAYA CHAND FIR no.299/10 PS NARELA Page No.5 of 16 6 and Shri Dharampal and Ms. Seema Gupta, Advocates for accused.
16. Ld. APP for the State argued that from the testimony of PW1 it is proved that accused was cutting the tree from a DDA park and when PW1 who was working there as gardener tried to stop him, accused interfered in the performance of his duty and quarreled with him and gave fist blow due to which teeth of PW1 were broken. Ld. App further argued that the testimony of PW10 is duly corroborated with the testimony of PW4 Hem Chander eye witness and also by the MLC of injured. Therefore in these circumstances, accused is liable to be convicted.
On the other hand, Ld. Counsel for accused argued that accused has been falsely implicated in this case as father of accused was also working in DDA and there was some dispute between them and when accused was passing through the said park both PW1 and PW4 conspired to implicate the accused in a false case. Hence accused is liable to be acquitted. Ld. Counsel for accused further argued that from the testimony of DW1 Hari Ram it is proved that the complainant used to pass caste remarks to accused and stopped the accused from carrying the leaves which he had brought from village Bankner and when accused stated that he had brought the said leaves from village Bankner on this complainant and Hem Chander started quarreling and also gave beatings State V DAYA CHAND FIR no.299/10 PS NARELA Page No.6 of 16 7 to accused. Hence considering this fact accused is entitled to be acquitted.
17. I have heard the arguments and gone through the record. Accused Dayachand has been charged for offence u/s 186/353/333 IPC. Sections 186 IPC, 353 IPC and 333 IPC are reproduced as under :
Section 186 IPC. Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 353 IPC. Assault or criminal force to deter public servant from discharge of his duty.-- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
State V DAYA CHAND FIR no.299/10 PS NARELA Page No.7 of 16 8 Section 333 IPC. Voluntarily causing grievous hurt to deter public servant from his duty--
Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
18. The prime witness of the prosecution case is PW1 who is complainant as well as injured. He deposed that he was working as gardener (mali) in the DDA park and on 26.7.10 he as on duty in Vishal Bagh Narela from 9 am to 5 pm and is duty was to take care of the plants in the Vishal Bagh. He further testified that on 26.7.10 he was present in the aforesaid bagh and at about 4.30 pm one person came in the bagh and climbed upon the people tree and was cutting the tree and when he objected and told him not to cut the tree. He became angry and told who was he to stop him. PW1 showed his I/Card to him and thereafter he told him that 'tere jaise maine bohot dekhe hai agar himmat hai to rok ke dekh le mera nam Dayachand hai, meri uper tak pehchan hai mera koi kucch nahi bigad sakta'. He identified the said person as accused Dayachand State V DAYA CHAND FIR no.299/10 PS NARELA Page No.8 of 16 9 by pointing out towards him. PW1 further testified that thereafter he called Hem Chander and they both again objected the acts of accused Dayachand. Accused stepped down from the tree and grappled with PW1 and gave him many fist blows on his mouth and this three teeth from lower jaw of front side were broken. Thereafter they apprehended the accused and called the police at 100 number and accused was handed over to police. He has also handed over his broken teeth to the police. He was taken to SGM Hospital where he was medically examined and his statement ExPW1/A was recorded. He also identified the darati as ExP1 which was brought by the accused for cutting the tree and he also identified his broken teeth as ExP2. In his cross examination PW1 stated that he is the permanent employee of DDA. He further stated that other employee of DDA i.e Hem Chander was at a distance of 200250 mts. from him and he called him by shouting. He denied the suggestion that he and Hem Chander were consuming liquor when accused was coming with leaves of Budberi tree on his bicycle. He further stated that he had searched his missing two teeth but both were not found. On perusal of testimony of PW1.
I find that nothing has come out in his cross examination which could discard his testimony. He has categorically stated that accused has given fist blow due to which his teeth were State V DAYA CHAND FIR no.299/10 PS NARELA Page No.9 of 16 10 broken.
19. The counsel for accused has given suggestion in cross examination to PW1 that accused was passing through the park and there was altercation between them, hence counsel for accused has admitted the presence of accused at the spot. No suggestion has been given to the witness that there was any previous enmity between the accused and PW1 due to which PW1 would falsely implicate the accused in this case. The testimony of PW1 is consistent with his statement ExPW1/A given to the police. In these circumstances, I find the testimony of PW1 cogent, trustworthy and reliable.
