Delhi District Court
State vs 1 Avtar Singh, on 7 May, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0038341995
Sessions Case No. 154/1/10
FIR No. 195/95
PS Saraswati Vihar
U/s 307 IPC
State Versus 1 Avtar Singh,
Son of Sh. Mohan Singh,
Resident of WZ-548,
Rishi Nagar, Rani Bagh,
Delhi.
Date of institution: 28.07.1995
Date of conclusion of arguments: 20.04.2015
Date of judgment: 07.05.2015
Memo of appearance
Sh. Sanjay Jindal, learned Addl. P.P. for State
Sh. Satinder Kr. Garg, learned counsel for complainant
Sh. Ajay Burman and Sh. Rajesh Samanotra, learned defence counsels
JUDGMENT
1 Krishna Hospital, Pitam Pura flashed Information to PS Saraswati Vihar regarding admission of one injured in their hospital on 01.04.1995. It was reduced in writing vide DD No. 21and ASI Baldev Singh was deputed to rush to the hospital for necessary action. He accordingly reached Krishna Hospital and enquired about injured. He learnt that one Paramjeet Singh was being operated upon. He collected his MLC. Palwinder Singh, brother of injured was also met at the hospital. He was eye-witness to the occurrence.
2 Palwinder Singh revealed that his brother Paramjeet Singh was in the business of dairy and used to sell milk. They both had gone to house of accused Avtar Singh that day at about 5.15 PM for collecting dues of Rs. 2,500/- on account of milk supply. When Paramjeet Singh demanded said sum, accused started abusing. When he was asked not to abuse, he went inside his house and came out with kirpan and stabbed the same in the abdominal region FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 1 of 17 of Paramjeet.
3 On the basis of said statement, FIR was registered for offence under Section 307 IPC. Further investigation was carried out and statement of Paramjeet Singh was also recorded who also claimed that he had been stabbed by accused Avtar Singh by kirpan.
4 Charge-sheet was filed in the concerned Magisterial Court on 06.05.1995 and case was committed to the Court of Sessions vide order dated 24.07.1995.
5 Accused was charged under Section 307 IPC vide order dated 11.04.1997. He pleaded not guilty and claimed trial.
6 Prosecution was directed to adduce evidence and examined seven witnesses viz PW1 Ct. Yudhvir Singh (for proving DD entry), PW2 Sh. Paramjeet Singh (injured), PW3 Dr. Rajesh Kumar Soni (from Krishna Hospital), PW4 Sh. Palwinder Singh (eyewitness), PW5 HC Bodh Raj (MHCM), PW6 ASI Prabhat Sharma (2nd IO) and PW7 ASI Baldev Singh (1st IO).
7 Accused, in his statement recorded under Section 313 Cr.P.C. pleaded innocence and claimed that he has was innocent. In response to Question No. 18, he answered as under:-
I am innocent. On 01.04.1995 when I was present at my house, injured Paramjit Singh, his brother Palwinder Singh, Narinder Singh @ Bhola another brother of the injured with their father Sardar Kishan Singh criminally trespassed into my house duly armed with weapons including kirpan to kill me to take revenge from me as to why I had gone against the wishes of Kishan Singh-father of the injured who was working as Supervisor upon me in Northern Railway, Diesel Shed. Kishan Singh father of the injured wanted to give me a kirpan blow. I, in order to save myself, averted the attack and in the process Paramjit Singh who was standing behind me received kirpan injury with the kirpan of his own father. I have also filed a criminal complaint case against the above four persons in FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 2 of 17 which all the above four persons have been summoned as an accused in case u/s 323/452/506/34 IPC by the court of Shri Pawan Kr. Jain, ld. MM, Delhi after receiving a report from the police u/s 156 (3) Cr.P.C.
8 He, initially, desired to lead evidence in defence but eventually did not lead any evidence and accordingly defence evidence was closed.
9 It would be pertinent to mention here that earlier final arguments had been heard and accused Avtar Singh was also held guilty for offence under Section 307 IPC and was sentenced to RI for 10 years besides fine of Rs. 5,000/- in default to undergo SI for two years. Such judgment was pronounced on 14.08.1998 by the then Presiding Officer of the court i.e. Sh. Naipal Singh the then learned ASJ.
