Delhi District Court
The State vs Rajan S/O Sh Sunil Mishra on 14 August, 2014
D.O.D 14.08.2014 FIR no. 101/2011
P.S Kanjhawalan
u/s 323/308 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 36/2014
UID NO . : 02404R0369412011
FIR No : 101/11
P. S : Kanjhawala
u/s : 323/308 IPC.
The State versus Rajan S/O Sh Sunil Mishra
R/O B -157, Jawala Puri, Nangloi
Camp no. 4, Delhi .
Date of committal to session court : 19.12.2012
Date of argument : 13.08.2014
Date of order : 14.08.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that on 1.5.2011 at about 8:30 pm , Sajjat(PW2) alongwith Saddam(PW1) were sitting outside the ice shop of Shamimum(PW3) mother of Sajjat (PW2) situated on Mangal Bazar Road in K Block, JJ Colony Sawda. Accused Rajan alongwith 2/3 of his SC No. 36/14 State vs Rajan (Page 1 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC associates came there all of a sudden and at that time accused Rajan was having a round danda with him and he hit Sajjat (PW2) with that danda on his head as well as on his body. Accused Rajan also hit Saddam(PW1) on his head with that danda due to which he received injuries above his left eye. In the meanwhile Shamimum(PW3) mother of Sajjat (PW2) also reached there and on seeing the quarrel tried to intervene but accused Rajan hit Shamimum (PW3) also with the danda and thereafter ran away from the spot.
2. It is the further case of the prosecution that accused Rajan hit Sajjat (PW2) and Saddam(PW1) in order to kill them as about 3-4 days prior to the incident accused Rajan under the intoxication of liquor was quarelling with one old man to which Sajjat (PW2) had objected and for this reason he was annoyed with him. HC Kanchi Lal on 1.5.2011 who was posted with PCR reached at the spot where three injured persons namely Sajjad(PW2),Saddam(PW1) and Smt Shamimum(PW3) SC No. 36/14 State vs Rajan (Page 2 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC were found. They took all the three injured to Sanjay Gandhi Memorial Hospital and got them admitted there .
3. The said information was recorded at P.S Kanjhawala vide DD no.35 A. It is the further case of prosecution that on receipt of DD no.35 A, ASI Balbir alongwith Ct. Rajpal reached at K Block, JJ Colony, Sawda where they came to know that three injured persons have been removed to SGM Hospital by PCR. They reached at the hospital and found injured Sajjat(PW2), Saddam(PW1) and Shamimum(PW3) admitted there. MLC's of injured persons were obtained and statement of Saddam Hussain was recorded and on the basis of same FIR was got registered. Accused Rajan was arrested on 3.5.2011 at the instance of Saddam(PW1). On completion of investigation accused Rajan was chargesheeted for offence u/s 323/325/308 IPC .
4. Vide order dated 27.8.2011, Ld MM took the cognizance of the offences and subsequently, SC No. 36/14 State vs Rajan (Page 3 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC since the offence u/s 308 IPC was exclusively triable by the court of sessions, therefore, vide order dated 19.12.2012, case was committed to the court of sessions .
5. Vide order dated 14.01.2013, ld predecessor of this court decided the charges and accordingly, charge for the offences u/s 323/308 IPC were framed against the accused to which he pleaded not guilty and claimed to be tried.
6. In order to prove its case, prosecution has examined as many as Nine witnesses.
7. PW1 Saddam is the complainant and one of the injured in the present case. He deposed that on 1.5.2011 at about 8:30 pm, he alongwith Sajjat(PW2) were sitting outside the shop /khokha of Sajjat(PW2) which is situated at Mangal Bazar road in K Block. Accused Rajan alongwith some other person came there and hit him on his head as well as on the head SC No. 36/14 State vs Rajan (Page 4 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC of Sajjat with a round danda all of a sudden. He got injury above his left ear and Sajjat received injuries on whole body as well as head. Mother of the Sajjat also reached there in order to save both of them but accused Rajan hit mother of Sajjat also and thereafter ran away from the spot. PCR Van reached there and took all of them to the hospital. Police recorded his statement ExPW1/A. PW1 was not supporting the case of the prosecution completely therefore, he was declared hostile and was cross examined by the ld Addl PP for state.
8. PW2 Sajjat is another injured in the present case. He deposed that on 1.5.2011, he alongwith Saddam were sitting outside their shop at K Block on Mangal Bazar road and his mother was running an ice shop at the corner of the gali in which their shop is situated. Accused Rajan alongwith 2-3 associates came there all of a sudden and at that time he was having a round danda with him and he hit him with that danda on his head as well as on the whole body. Accused Rajan also hit Saddam on his head with that SC No. 36/14 State vs Rajan (Page 5 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC danda due to which he received injuries above his left ear. In the meanwhile his mother also reached there and tried to save them but accused Rajan hit his mother also with that danda. Thereafter, accused ran away from the spot.
9. PW2 Sajjat further deposed that about 3-4 days prior to the incident accused Rajan under intoxication of liquor was quarreling with one old man for which he had objected. Accused Rajan get annoyed and due to this reason he hit him and Saddam in order to kill them. PW2 was cross examined by the ld counsel for the accused.
10. PW3 Shamimum, mother of Sajjat (PW2) also testified on the lines of PW2 Sajjat and PW1 Saddam.
11. PW4 ASI Ashok Kumar is the duty officer who proved the registration of DD no.35 A ExPW4/A regarding receipt of information that one boy was injured in K Block Sawda, JJ Colony. He also SC No. 36/14 State vs Rajan (Page 6 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC proved the registration of FIR vide ExPW4/B and his endorsement on the rukka as ExPW4/C.