20. The testimony of injured witness is sufficient to convict the accused. In this regard I rely upon the judgment Noor Salam V State (Govt. NCT of Delhi) Dt. 29.01.2013 passed by Hon'ble Justice Sh. S.P. Garg it is held that evidence of injured witness could not be disbelieved without assigning any reasons. Hon,ble judge in para 12 has held as under : The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. The law on this aspect has been detailed in State of Uttar Pradesh vs. Naresh and ors. (2011) 4 Supreme Court Cases 324 as under:
"27. The evidence of an injured witness must be given due weightage being a stamped witness, State V DAYA CHAND FIR no.299/10 PS NARELA Page No.10 of 16 11 thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions CRL. A. No. 694/2010 Page 7 of 13 and discrepancies therein. (Vide Jarnail Singh v. State of Punjab,m Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"
Similarly in another case Abdul Sayed vs. State of Madhya Pradesh (2010) 10 Supreme Court Cases 259, Supreme Court laid down : "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 State V DAYA CHAND FIR no.299/10 PS NARELA Page No.11 of 16 12 very reliable, as he is a witness that comes with a built in 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." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat Bonkya v. State of Maharashtra, Bhag Singh Mohar v. State of U.P. (SCC p. 606bc), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Redey v. State of A.P. And Balraje v. State of Maharashtra.] While deciding this issue, a similar view has been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has 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 CRL. A. No. 694/2010 page 8 of 13 presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and State V DAYA CHAND FIR no.299/10 PS NARELA Page No.12 of 16 13 efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below."
The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This 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."
21. The testimony of PW1 is corroborated by the medical evidence i.e his MLC ExPW7/A prepared by PW7 Dr.P.Arioli who deposed that on examination he found missing of lower right lateral incisor tooth and left lower lateral and canine teeth, sockets were filled with blood, gradeI mobility is found in upper left incisors and swelling present over lower lip. State V DAYA CHAND FIR no.299/10 PS NARELA Page No.13 of 16 14 He opined the nature of injury as grievous. It is highly unlikely that injuries to PW1 are self inflicted, in fact no such suggestion has been given to either PW1 or PW7.
22. The testimony of PW1 is also duly corroborated by PW4 Hem Chander who had also stated that same facts as stated by PW1. In his cross examination also nothing has come out which could lead to disbelieve his testimony. The contention of Ld. Counsel that there are contradictions in the cross examination of PW1 and PW4. PW1 in cross examination stated that Hem Chander was at a distance of 200250 mts. whereas Hem Chander as PW4 stated that he was at a distance of 200 ft. In my opinion this is not much material as generally people get confused in meter and feet. The presence of Hem Chander is itself admitted by the counsel for accused which is evident from the suggestion given to PW1 that he and Hem Chander gave beatings to accused. Hence it is proved that from the testimonies of PW1 and PW4 that PW1 was given beatings by accused when PW1 stopped the accused not to cut the tree due to which teeth of PW1 were broken.
23. It is proved from the testimony of PW6 Shri Om Pal Singh, Dy. Director, Horticulture that the complainant is a public servant as he is an employee if DDA which is a public body. PW6 also proved the complaint u/s 195 Cr.P.C. as ExPW6/A. From the testimony of PW8 State V DAYA CHAND FIR no.299/10 PS NARELA Page No.14 of 16 15 R.C. SharmaSection Officer, Horticulture Deptt. proved the attendance register of 26.7.10 as ExPW8/A and ExPW8/B. Both the witnesses have categorically stated that injured Bijender Singh is the employee of DDA. Further from the attendance register ExPW8/A and ExPW8/B it is proved that PW1 and PW4 were on duty on the day of incident.
24. As far as the testimony of DW1 Hari Ram is concerned, I do not find the same reliable as DW1 deposed that on 26.7.10 he was posted at Vishal Bagh Narela as Chowkidar and at about 4 pm Bijender and Hem Chander along with 34 persons were consuming liquor at Vishal Bagh, at that time Dayachand came there on his cycle carrying bunch of leaves of Budberry. Dayachand was stopped by Bijender, Hem Chander and other persons and called him by his caste "Chamar" and also asked him from where he had brought the bunch of leaves of Budberry and Dayachand stated them that he had brought the leaves from village Bankner. On this Bijender and Hem Chander started quarreling with him and also gave beatings to Dayachand and altercation took place between accused and Bijender and others. In his cross examination DW1 has admitted that accused Daya Nand is his brother as he was living in same village. DW1 has failed to explain why PW1 and PW4 had quarreled why he did not interfere in it. Further if he was present there and seen the incident and aware that accused has been State V DAYA CHAND FIR no.299/10 PS NARELA Page No.15 of 16 16 falsely implicated in this case then why he has not made any complaint to the IO or the senior officer of the police or to other authority that PW1 and PW4 have falsely implicated the accused in this case. Therefore in these circumstances, I do not find his testimony reliable. It appears that in order to save the accused he had falsely concocted the said story.
