Delhi District Court
State vs . 1. Prem Shankar S/O Gowardhan, on 16 May, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions Case No. 297/06
State Vs. 1. Prem Shankar S/o Gowardhan,
R/o B303, Street No.8, Babu Nagar,
Karawal Nagar, Delhi.
2. Deepak S/o Prem,
R/o B303, Street No.8, Babu Nagar,
Karawal Nagar, Delhi.
FIR No. 394/02
PS Gokalpuri
U/S 323/308 IPC.
J U D G E M E N T : Casual remarks in common parlance passed by Prem Shankar were perceived by Chander Pal as sarcasm. On 05.10.02 at about 11pm, Chander Pal had gone to fetch water from public hydrant at Babu Nagar, Delhi. Calf of mare, possessed by Prem Shankar, was roaming in the street. It hit Chander Pal with its hind legs. Chander Pal questioned Prem Shankar as to why he was not taking care of the animal. Prem Shankar replied that the animal had not left anyone dead. This answer was not liked by Chander Pal and it resulted into arguments between the two. Deepak, son of Prem Shankar, came out of his house. In the meantime, Shish Pal, brother of Chander Pal, also reached there. Prem Shankar and his son Deepak abused them and an altercation took place. Sukhbir also reached there. Deepak went on roof top of his house and started pelting brickbats. Chander Pal and Shish Pal sustained injuries over their heads. Sukhbir sustained injuries on his hand. Prem Shankar also hurled brickbats. One brickbat wielded by Prem Shankar hit 2 shoulder of Chander Pal. In the meantime, Shish Pal gave a telephone call to police control room. Shish Pal and Chander Pal were bleeding from their head injuries. Sukhbir sustained fracture injuries over his hand. Police reached there and removed Chander Pal, Shish Pal and Sukhbir to GTB Hospital, Shahdara, Delhi.
2. Chander Pal reported matter to the police. His statement became bedrock of the case. Case was registered for offences punishable under sections 323 and 325 read with section 34 of the Penal Code. Investigation was taken up by Adalat Singh ASI. Accused persons were arrested. Investigation culminated into a chargesheet against the accused persons.
3. Case on being committed to this Court, charge for offences punishable under sections 308, 325 and 289 read with section 34 of the Penal Code was framed against the accused persons by my ld. Predecessor, to which charge accused persons pleaded not guilty and claimed trial.
4. To substantiate the charges, prosecution has examined Shish Pal (PW1), Sukhbir (PW2), Sunita ASI (PW3), Udai Kumar, Constable (PW4), Swaraj, Constable (PW5), Chander Pal (PW6), Dr. V.K. Jain (PW7) and Adalat Singh ASI (PW8) in the case.
5. Sunita ASI was working as duty officer at police station, Gokalpuri, on 29.10.02. She recorded formal FIR and proved copy of it as Ex.PW3/A. Udai Kumar, Constable, joined investigation on 05.10.02 and accompanied Adalat Singh ASI to the spot. When they were told that injureds were removed to GTB Hospital by PCR officials, Udai 3 Kumar, Constable, was relieved from there. Swaraj, Constable, joined investigation of the case, to whom rukka was assigned for getting a case registered. He reached police station and handed over rukka to duty officer. After registration of the case, he reached spot and handed over rukka in original and copy of FIR to the IO. Dr. V.K. Jain has proved MLCs of Chander Pal and Shish Pal, prepared by Dr. Abhinav, as Ex.PW7/A and Ex.PW7/B respectively. He has also proved MLC of Sukhbir prepared by Dr. Mohd. Umar as Ex.PW7/C. Adalat Singh ASI had conducted investigation of this case and proved investigative steps taken by him. He detailed that since injuries of patient Chander Pal, Sukhbir and Shish Pal were kept under observation, he had deferred action in the mater. On 29.10.02, he recorded statement of Chander Pal and got the case registered. He further details that accused persons were arrested at the instance of Chander Pal and were released on bail.