10 As already noted above, accused Avtar Singh has pleaded false implication. It will be very handy to mention right here that in order to prove his such assertion, he filed a separate complaint on 10.05.1995 which was directed against four accused persons i.e. Kishan Singh (father of injured Paramjeet Singh), Paramjeet Singh(PW2 herein) and against Palwinder Singh(PW4 herein) & Narinder Singh @ Bhola (brothers of Paramjeet Singh). In such complaint, he claimed that the kirpan was with accused Kishan Singh who attacked him with such kirpan but he (Avtar Singh) tried to save himself and in the process, such kirpan blow given by Kishan Singh hit his own son Paramjeet Singh. He claimed that he was also given beatings and he received injuries on different parts of his body. He, therefore, prayed that action be taken against all such accused persons for offences under Sections 323/452/506/34 IPC. The concerned magisterial court ordered investigation under Section 156 (3) Cr.P.C. and matter was sent to SHO PS Saraswati Vihar for investigation. Final report was submitted by police on 27.06.1995 and learned Metropolitan Magistrate, after perusing the record and police report submitted by SHO, Saraswati Vihar, held that there was sufficient material against accused Kishan Singh and his three sons to summon them for offences under Sections 323/452/506 Part-II/34 IPC. Such order dated 14.08.1995 was assailed in revision.
FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 3 of 1711 It will be also advantageous to mention here that such revision had also been allocated to the court of Sh. Naipal Singh, the then learned ASJ and when learned court held accused Avtar Singh guilty in case FIR No. 195/95 under Section 307 IPC PS Saraswati Vihar, it simultaneously, allowed the revision petition and set aside the summoning order.
12 Accused Avtar Singh, feeling aggrieved, filed appeal against his conviction and sentence under Section 307 IPC and also filed petition against dismissal of his complaint. Both these matters i.e. Criminal Appeal No. 332/1998 & Criminal Revision No. 414/98 were taken up by the Hon'ble High Court of Delhi and were disposed of by common judgment dated 27.07.2009. Para-13 of such judgment reads as under:-
In view of the aforesaid, I have no hesitation to hold that the impugned judgment dated 18.08.1998 delivered by the Additional Sessions Judge convicting the appellant/petitioner under Section 307 IPC in Sessions Case No. 88/97 and allowing revision petition 1/98 cannot be sustained. As such, I set aside the judgment dated 14.08.1998 and allow the appeal as well as the revision petition with the following directions to the Additional Sessions Judge to whom the case will be marked by the learned District Judge (Rohini):-
(i) The parties to appear before the learned District Judge (Rohini) on 27.08.2009.
(ii) The Additional Sessions Judge will decide the Revision petition bearing No. 1/98 filed by respondent Nos. 1 to 4 against the summoning order dated 14.8.1995 in Complaint Case No. 18/1/95 after hearing the arguments from both the sides and after taking into consideration the record of the complaint case. In case the Additional Sessions Judge does not find favour with the summoning order taking into consideration the record of that case, the trial court may pass appropriate orders and may deliver judgment in Sessions Case No. 88/97. However, if the Court of Additional Sessions Judge finds that the summoning order is required to be maintained, then the said court itself try that case further as a complaint case and will record the evidence of the complainant and his witnesses and thereafter, if charges are made out against respondent nos. 1 to 4, will try them in connection with the said complaint and thereafter, will record the statement of respondent Nos. under Section 313 Cr.P.C. and will also give them an opportunity to defence evidence, if any, and will then FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 4 of 17 hear the arguments in the said case and then reserve its decision.
(iii) It is thereafter the Additional Sessions Judge will pronounce separate judgments in both the cases.
(iv) It is made clear that while deciding the revision petition the Trial Court shall not influence by the evidence which has been recorded in the Police case and vice-versa.
13 In view of aforesaid, said revision petition was taken up afresh by my learned Predecessor and was dismissed vide order dated 07.02.2012. Resultantly, the summoning order was maintained. In view of the specific directions of the Hon'ble High Court of Delhi, said complaint case was tried further and same is also fixed for pronouncement of judgment today.
14 As far as the state case i.e. instant case is concerned, it remains in the same state as it was earlier. As per the clear-cut directions of the Hon'ble High Court of Delhi, this Court is now required to pronounce separate judgment in each case while not getting influenced by the evidence recorded in the other.