25. Hence, in these circumstances, I am of the view that prosecution has been able to prove beyond reasonable doubt that accused Dayachand had obstructed PW1 in performing of his duty as being gardener it was his duty to look after all the trees and he has assaulted PW1 when he objected the act of the accused i.e stopping him from cutting the tree and gave him fist blow due to which three teeth of PW1 were broken and thus he received grievous injuries.
26. Therefore, in view of above said facts and circumstances, I convict the accused for offence u/s 186 IPC for obstructing public servant in discharging of his official duty and also convict him for offence u/s 333 IPC for causing grievous injury to PW1 injured a public servant. Since the offence u/s 333 IPC is graver than offence u/s 353 IPC, therefore, in my view there is no need to separately convict the accused u/s 353 IPC.
Announced in open court (SANJEEV KUMAR) Dt.27.05.2013. ASJ01, NORTH, ROHINI, DELHI State V DAYA CHAND FIR no.299/10 PS NARELA Page No.16 of 16 17 IN THE COURT OF SHRI SANJEEV KUMAR: ADDL.SESSIONS JUDGE01:
NORTH: ROHINI: DELHI SC No.156/11 FIR No.299/10 PS Narela U/S 186/353/333/325 IPC STATE VERSUS Daya Chand S/o Shyam Singh, R/o H. No.250, Vill. Sannoth, Delhi. ........... Convict ORDER ON SENTENCE Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Shri Virag Kumar Aggarwal, Advocate for convict. Convict Dayachand in JC.
1. The convict submits that he is aged about 32 years.
Convict has to look after his old age parents, wife and son aged about 7 years and daughter aged about two years and convict is the sole bread earner of his family. Ld. Counsel for convict submits that mother of accused is mentally ill. Ld. Counsel further submits that incident happened in spur of moment as there is no evidence that there is any State V DAYA CHAND FIR no.299/10 PS NARELA Page No.17 of 16 18 previous enmity between them. ld. Counsel further submits that convict had intention to cause the grievous injuries he could use the darati which he was carrying, this shows that during the scuffle complainant Bijender got injuries. Ld. Counsel further submits that convict is not involved in any crime previously. Ld. Counsel has relied upon the judgment Shanmugam @ Kulandaivelu V State of Tamil Nadu AIR 2003 SC 209 on 12 November, 2002 and Ramdish Verma & Ors. V State of Delhi on 24 Sept. 2002 100 (2002) DLT 554 and submits that from the judgment it is evident that when incident happened all of sudden, the court should take lenient view.
2. On the other hand, ld. Addl. PP for the State submits that accused has caused the grievous injury to complainant Bijender who was a public servant and performing his duty i.e looking after the trees and flowers in the Vishal Bagh where he was employed as gardener (mali). Therefore, considering the same, the convict be punished for maximum sentence provided under the act.
3. I have heard the arguments and gone through the record.
4. Though the act of accused to cause grievous injury to complainant who is a public servant and was performing his duty when complainant tried to stop the convict from cutting the tree but considering the fact that quarrel had taken place all of sudden without any State V DAYA CHAND FIR no.299/10 PS NARELA Page No.18 of 16 19 premeditation and the convict had not used the darati despite being in possession and also considering the fact that convict is having family consisting old parents and small children, I take lenient view and sentenced the convict for imprisonment of three years rigorous imprisonment for offence u/s 333 IPC along with fine of Rs.20,000/ in default of payment six months SI and also convict him three months SI for offence u/s 186 IPC along with fine of Rs.500/ in default of payment of fine 15 days SI. If the fine is realized Rs.15,000/ be paid to the complainant Bijender Singh.
5. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrant be issued against the convict. A copy of the judgment and order on sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.
Announced in open court (SANJEEV KUMAR) Dt. 31.5.2013. ASJ01, NORTH, ROHINI, DELHI State V DAYA CHAND FIR no.299/10 PS NARELA Page No.19 of 16