6. Witnesses, namely, Shishpal, Sukhbir and Chander Pal were brought in the witness box to prove facts of the case. Out of facts testified by them, it came over record that on 05.10.02 at about 11pm, calf of mare, which was in possession of Prem Shankar, was roaming in the street, which hit its hind legs to Chander Pal. When Chander Pal questioned Prem Shankar in that regard, latter answered in sarcastic manner. They reasoned with each other and it resulted into an altercation. Deepak, son of Prem Shankar, reached there, who had also abused them. Deepak went roof top of his house and pelted brickbats, which struck against them. Prem Shankar also hurled 4 brickbats on them. They sustained injuries over their head. Shish Pal also sustained injuries on one of his hand.
7. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 of the Code of Criminal Procedure, 1973 (in short the Code). Prem Shankar denied all allegations against him. He denied that calf of mare, which was in his possession, was roaming uncared for. He denied that it hit its hind legs to Chander Pal and when Chander Pal questioned him in that regard, it resulted into an altercation. According to him, his wife was dragged out of the house by Chander Pal, Shish Pal, Sukhbir, Yogesh, Swaraj, Ram Kishan and Onkar. When his son found his mother in absurd position, he made a telephone call to police for help. Since police did not reach the spot, his son started pelting stones on the aforesaid persons, in order to disperse them. In pelting of stones, aforesaid persons sustained injuries and could not administer beatings to his wife. He claims that at the time of incident, he was not present at his house. Deepak also took the same stand. According to him, his mother was dragged by Chander Pal, Shish Pal, Sukhbir, Yogesh, Swaraj, Ram Kishan and Onkar. They started beating his mother and torn her clothes. He made a telephone call to police for help. Since police did not reach the spot to render help to his mother, he started pelting stones on the aforesaid persons with a view to disperse them. They sustained injuries and could not cause any further beating to his mother. Accused persons has not led any evidence in their defence.
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8. Arguments were heard at the bar. Sh. R.K. Pandey, Ld. Prosecutor, had presented facts on behalf of the State. Sh. R.K. Srivastava, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :
9. Chander Pal unfolds that on 05.10.02 at about 11pm, he had gone to a public hydrant to fetch water. Calf of mare, which was in possession of Prem Shankar, gave its hind legs blow to him. He objected to it and asked Prem Shankar to keep his animal in order. Prem Shankar retorted and a quarrel took place between them. On hearing noise of commotion, Deepak, son of Prem Shankar, reached there. In the meantime, his brother Shish Pal, also reached there. Prem Shankar and his son started abusing them. By that time, Sukhbir also reached there. During quarrel, Deepak went to roof top of his house and started throwing brickbats on them. Consequently, he received injuries over his head. Shish Pal also received injuries over his head. Prem Shankar grappled with him and he had also thrown brick on him. He received injuries on the other part of his body. His brother Shish Pal informed the police. Police reached the spot and removed him to GTB Hospital. His statement was recorded by police on 29.10.02, which is Ex.PW6/A and bears his signature at point A. He remained admitted in the hospital for about 15 days. From facts testified by Chander Pal, it came to light that mare, in possession of Prem Shankar, was roaming in the street. It hit its hind legs against 6 Chander Pal. It is evident that Prem Shakar negligently omitted to take such order with calf of his mare as was sufficient to guard against any probable danger to human life. It is not a disputed fact that accused Chander Pal was in possession of a calf of a mare and it was roaming loose in the street. Facts testified by Chander Pal were not disputed by the defence. Therefore, out of facts testified by Chander Pal, it emerges over record that Prem Shankar negligently omitted to take such order with the animal as was sufficient to guard any probable danger to human life. The animal hit its hind legs against Chander Pal and that fact comes to establish that it was handled negligently by its owner. Consequently, accountability of accused Prem Shankar has been established for offence punishable under section 289 of the Penal Code.