15 Let me now come back to the present case.
16 Sh. Jindal, learned Addl. P.P. has contended that prosecution has been able to prove it's case to the hilt. He has contended that testimony of injured Paramjit Singh and his brother, who happens to be the material eyewitness, clearly indicates that accused Avtar Singh had given serious kirpan blow with evident intention to eliminate him. He has argued that the intention to kill can be gauzed from the intensity of the blow as the kirpan pierced the front abdominal region and virtually reached the rear. He has also contended that accused has tried to come up with a concocted story that Paramjit Singh was hit by blow given by his own father. He has argued that even otherwise defence has not been able to substantiate it's such version in any manner whatsoever. He has also supplemented that medical evidence fully confirms it to be a case falling under Section 307 IPC. Sh. Satinder Kr. Garg, learned counsel for complainant has also come up with same set of arguments.
FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 5 of 1717 Sh. Burman and Sh. Samanotra, learned defence counsels have, on the other hand, refuted all the aforesaid contentions. According to them, accused Avtar Singh has been falsely implicated. It has been reiterated by them that complainant party comprising of Paramjit Singh, Palwinder Singh, Narinder @ Bhola and Kishan Singh had come together and they had come with a pre- planning while having clear intention to rather kill Avtar Singh. It was only good fortune of Avtar Singh that he displayed exemplary presence of mind and was able to save himself by jumping aside at the right moment and to the misfortune of Kishan Singh, the blow, which was even otherwise intended for Avtar Singh, pierced Paramjit Singh.
18 They have also assailed the prosecution case on following grounds:
(i) There are material contradictions appearing in the deposition of PW2 Paramjit Singh and PW4 Palwinder Singh.
(ii) There was no question of supply of any milk to Avtar Singh by Paramjit Singh. Therefore, there was no reason for him to have come to the house of Avtar Singh.
(iii) Complainant party was aggressor and they had come armed with a clear premeditation and the police has suppressed the genesis of the origin of occurrence.
(iv) There is no explanation as to why the injured was taken to a private hospital instead of government hospital. If at all Palwinder Singh had rushed his brother Paramjit Singh to hospital then he must have disclosed the name of the injured to the doctor whereas as per DD No. 21, concerned hospital authorities had informed the police that the name and address of the injured was not known which clearly belies the stand of Palwinder Singh.
(v) Bloodstained clothes of Palwinder Singh, who had allegedly taken his injured brother to hospital on motorcycle, have not been seized.
(vi) Weapon of offence has not been recovered which clearly signifies that accused was not the author of the blow in question.FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 6 of 17
(vii) Prosecution has miserably failed to explain the injuries received by accused.
(viii) No blood spots were lifted from the place of alleged occurrence to corroborate the version of prosecution.
(ix) There is no independent witness.
(x) Accused has been able to substantiate his defence
version by leading evidence in the connected complaint case.
19 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record. I have also weighed up the written submissions filed by both the sides.
20 Let me straightaway come to the testimony of victim.
21 PW2 Sh. Paramjit Singh has deposed that he was running a dairy business and used to supply milk to various persons. Accused Avtar Singh was also his customer. For the months of February & March 1995, payment against milk bill was due which was around Rs. 2,500/-. He further deposed that on 01.04.1995 he along with his brother Palwinder Singh had gone to Avtar Singh to collect money and when at 5.15 PM, they reached the house of accused, they called him and demanded payment but strangely, accused started abusing both of them and then sarcastically claimed "Tume Abhi Paise Deta Huin" (I give you money just now) and the accused went inside and brought out kirpan and stabbed the same in his stomach. PW2 Paramjit Singh further deposed that blood started oozing out of his injury and he became unconscious and his brother took him to Krishna Hospital where he was treated and operated upon. He has also deposed that police recorded his statement 3-4 days after the incident. He deposed that he received stab injury on the left part of his stomach and the blow had even penetrated his back portion. He remained in Krishna Hospital for about 17-18 days and from there he was discharged but since he was not fully cured, he was taken to GB Pant Hospital where he remained admitted for 5-6 days and was again operated upon. He also deposed that he was wearing pink color shirt and vest and both these clothes got stained with FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 7 of 17 blood. These were produced before the Court during trial and he identified his shirt as Ex. P-1 and vest (banian) as Ex. P-2.
