Delhi District Court
State vs Shri Ram Mishra on 27 September, 2014
State V. Shri Ram Mishra
IN THE COURT OF SHRI DEEPAK GARG: ADDITIONAL SESSIONS
JUDGE-01: NORTH: ROHINI DELHI
SC No: 30/12
FIR No. 787/10
PS : MANGOLPURI
U/S: 308 IPC
STATE
VERSUS
SHRI RAM MISHRA
S/O. SH. SURYA NARAYAN MISHRA
R/O. V&PO PASONDA, PS SAHAPUR
.... Accused
DATE OF INSTITUTION: 16.05.2012
DATE OF ARGUMENTS: 24.09.2014
DATE OF DECISION: 27.09.2014
JUDGMENT
1. The brief facts of the prosecution case are that on 09.12.2010 at about 01.00 p.m. at CNG pump, Rani Bagh, within the jurisdiction of PS Mangolpuri, the accused caused hurt to the complainant Santosh and his associate Bhola, with such intention and knowledge and under such circumstances that, if he by such act caused their death, he would be guilty of culpable homicide not amounting to murder and thereby he committed an offence punishable u/s. 308 IPC.
On 09.12.2010 at about 01.20 p.m., the duty officer received an information about the incident of a quarrel having taken place at State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 1 Pages 13 Contd/-..
State V. Shri Ram Mishra Rani Bagh road, CNG Pump and that two persons had received injuries on their heads. The said information was recorded as DD no. 23A and the same was assigned to SI Sahab Singh and he along with Ct. Biresh reached at the spot, where he came to know that the injured had been taken to Bhagwan Mahavir hospital by PCR van. He left Ct. Viresh at the spot and he himself reached at the said hospital and obtained the MLC of injured Santosh, Bhola and the accused Shri Ram Mishra. Thereafter the IO recorded the statement of the complainant Santosh, who stated that he was a native of Sitamani, Bihar and used to transport goods in a tempo bearing no. DL 1L 5332. He further stated that on 09.12.2010 he alongwith his companion Bhola reached at CNG Pump for getting the gas filled in his tempo and a wire/rope was tied up there, which broke due to their tempo. On this a boy namely Shri Ram, s/o Suryanarayan started beating them and when they resisted him, he picked up an iron rod from nearby and hit them on their heads. On seeing all this, their companion Lotan escaped from the spot. Due to being hit by the said iron rod, they both started bleeding from their head . After some time, the PCR van arrived and took all of them to Bhagwan Mahavir Hospital for treatment. On the basis of said statement IO made endorsement and prepared rukka and got the FIR registered. Accordingly FIR no.787/10 u/s 308IPC, PS Mangolpuri was registered.
State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 2 Pages 13 Contd/-..
2. During investigation SI Sahab Singh prepared the site plan, recorded the statement of the witnesses and arrested the accused. IO collected the result of MLC and after completion of investigation filed the charge sheet and accused was put to trial.
3. Ld MM after compliance of provision u/s 207 Cr.P.C committed the case to Sessions Court through Ld District Judge which was assigned to this court.
4. Vide order dated 26.07.2012 charge u/s. 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case prosecution has examined 11 witnesses i.e Complainant Santosh Kumar (PW-1), Sh. Bhola (PW-2), Dr. Bhawna Gupta, Sr. Meidcal Officer, Bhagwan Mahabir Hospital, Pitampura, Delhi (PW-3), HC Dal Chand (PW-4), Sh. Lotan Shah (PW-5), HC Suraj Mal as PW-6, Dr. Krishna Nandan Kumar (PW-7), SI Sahab Singh (PW-8), Ms.Laxmi, record clerk,RML Hospital (PW-9), Dr. P. K. Gaunguly, Hamdard Institute of Medical Sciences and Research, Delhi (PW 10), Ct. Biresh Prasad (PW-11).
6. Sh. Santosh Kumar and Sh.Bhola are the injured who have been examined as PW1 and PW-2 respectively. Sh. Lotan Shah is the eye witness who has been examined as PW5. Their testimony shall be discussed in the later part of the judgement.
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7. PW-3 is Dr. Bhawna Gupta, Sr. Medical Officer, Bhagwan Mahavir Hospital, Pitampura, had examined injured Bhola and Santosh. She had observed CLW on the scalp of Bhola measuring 6cm x1 cm in the left temporal region and his MLC has been proved as Ex. PW 3/A. She had also examined the injured Santosh, whose MLC has been proved as Ex. PW 3/B. She had observed CLW of 4cm X 1cm on his right parietal region.