10. Shish Pal deposed that Chander Pal had gone to fetch water. After sometime, he also reached there and came to know that calf of mare, which was in possession of Prem Shankar had struck its hind legs against Chander Pal. Chander Pal was arguing with Prem Shankar in that regard. At that juncture, Deepak, son of accused Prem Shankar, reached there and grappled with them. Sukhbir, their neighbour, reached there and tried to pacify the matter. In the meantime, Deepak went to upstairs and pelted brickbats on them. One brick, pelted by Deepak, hit over head of Chander Pal. He also pelted another brick, which struck against his head. Sukhbir also sustained injuries on his hand.
11. Facts testified by Shishpal are reaffirmed by Sukhbir. He unfolds 7 that an altercation was going on between Prem Shankar and Chander Pal. By that time, Deepak went to roof top of his house and wielded a brick blow on his left hand. He hurled various bricks, which bricks hit over head of Shish Pal and Chander Pal. Prem Shankar also grappled with Chander Pal. Therefore, from facts detailed by Chander Pal, Shishpal and Sukhbir, it came to light that an altercation took place between Chander Pal and Prem Shankar, when calf of mare of the latter hit its hind legs to the former. Deepak went on roof top of his house and pelted brickbats from there. Chander Pal and Shish Pal sustained injuries over their head, while Sukhbir sustained injuries on his left hand.
12. Accused Deepak admits in his statement recorded under section 313 of the Code that he went to roof top of his house and pelted brickbats on Chander Pal, Shish Pal and Sukhbir, besides others. He took a stand that they caused injuries to his mother and in order to save her, he gave a telephone call to police and when no help was forthcoming, he went on roof top of his house and pelted brickbats on them. According to him, he did so in self defence of person of his mother. Right of self defence commences as soon as a reasonable apprehension of danger to a person or property arises and it continues so long as the danger lasts or property stolen is not recovered. The amount of force justifiable in exercise of right of self defence is as such as was strictly necessary for the purpose. Right of self defence of persons or property is constrained by limitation, viz (1) there is sufficient time for recourse to public authorities, in which situation right 8 of self defence is not available, (2) that more harm than, that is, necessary should not be caused, and (3) that there must be a reasonable apprehension of death or grievous hurt to the persons or damage to the property concerned.
13. Here in the case in hand, Deepak claims that his mother was being assaulted by Chander Pal, Shishpal, Sukhbir, Ram Kishan, Yogesh, Swaraj and Onkar. Not even an iota of fact has been brought over the record to the effect that an assault was made by these persons on his mother or there was an apprehension that they would cause death or grievous hurt to the lady. Neither Deepak nor his mother entered the witness box to establish such apprehension, which was prevalent in his mind. It was duty of Deepak to establish that there was danger to the life of his mother and so recourse to public authorities was available. No such facts has been brought over the record by him. Therefore, it is evident that there is vacuum of evidence over the issue. In such a situation, it cannot be said that Deepak acted in self defence of person of his mother and caused injuries to the aforesaid victims.
14. It has been testified by Chander Pal, Shish Pal and Sukhbir that Deepak went roof top of his house and pelted brickbats over them. Chander Pal and Shish Pal sustained injuries over their heads, while Sukhbir received fracture injuries on his left hand. Thus, it is evident that bricks were hurled with force by Deepak and he chose vital parts of body of his victims to cause injuries to them. When a brick is used with a force from a place of considerable height and an assault is 9 made on persons standing downwards, in such a situation brick may prove lethal. Here in the case, it has been brought over the record that successive blows were wielded by bricks, which blows hit over head of Chander Pal and Shishpal. A blow was also given on the left hand of Sukhbir. These aspects are sufficient to infer that there was an intention on the part of accused Deepak to attempt on lives of his victims.
15. Dr. V.K. Jain deposed that injuries sustained by Chander Pal were of dangerous in nature, caused by a blunt object. He further deposed that injuries sustained by Shish Pal were of grievous in nature, caused by a blunt object. There was a fracture on left forearm of Sukhbir, deposed Dr. Jain. Hence, opinion evidence of Dr. Jain makes it clear that grievous injuries were sustained by Shish Pal and Sukhbir, while injuries sustained by Chander Pal were dangerous to life. Result achieved by Deepak is sufficient to attribute knowledge to him to the effect that he knew that injuries which he was going to cause on the person of his victims were likely to cause death of the victims. Therefore, evidence brought over the record is sufficient to conclude that prosecution has been able to establish charge for offence punishable under section 308 of the Penal Code against accused Deepak.