22 PW4 Sh. Palwinder Singh has also supported his brother. He has deposed that on 01.04.1995 at about 5.15 PM, he along with Paramjit Singh had gone to the house of Avtar Singh. He also deposed that he knew accused before the incident as he was customer at the dairy of his brother and they had gone there to collect payment of bill of milk which was Rs. 2,500/-. He also deposed that when money was demanded, accused started abusing them by saying "mather chod kutte dudh mein pani milate ho aur paise mangte ho". (Mother Fucker dog, You mix water in milk and demand money) PW4 Palwinder Singh further deposed that accused then also claimed that "aaj tume mein paise de hi deta huin" and then went inside his house and brought out a kirpan and stabbed Paramjit Singh on left side of his stomach. PW4 Palwinder Singh has also deposed that they had come on motorcycle and he immediately took his brother to Krishna Hospital and got him admitted there. He also testified that police had come to the hospital at about 6.45 PM where his statement was recorded. He has also proved his statement Ex. PW4/A and also identified the bloodstained clothes of his brother which had been seized by the police vide memo Ex. PW4/B. 23 PW7 ASI Baldev Singh had been deputed to reach the hospital on receipt of DD No. 21.
24 Let me now see the sequence of events from the angle of investigation.
25 As per injured, incident had taken place at around 5.15 PM and he was taken to Krishna Hospital by his brother Palwinder Singh. DD No. 21 dated 01.04.1995 was recorded at PP Shakur Pur PS Saraswati Vihar and it has been proved as Ex. PW1/A. As per said DD No. 21, Dr. Tyagi of Krishna Hospital had telephonically informed that one person from Sant Nagar had been admitted in injured condition and his name and address was unknown and some police official may be sent. Such DD has been proved as Ex. PW1/A by PW1 Ct.
FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 8 of 17Yudhvir Singh. His testimony is unrebutted and uncontroverted.
26 PW3 Dr. Rajesh Soni has appeared on behalf of Krishna Hospital. He was the one who had examined the patient and had given his final report. He has also deposed in his cross-examination that patient had come to their hospital at about 5.45 PM and was examined by him at 6.00 PM. Defence did not attempt to put any question to PW3 Dr. Soni as to who had brought the patient to the hospital. No question was put about Dr. Tyagi either. I have also seen the MLC No. 28/95 given by Krishna Hospital and in such MLC, name, address and other details of injured Paramjit Singh have been mentioned. As per one another certificate appearing on record, Krishna Hospital also certified that Paramjit Singh had been brought by his brother Mr. Palwinder Singh and police had been informed regarding the incident. Sadly, such second certificate is somehow lying unproved but fact remains that it is very much evident that injured had been admitted in the hospital at 5.45 PM and information was immediately flashed to the police. It seems that while giving such critical and urgent information to the police, concerned doctor or official of such hospital missed out on furnishing details as regards the person who had brought the injured to the hospital etc. but such lapse or omission would not mean and indicate that Palwinder Singh had not brought his brother to the hospital. I have the specific oral testimony before me. I do not find any reason to distrust either injured or his brother Palwinder Singh on this particular aspect of the case. Moreover, as already noticed above, when Dr. Soni entered into witness box, no question in this regard was put to him by the defence. Undoubtedly, prosecution should have been extra cautious and should have also proved the other certificate dated 01.04.1995 issued by Krishna Hospital but the lapse on this aspect would not sway me to hold that Palwinder Singh had not brought Paramjit Singh to the hospital.
27 Said aspect highlighted by defence does not seem to have any essence for one other reason also. Immediately on receipt of DD No. 21, PW7 ASI Baldev Singh was deputed for investigation. He reached hospital along with Ct. Joginder and learnt that Paramjit Singh was being operated upon. He met Palwinder Singh then and there and recorded his statement. PW7 ASI Baldev FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 9 of 17 Singh has categorically deposed that he recorded statement Ex. PW4/A of Palwinder Singh and attested the same and thereafter he prepared rukka Ex. PW7/A and sent the same to PS for registration of FIR.