8. PW-4 is HC Dal Chand was the duty officer, who had recorded DD no. 23A and the copy of the same has been proved as Ex. PW 4/A. He gave the said information telephonically to SI Saheb Singh. Thereafter, at about 04.15 p.m. on the basis of the rukka brought by Ct Biresh, he registered the FIR no.787/10 which is Ex. PW 4/B and made endorsement on the rukka, which is Ex. PW 4/C.
9. PW-6 HC Suraj Mal was posted at PCR Van Libra 14 at the relevant time. On receiving a call on wireless regarding a quarrel at CNG pump near Magolpuri Industrial Area, he reached at the spot and got both the injured Bhola and Santosh admitted in Bhagwan Mahavir Hospital. He also passed on this message to the Control room. He has proved the related call book entry vide Ex. PW 6/A.
10. PW-7 Dr. Krishna Nandan Kumar has proved the opinion of Dr. Khushdeep on the MLC of patient Bhola Ex. PW 3/A whereby the injuries on his person were opined as grievous in nature. He had appeared on behalf of Dr. Khushdeep on the instructions of MS State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 4 Pages 13 Contd/-..
State V. Shri Ram Mishra of the said hospital as Dr. Khushdeep had left his services of the hospital and his present whereabouts were not known.
11. PW-8 SI Sahab Singh is the IO of the case. On 09.12.2010 after receiving DD no. 23A, he alongwith Ct. Biresh had reached at the spot where he came to know that the injured had already been shifted to the Hospital. Since the condition of Santosh was serious, the doctors had referred him to RML hospital. Since he was still in hospital, IO recorded the statement of Santosh, which is Ex. PW 1/A and also recorded the statement of injured Bhola. He prepared the rukka Ex. PW 8/A and got the FIR registered through Ct. Biresh. Lotan had pointed out towards accused Shri Ram Mishra and at his instance, IO seized the Saria vide memo Ex. PW 1/E, which was the weapon of offence. The accused was arrested vide memo Ex. PW 1/B and his personal search was also conducted vide memo Ex. PW 1/C. He also got the accused medically examined. He has correctly identified the accused as well as the Saria i.e. the weapon of offence.
12. PW- 9 Laxmi, the record clerk at RML Hospital, brought the medical record of two persons i.e. Bhola Ram, who was examined vide CR no. 53340/10 and Bhola, who was examined vide CR no. 52646/10 and the record has been proved as Ex. PX and PY respectively. It is relevant here to state that Ex. PY is the medical record pertaining to injured Bhola, which is relevant for the present case.
State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 5 Pages 13 Contd/-..
13. PW10 is Dr. P. K. Ganguly, HOD, Surgery, Hamdard Institute of Medical Sciences and Research, Delhi, was working as Professor Surgery and Unit Incharge of Surgery Department at RML Hospital. He further deposed that patient Bhola was admitted in RML hospital on 10.12.10 vide CR no. 2010/52646 and was undergoing treatment till 12.12.10. Dr. Sumit and Dr. Masood had examined and treated him in surgical ward and Dr. Masood had prepared his discharge summary under his supervision, which has been proved as Ex.PW 10/A. He has also identified the signatures and handwriting of Dr. Masood and he has deposed that the patient was having head injury and there was extra dural hemorrhage in CT Scan and there were fractures of squamas part of left temporal bone, left orbit, left zygonatic arch and left ptrygoid plate. He also deposed that the said injured was given medicines to prevent seizures also and opinion from neuro surgery department as well as of plastic surgery department was also sought. He has also proved the cases sheets, CT Scan report as well as X ray film.
14. PW- 11 Ct. Biresh Prasad, had accompanied the IO to the spot after receipt of DD no. 23A by the IO. He had taken the rukka to the police station on the instructions of SI Sahab Singh and had got the FIR registered. He is the witness of the arrest of the accused vide Ex. PW 1/B and to his personal search vide memo Ex. PW 1/C. In his presence, accused had got recovered the iron rod, which was taken into possession vide memo Ex. PW1/E. He State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 6 Pages 13 Contd/-..
State V. Shri Ram Mishra correctly identified the accused in court. He also correctly identified the Saria, which has been exhibited as Ex. P1.