16. Sukhbir had testified that Prem Shankar grappled with Chande Pal and caused injuries on his person. Chander Pal gives confirmation to facts testified by Sukhbir. Sukhbir also deposed that when he reached at the spot,he found Prem Shankar grappling with Chander Pal. From 10 these facts, it is evident that Prem Shankar voluntarily caused simple hurt to Chander Pal.
17. Evidence brought over the record is sufficient to adjudicate accountability of accused Deepak and Prem Shankar. They failed to raise even an iota of doubt in the case of prosecution. Evidence is overwhelming to articulate their guilt. Consequently, accused Deepak is held guilty for an offence punishable under section 308 of the Penal Code, since he attempted on the life of Chander Pal, Shish Pal and Sukhbir. Evidence brought over the record is also sufficient to hod accused Prem Shankar accountable for offences punishable under sections 323 and 289 of the Penal Code. Consequently, accused persons are held guilty and convicted for aforesaid offences.
Announced in the Open Court (Dr. R.K. Yadav) On this 3rd day of May, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi. 11 IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :Sessions Case No. 297/06
State Vs. 1. Prem Shankar S/o Gowardhan, R/o B303, Street No.8, Babu Nagar, Karawal Nagar, Delhi.
2. Deepak S/o Prem, R/o B303, Street No.8, Babu Nagar, Karawal Nagar, Delhi.FIR No. 394/02
PS Gokalpuri U/S 323/308/289 IPC.
ORDER ON THE POINT OF SENTENCE : I have heard the convict persons on the point of sentence. Sh. R.K. Srivastava, Advocate, submits that convict Deepak was 18 years of age on the date of incident. He further presents that it is first offence committed by the convict Deepak. According to him, Deepak has recently married and in case he would be sentenced to custodial sentence, then his life would be ruined. He further argued that convict persons are neighbours of Shishpal, Chander Pal, Sukhbir and others. Now convict persons have settled their grievances with the complainant party in a community panchayat. He argued that victims have been duly compensated by the convict persons. These facts are not disputed by Shishpal, Chander Pal and Sukhbir, who are present before the Court. They make it clear and submit that a sum of Rs.31,000/ has been paid to them by Prem Shankar towards compensation and now they have settled their grievances and want to live amicably. Sh. Srivastava argued that in view of changed 12 circumstances, convict persons may be dealt leniently.
2. On 05.10.02 at about 11pm, an altercation took place between convict persons on one hand and Sukhbir, Chander Pal and Shishpal on the other. Deepak went to roof top of his house and pelted brickbats on them, as a result of which, Shishpal, Chander Pal and Sukhbir sustained grievous injuries. However, it is not disputed on behalf of the State that Deepak was a young man, aged about 18 years, on the date of incident. It is also not disputed that now parties have settled their grievances and Sukhbir, Shishpal and Chander Pal have been duly compensated by the convict persons. Taking into account all these facts, I am of the considered opinion that it is a fit case, where leniency should be shown and an opportunity may be accorded to Deepak to reform himself. Consequently, convict persons are ordered to be released on probation for a period of two years, on their furnishing personal bonds in the sum of Rs.10,000/ each with one surety each of the like amount, with an undertaking to be of good behaviour for the aforementioned period, failing which they would come and receive sentence. Since Shishpal, Chander Pal and Sukhbir admitted that they have been duly compensated, convict persons are not ordered to pay compensation to them. However, they are called upon to deposit Rs.1000/ each as cost of proceedings. In case cost of proceedings are not paid, same would be recovered as fine. A copy of judgment and order on sentence be supplied to convict persons free of cost.
Announced in the Open Court (Dr. R.K. Yadav) On this 16th day of May, 2007. Additional Sessions Judge:
Karkardooma Courts, Delhi