28 I have seen such rukka and it becomes evident that police had met Palwinder Singh at the hospital immediately and Palwinder Singh also stated to investigating officer that he himself had brought his brother to Krishna Hospital. Rukka was prepared at 6.45 PM and was sent to PS. No question was put to PW7 ASI Baldev Singh regarding DD No. 21. There is no suggestion indicating that Palwinder Singh was not met at the hospital or that Palwinder Singh had not brought his brother Paramjit Singh to the hospital. It is also not possible that Palwinder Singh would dream up a story in no time and would supply the same to police at the hospital itself. Accordingly, I do not find any merit in the defence contention on this score.
29 I have also carefully perused the cross-examination of injured Paramjit Singh and eyewitness Palwinder Singh and I have not been able to notice any material contradiction. Discrepancies normally occur in any criminal trial. These can be divided into two categories viz normal discrepancies and material discrepancies. Normal discrepancies occur due to normal errors of observations, normal errors of memory due to lapse of time or due to mental disposition such as shock, trauma at the time of occurrence. The mental faculties cannot be expected to be attuned to absorb all the details with complete precision and to reproduce those ad verabtim later in deposition. Material discrepancies are, however, those which are not usual and are not expected from a normal person. While normal discrepancies do not corrode the credibility of the case, material discrepancies do. In the case in hand, contradictions pointed out by the defence are those which are superficial and do not reach the core. Sh. Burman has contended that both the material witnesses have, in their statements on oath before the Court, talked about abuses allegedly hurled by accused but such fact is found mentioned in their statements recorded by the police and, therefore, they are clearly coming up with improvements and material contradictions. I, however, do not find any significance in such assertion. Such fact cannot be labelled as deviation or improvement. PW4 FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 10 of 17 Palwinder Singh, in his statement Ex. PW4/A, stated to the police that accused had indulged into abuses (gaali-galoch karne lag gaya). Similar is the version of injured PW2 Paramjit Singh. Merely because they have spelt out elaborately about such abuses would not mean that there is any contradiction or improvement.
30 I have seen the statement given by Paramjit Singh under Section 161 Cr.P.C. In his such statement, he claimed that he was in the business of dairy and also claimed that he had gone to the house of Avtar Singh for collecting sum of Rs. 2,500/-. Of course, he cited different reason and claimed in his said statement before the police that he had earlier given amount to Avtar Singh and had gone to take back the same. Thus, there is variation in this regard as in witness box, PW2 Paramjit Singh deposed that money was due on account of milk supply. I, however, cannot be oblivious of the fact that injured Paramjit Singh was in critical condition. He had received serious stab injuries and had been operated upon and, therefore, it is quite possible that he might not have been in a position to give correct narration to the police. Be that as it may, the anomaly on this score appearing in the testimony of PW2 Paramjit Singh would not mean and indicate that incident had not happened at all.
31 Moreover, as far as PW4 Palwinder Singh is concerned, he has categorically deposed in his examination-in-chief that they had gone to collect money on account of supply of milk and even in his statement before the police i.e. Ex. PW4/A, he claimed that they had gone to collect money on account of milk supply. I would like to highlight right here that even the defence does not dispute that Paramjit Singh and Palwinder Singh had come outside the house of accused that day though according to them, they had come armed along with two others and they never demanded any money and instead started giving beatings to Avtar Singh with weapons and fists.
32 According to Sh. Burman, the genesis of the origin of incident has been twisted and suppressed by the prosecution. He has contended that both the aforesaid witnesses i.e. injured Paramjit Singh and alleged eyewitness Palwinder Singh had come along with their another brother Narinder @ Bhola FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 11 of 17 and their father Kishan Singh with pre-planning as they all were armed. He has also argued that complainant was in Railway service and Kishan Singh (father of injured Paramjit Singh) and PW4 Palwinder Singh were also working in the Railways i.e. Diesel Shed, Shakur Basti, Delhi and altercation had taken place between accused Avtar Singh and Kishan Singh at workplace and, therefore, Kishan Singh had given threat to Avtar Singh that he would see him at his residence same evening as Avtar Singh had tried to disobey his official instructions. Sh. Burman has contended that therefore, Kishan Singh had come along with his three sons and they had given mercilessly beatings to accused Avtar Singh and when Kishan Singh attempted to give a kirpan blow to Avtar Singh, Avtar Singh jumped just in nick of time and was able to save himself from such blow but Kishan Singh could not keep under control his blow and such blow pierced the stomach of his own son Paramjit Singh.