15. After examination of these witnesses, on the request of ld.
Addl. PP for the State, PE was closed on 29.11.2013 as all the witnesses had been examined. Thereafter, the accused was examined u/s. 313 Cr.PC. whereby all the incriminatory facts and circumstances appearing in evidence against him were put to him. He denied all the said incriminating facts and circumstances and stated that he has been falsely involved in this case. He took the defence that although he was working at CNG Petrol Pump Rani Bagh, Road, Delhi, but, he was not present there at the time of the incident and that he has been falsely implicated in this case. He did not lead any evidence in defence.
16. In order to prove the case u/s. 308 IPC, it is necessary for the prosecution to prove (i) doing of an act by the accused and (ii) that the said act was done with the intention or knowledge and under such circumstance that if it had caused death, the act would amount to culpable homicide not amounting to murder.
17. In the present case, complainant Sh. Santosh Kumar has been examined as PW-1, who has deposed that he used to transport goods in tempo and was working at Pathar Market,Mangolpuri. He further deposed that on 09.12.2010 he alongwith Bhola and Lotan had gone to the CNG Pump station to get the CNG filled in his tempo. There was a wire tied up at the State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 7 Pages 13 Contd/-..
State V. Shri Ram Mishra station, which broke due to their said tempo and this annoyed the employees at CNG pump and they started abusing them and when they objected to the behavior of the employees at the said CNG pump, one of the said boys picked an iron rod lying nearby and gave beatings to them. Thereafter, he also gave a blow with the said rod on his head and on the head of Bhola (inadvertently typed as Lotan because as per the witness Lotan had already ran away when the accused started beatings to them). Their other companion Lotan escaped from the spot, while they both were beaten up by the accused till they fell down. Police arrived at the spot and took them to the hospital and police recorded his statement, which has been exhibited as Ex. PW 1/A. Thereafter, during investigation, they came to know the name of the accused as Shri Ram Mishra and the accused was arrested and his arrest memo, personal search memo and disclosure statement have been exhibited as Ex. PW 1/B , Ex. PW1/C and Ex. PW 1/D respectively. This witness has correctly identified the accused in court. He has also correctly identified the weapon of offence, i.e. iron rod, when shown to him in the court, which is Ex. P1.
18. The deposition of complainant Santosh Kumar is corroborated by Sh. Bhola and Sh. Lotan Shah who have been examined as PW-2 and PW-5 respectively. All the said witnesses have been cross examined by ld Defence Counsel, but, it has come in their cross examination to weaken their testimony.
State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 8 Pages 13 Contd/-..
19. The weapon of offence i.e. the Saria, was seized by IO SI Sahab Singh on the pointing out of witness Lotan and the accused, which was lying the bushes and it was put in a pullanda and sealed with the seal of SS and it was seized vide seizure memo Ex. PW 1/E. This fact has been proved by IO SI Sahab Singh, who has been examined as PW 8. All the three public witnesses, i.e. Sh. Santosh Kumar, Bhola and Lotan Shah have correctly identified the same in court and the same is exhibited as Ex. P1.
20. Injuries on the person of Bhola and Santosh have been proved by Dr. Bhawna Gupta, Sr. Medical Officer, Bhagwan Mahavir Hospital, Pitampura, Delhi, who has been examined as PW-3. She has proved the MLC of Bhola as Ex. PW 3/A and she had observed CLW on his scalp measuring 6cmx1 cm in the left temporal region, when he was brought to hospital at about 01.30 p.m. on 09.12.2010. she has also proved the MLC of Santosh as Ex. PW 3/B and she has observed CLW measuring 4cm X 1 cm on the right parietal region.
21. The doctors at Bhagwan Mahavir Hospital referred Bhola to RML/Safdarjung hospital for neuro surgery and on 10.12.2010, he was admitted in RML hospital vide CR no. 2010/52646. The case sheet alongwith treatment sheet has been proved as Ex. PY. He was examined by Dr. Sumit and Dr. Masood under the supervision of Dr. P. K.Ganguly, HOD Surgery, who has been examined as PW10. He has proved that Bhola was having head injury and his State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 9 Pages 13 Contd/-..
State V. Shri Ram Mishra CT Scan showed that there was extra dural hemorrhage and there was fracture in left parieto temporal bone and in his left zygomatic bone.
22. Dr. Khushdeep had opined the nature of injuries on the person of Bhola as grievous and his writing to that effect has been proved by Dr. Krishna Nandan Kumar, Specialist Surgery, Bhagwan Mahavir Hospital Pitampura, who has been examined as PW7.