33 I am, however, not ready to buy such defence story. Reasons are as under:
(i) If defence is to be believed then four persons had come to the house of Avtar Singh and they all started giving beatings to Avtar Singh. Even after the alleged blow given by Kishan Singh landed on the stomach of his own son Paramjit Singh, Paramjit Singh, as per defence version, was able to flee away of his own and the other three persons continued to give beatings to complainant for few minutes giving damn to the fact that Paramjeet had received such a serious blow. This does not seem to be logical and plausible.
(ii) If defence is to be believed, all such persons had come armed with lathies and iron pipes and had given beatings to Avtar Singh. If it is assumed to be true then as an automatic inference, Avtar Singh should have received multiple serious injuries and in such a situation, he would not have escaped unhurt with bare pain and swelling. After all he was all alone and was given thrashing by four armed persons. However, MLC of Avtar Singh tells a different tale. Such MLC has been proved as Mark A by defence. Curiously enough, defence had merely got the same marked by showing the same to PW4 Paramjit Singh. I have seen the charge-sheet very carefully. Prosecution has cited ten FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 12 of 17 witnesses and it is very much apparent that police did not cite any witness from DDU Hospital. Therefore, onus and burden was on defence to properly substantiate its theory and to summon the concerned doctor from DDU hospital in its defence in order to prove that he had received serious injuries. Except for showing MLC to Palwinder Singh, defence did not take any step to call any official or doctor from DDU Hospital. Undoubtedly, in the complaint case, Avtar Singh has examined Dr. Lalit Kumar of DDU Hospital but in view of the specific directions contained in judgment dated 27.07.2009 passed by Hon'ble High Court of Delhi, this Court is required to pronounce separate judgment and is not to be influenced by the evidence recorded in the other case. Moreover, even if such MLC is admitted to be correct, it does not advance the case of accused as it indicates superficial injuries in the shape of pain and swelling. As per such MLC, Avtar Singh had received simple blunt injuries. His external examination revealed pain and swelling on left knee and pain and swelling in right forearm.
He was advised x-ray but as noticed above, as per the opinion of the doctor, he had received simple injuries. He did not suffer any fracture. Thus MLC rather runs contrary to the defence theory.
(iii) Defence has utterly failed to explain as to why Avtar Singh reported DDU Hospital at 10.35 PM if at all he had received serious injuries at 5.15 PM. Defence has not been able to elucidate the time-lag.
(iv) According to accused Avtar Singh, those four persons had come armed with lathies and iron pipes and as per defence story, when all those four persons fled away after causing injuries to Avtar Singh, they left behind their turbans (pagri), chappals (slippers) and iron pipes which were taken into possession by local police. Suggestion to that effect has also been put to PW2 Paramjit Singh and PW4 Palwinder Singh. They denied such suggestions. Curiously enough, no such suggestion was put to PW7 ASI Baldev Singh or to PW6 ASI Prabhat Sharma. Onus was on accused to summon any such record from the concerned PS to substantiate this theory. No step was taken in this direction which clearly indicates the hollowness and falsity in the defence story. If at all any such article had been seized by the police, there would have been some official record and since defence did not take any step to summon any FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 13 of 17 such record, only logical inference is that there was no such type of seizure at all. Thus, defence version is nothing but a concocted one.
34 Undeniably, weapon of offence has not been recovered but such aspect, in itself, would not mean that no incident had taken place. I have seen the testimony of PW3 Dr. Rajesh Soni and he has categorically deposed that on external examination, he had found stab wound on left side of abdomen just below postal margin in anti auxiliary line measuring 3 cm x 1.5 cm going deep in peritoneal cavity. On internal examination, he found that injury was almost completely transacting large bowels just below the splanic flexure. He also opined that nature of injuries was sharp and grievous. In his cross-examination, he also claimed that blow had totally cut the large intestine and, therefore, he found injury to be grievous. Nature, size and intensity of the injury clearly suggest that such injury was possible by kirpan. Moreover, even defence does not dispute that injury was by kirpan though according to defence story, author of the blow was not accused but father of injured. In such a situation, when even defence admits that injury was by kirpan, non-recovery of kirpan pales into insignificance.
35 Sh. Burman has contended that it is not made clear by the prosecution as to why accused became so furious and enraged on a demand of paltry amount of Rs. 2,500/-. He has argued that it does not stand to reason that merely because of such demand of amount, allegedly on account of milk supply, anyone would become so agitated that he would attempt to kill someone with kirpan. I agree with him but one cannot always visualize the turn of events. On number of occasions, situation becomes ugly in no time. Sometimes, the minuscule verbal exchange of words can also aggravate the situation.
36 I am mindful of the fact that Palwinder Singh and Kishan Singh were also colleagues of Avtar Singh and there is a remote possibility that Palwinder Singh might have confronted Avtar Singh with respect to any altercation which might have already taken place at workplace but, nonetheless, accused had no business to hit Paramjit Singh with sword/kirpan. He should have rather shown restraint and it is now too late for him to pass the buck on to the complainant FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 14 of 17 party and to challenge the veracity of the case by claiming that there was no motive for him to have given any such blow to PW2 Paramjit Singh.
37 Undoubtedly, injured and his brother had come to the house of accused but such fact itself would not make them aggressor. As already noticed above, injured and his brother had gone to the house of accused Avtar Singh to collect payment. When money was demanded, it was rather accused who became infuriated and started abusing and went inside his house and came out with a kirpan and gave ferocious blow to PW2 Paramjit Singh. Word "aggressor" cannot be construed in a mechanical manner. It has to be understood in the context of the factual matrix of any given case. Mere visit to other's place is not an act of aggression. In the instant scenario, it would be highly fanciful to hold complainants aggressor merely because of the fact that they had come to the house of accused.
38 Sh. Burman has contended that there is no record with respect to supply of milk and moreover accused never used to buy any milk from Paramjit Singh and since no record has been produced, it becomes very much obvious that case of the prosecution is concocted one. I, however, do not find any substance in such contention of the defence either. Supply of milk to different households is not an activity which involves maintenance of record or account books. Moreover, when Paramjit Singh had entered into witness box, defence could have asked him to produce any such record with respect to running of his dairy and with respect to supply of milk to accused and other people. No such record was demanded. Moreover, even if it is assumed for a moment that complainant had come to the house of accused in connection with the alleged altercation which had taken place at the workplace, accused had no business to attack with kirpan.
39 I have already mentioned above regarding superficial injuries received by accused. He reported to the hospital after considerable delay. Incident took place at 5.15 PM and he reported to hospital at 10.35 PM and even the injuries received by him were in the shape of simple swelling and pain and in view of aforesaid, defence is not justified in claiming that non-explanation of FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 15 of 17 injury has caused any adverse impact over the case of prosecution.
40 I also do not find any reason to disbelieve or discard the case of prosecution merely because the injured was rushed to a private hospital. On most of the occasions, injured is rushed to the nearest hospital- be it government or private. PW4 Palwinder Singh has deposed that he immediately took his brother to Krishna Hospital. Incident took place at Rishi Nagar and Krishna Hospital is situated at Chander Lok Vihar, Pitam Pura which is quite close to the place of occurrence.
41 PW4 Palwinder Singh has deposed that he had taken his brother to the hospital on motorcycle by making him sit on pillion. It is quite probable that even the wearing clothes of PW4 Palwinder Singh might have got stained with blood during such process of transportation. It would have been little bit advantageous if such bloodstained clothes of PW4 Palwinder Singh had also been seized by the police but merely because such clothes were not seized, the entire case of prosecution cannot be thrown away and thrust aside.
42 Sh. Burman has also contended that there is no corroboration from independent corner and the prosecution cannot be permitted to prove its case merely from the testimony coming from the mouth of interested witnesses. I am conscious of the fact that Palwinder Singh and Avtar Singh were working in Railways. They were co-workers. I am also mindful of the fact that incident had taken place in a crowded residential area outside the house of accused but it is also harsh reality that on most of the occasions, public persons do not come forward. They are reluctant in joining such type of investigation. They do not want to come to Courts and do not want themselves to be indulged in any litigation more so when their interest is not at stake. I would, however, like to mention here that even as per defence version, one Mohan Singh (neighbour) had seen the incident with his own eyes. He was also, as alleged by defence, corroborating the version of accused only. Avtar Singh could have very well examined him in his defence. However, no effort in that direction was made. It is also worthwhile to mention here that said Mohan Singh was examined in cross complaint case and in that case, such Mohan Singh did not support the version FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 16 of 17 of Avtar Singh at all. It seems that, therefore only, accused Avtar Singh did not dare to bring him in witness box in the present case.