23. Hence, it is proved that the injuries on the person of Santosh and Bhola were caused due to the act of the accused Shri Ram Mishra, who had hit Saria on their head. As discussed above, Bhola had received grievous injuries and he had suffered fracture of left parieto temporal bone and fracture in left zygomatic bone and from the said nature of injuries, knowledge of the accused can be inferred that by hitting the saria on the head of Bhola so forcefully, death of Bhola could be caused.
24. It is argued by ld defence counsel that the accused had been falsely implicated in this case, because the place where the offence allegedly took place is a busy place and no public witness/ independent witness has been cited or examined in the case. In my view, mere fact that the public witnesses other than Santosh, Bhola and Lotan, have not been examined, it will not dent the case of the prosecution. It is stated by the IO in his cross examination that at the time of investigation, no public person was present at the said petrol pump. The passers by had told him that they did not know State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 10 Pages 13 Contd/-..
State V. Shri Ram Mishra anything about the quarrel. It is noted that members of general public are reluctant to come forward and depose especially in criminal trials for various reasons.
In the case of State of Andhra Pradesh V. S. Rayappa and ors (2006) SCC 512, Hon'ble Supreme Court has commented upon the reasons for reluctance of public persons to join as witnesses in the criminal trials because criminal cases keep dragging for years to come and the witnesses are harassed a lot. They were being threatened, intimidated and at the top of all they were subjected to lengthy cross examination. In my view, since the testimonies of both the injured and their companion Sh. Lotan are trustworthy and free from any blemish, it will not affect the case of the prosecution, if no other public witness has been involved in the investigation of the case.
25. It is further argued that the injured Santosh had received simple injuries, which could not be said to be life threatening and hence, requisite intention or knowledge u/s. 308 IPC can not be inferred. In my view, there is no merit in this contention as well, because, although the injured Santosh had received simple injuries, but same are on his head, which is a vital part of the body. Further, the other injured namely Bhola had received grievous injuries and it has been proved that CT Scan of the head of Bhola was showing fracture of the skull and extra dural hemorrhage. Relevant documents have been proved as Ex. PY. Fracture of bone is a State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 11 Pages 13 Contd/-..
State V. Shri Ram Mishra grievous hurt as per section 320 IPC. However, fracture in the skull bone of the injured assumes more significance because it is the vital organ of the human body and as discussed above, requisite knowledge about the consequences of the act as per section 308 IPC can be inferred due to the seriousness of the injuries on the vital part of the body of the injured.
26. It is further argued by ld. Counsel for the accused that there are contradictions in the statement of the three public witnesses who have been examined by the prosecution and hence, their testimonies are not believable. It is stated that PW-1 Santosh Kumar has deposed in his cross examination that one Sajjan was driving the said tempo at that time, but PW-5 Lotan Shah has deposed that he himself was driving the said tempo. It is further stated that PW-1 Santosh has deposed that when the said rope was broken through their tempo, the boys at the CNG pump started abusing them, but PW Bhola and Lotan have not deposed any such thing that the other boys at CNG pump had also started abusing them. Ld. Addl. PP for the State has controverted the same. In my view, the contradictions pointed out by Ld. Counsel for the accused are not substantial in nature. The Supreme Court of India had dealt with as to what are the normal discrepancies and what are material discrepancies int eh case reported as State of Rajasthan V. Kalki 1981 Crl.J. 1012. which is extracted as under:-
State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 12 Pages 13 Contd/-..
State V. Shri Ram Mishra "... normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful as witness may be. Material discrepancies are those which are not normal, and not expected of normal person. Courts have to label the category to which a discrepancy may be categorized."
In my view, the contradictions pointed out by ld. Counsel for the accused are not of such magnitude that they may materially affect the trial. It has been held above that the testimonies of both the injured and Sh. Lotan Shah are trustworthy. Minor contradictions, inconsistencies, embellishments or improvement on trivial matters without affecting the case of prosecution, should not be made a ground to reject the evidence in its entirety.
27. In view of the above, the prosecution has been able to prove its case u/s. 308 IPC against the accused beyond reasonable doubt.
28. Hence, the accused Shri Ram Mishra is convicted for the offence u/s. 308 IPC. Let he be heard on the point of sentence separately.
ANNOUNCED IN OPEN COURT (DEEPAK GARG)
th
on 27 September 2014 ASJ -01 (NORTH), ROHINI:DELHI.
27.09.2014
State V. Sri Ram Mishra// SC no.30/12;//FIR NO. 787/10/;U/S. 308IPC PS Mangolpuri page no 13 Pages 13 Contd/-..