43 In view of my foregoing discussion, it becomes very much evident that injured i.e. PW2 Paramjit Singh and his brother PW4 Palwinder Singh had gone to the house of accused Avtar Singh on 01.04.1995 to collect money from him. At about 5.15 PM, when money was demanded from accused, he rather started abusing and then brought out one kirpan from his house and stabbed Paramjit Singh with the help of such kirpan.
44 MLC of Paramjit Singh has been proved as Ex. PW3/A and as per the deposition of PW3 Dr. Rajesh Soni, the internal injury was almost completely transacting the large bowels i.e. large intestine and had cut the same and, therefore, he had opined the injury as grievous. Blow was given on a very vital and delicate part of body and the blow was a fierce and solid one as it even cut the large intestine. Thus, act was done with such intention or knowledge and under such circumstances that if death was the ultimate result, the offender would have been guilty of murder. Avtar Singh knew about the consequences arising out of his act. He went inside his house and returned with kirpan and immediately stabbed Paramjit Singh with such kirpan in his abdominal region which clearly reveals that he had intention of causing such bodily injury as was likely to cause death.
45 Upshot of my foregoing discussion is that the prosecution has been able to prove its case to the hilt. Resultantly, accused Avtar Singh is held guilty and convicted for commission of offence under Section 307 IPC.
Announced in the open Court On this 07th day of May 2015.
(MANOJ JAIN) Addl. Sessions Judge (FTC) North-West District, Rohini: Delhi FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 17 of 17 FIR No. 195/1995 PS Saraswati Vihar State Vs. Avtar Singh Monday, May 11 2015 Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
Convict Avtar Singh in person with his brother Jasvinder Singh.
1 Convict has submitted written submissions on the point of sentence.
2 I have heard Sh. Jindal as well as convict.
3 Sh. Jindal has contended that case is of serious magnitude. A very ferocious and strong blow had been given by the convict which pierced abdominal region of Paramjit Singh and convict does not deserve any compassion or leniency.
4 Convict has, on the other hand, reiterated that he has been falsely implicated in the matter and re-asserts that he was not the author of the blow and rather Kishan Singh, who wanted to attack him, eventually caused injuries to his own son Paramjit Singh. Convict has also claimed that he has already spent more than 21 months behind the bars. He has also claimed that he never misused the concession of bail and appeared before the Court punctually and regularly. He has also claimed that his wife is patient of hypertension, diabetes and arthritis. She is also reportedly a cardiac patient. and keeping in mind these facts, convict has prayed that he be let off on the period already undergone by him.
5 I cannot be unmindful of the fact that incident is of the year 1995. Indubitably, earlier convict had been held guilty and convicted and was handed out sentence of 10 years besides fine. However, that was way back in the year 1998 and much water has flown down thereafter as even Paramjit Singh (injured in the present case) is no longer alive.
6 Convict Avtar Singh is reportedly having no other criminal involvement or previous bad antecedents of any nature whatsoever.
FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 18 of 177 I have seen various certificates which he got while he was working in Northern Railways and also when he was confined to Central Jail No. 2, Tihar. All such original certificates have been shown to the Court by his brother and have been returned back to him.
8 Keeping in mind the overall facts and circumstances of the case, convict Avtar Singh is sentenced RI for a period of five years and fined Rs. 50,000/- in default thereof, convict would further undergo SI for a period of six months. Half of the fine amount would go as compensation to surviving legal heir (s) of Paramjit Singh. This would be naturally subject to the outcome of appeal, if any.
9 Fine has not been deposited.
10 Convict be sent to jail under appropriate warrants.
11 Needless to say that convict would be entitled to benefit of Section 428 Cr.P.C.
12 A copy of the judgment and order on sentence be given to convict free of cost.
13 File be consigned to Record Room.
(MANOJ JAIN) ASJ (FTC): N-W Distt: Rohini: Delhi 11.05.2015 FIR No. 195/95 PS Saraswati Vihar (State Vs. Avtar Singh) Page 19 of 17