12. PW5 HC Kanchi Lal is the witness who on 1.5.2011 was posted with PCR and was on duty on PCR Van Libra 55 . On that day at about 8:30 pm, on receipt of information regarding the quarrel and that a boy was injured in K Block Sawda JJ Colony , he reached at the spot where he found three persons namely Sajjad(PW2), Saddam(PW1) and Smt Shamimum(PW3) in injured condition. He took all the three injured to Sanjay Gandhi Memorial Hospital and got them admitted there .
13. PW6 Ct. Rajpal is the witness who was alongwith IO ASI Balbir Singh (PW9) during investigation.
14. PW7 Dr. M. Dass examined the injured persons namely Sajjat (PW2) , Saddam(Pw1) and Shamimum (PW3) vide MLC ExPW7/A, ExPW7/B and ExPW7/C .
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15. PW8 Dr. Manoj Dhingra opined the nature of injury sustained by injured Saddam(PW1) and Shamimum(PW3) as simple as per MLC ExPW7/B and ExPW7/C . He also proved the opinion given by Dr. Shalini Girdhar on MLC ExPW7/A of injured Sajjat as grievous.
16. PW9 ASI Balbir Singh is the IO of the case.
He deposed that on 1.5.2011 on receipt of DD no.35 A ExPW4/A, he alongwith ct. Rajpal reached at K Block, JJ Colony, Sawda where he came to know that three injured persons have been removed to SGM Hospital by PCR. He reached at the hospital and found injured Sajjat(PW2), Saddam(PW1) and Shamimum(PW3) admitted there. He obtained their MLC's and recorded statement of Saddam Hussain ExPW1/A and made endorsment ExPW9/A on that and sent Ct. Rajpal (PW6) to PS for registration of FIR. Thereafter he reached at the spot along with Saddam (PW1) and prepared site plan ExPW9/B at his instance.
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17. PW9 ASI Balbir further deposed that on 3.5.2011, he alongwith Saddam(PW1) and Ct. Rajan reached near Railway Phatak at Ghewra Village where accused was seen coming from Ghewra Village and on the pointing out of Saddam Husain(PW1) accused Rajan was arrested vide memo ExPW6/A and his personal search was conducted vide memo ExPW6/B. Disclosure statement of accused Rajan ExPW6/C was recorded wherein he disclosed that he had thrown the danda used in crime in the fields near FCI Godown . Efforts were made to recover the danda but it could not be found and non recovery memo in that regard ExPW6/D was prepared . He further deposed that on the pointing out of accused Rajan pointing out memo of place of occurrence ExPW6/E was prepared. collected the three MLC's of injured persons ExPW7/A to ExPW7/C. After completion of investigation chargesheet was filed. PW9 was cross examined by the accused.
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18. Thereafter, statement of accused u/s 313 CrPC was recorded. During the statement u/s 313 CrPC, accused has not denied that on the date of incident he visited the Sajjat and there a quarrel took place. He further admitted that Sajjat sustained injuries due to said quarrel but denied that he used any danda. He did not opt to lead any evidence in his defence.
19. I have heard the ld Chief Prosecutor for the state and the ld legal aid counsel for the accused. I have also perused the record very carefully.
20. Accused is facing trial for the offence u/s 323/308 IPC . Public witness PW1 Saddam, PW2 Sajjat and PW3 Shamimum are the injured in the present case. First of all take the testimony of PW2 Sajjat. He deposed that on 1.5.2011, he alongwith Saddam were sitting outside their shop at K Block on Mangal Bazar road and his mother was running an ice shop at the corner of the gali in which their shop is SC No. 36/14 State vs Rajan (Page 10 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC situated. Accused Rajan alongwith 2-3 associates came there all of a sudden and at that time he was having a round danda with him and he hit him with that danda on his head as well as on the whole body. Accused Rajan also hit Saddam on his head with that danda due to which he received injuries above his left ear. In the meanwhile his mother also reached there and tried to save them but accused Rajan hit his mother also with that danda. Thereafter, accused ran away from the spot.
21. PW2 Sajjat further deposed that about 3-4 days prior to the incident accused Rajan under intoxication of liquor was quarreling with one old man for which he had objected. Accused Rajan get annoyed and due to this reason he hit him and Saddam in order to kill them.
22. PW2 was cross examined by the ld counsel for the accused but even during his cross examination, he replied that incident is dated 1.5.2011. Accused Rajan was not known to him.
SC No. 36/14 State vs Rajan (Page 11 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC Incident took place in front of his house. He further replied that there was a quarrel between accused Rajan and Akhtar . The quarrel was two-three days prior to the incident. PW2 replied that accused Rajan had come on the date of incident at about 8:30 pm at the shop and hit him. He denied the suggestion that no such incident took place.
23. PW2 is referring the presence of Saddam .
Said Saddam appeared in the witness box as PW1 who has corroborated and supported the version of PW2 . He deposed that on 1.5.2011 at about 8:30 pm, he alongwith Sajjat(PW2) were sitting outside the shop /khokha of Sajjat(PW2) which is situated on Mangal Bazar road in K Block, accused Rajan alongwith some other person came there and hit him on his head as well as on the head of Sajjat with a round danda all of a sudden. He sustain injury above his left ear and Sajjat received injuries on whole body as well as head. Mother of the Sajjat also reached there in order to save both of them but accused Rajan hit mother of Sajjat also and thereafter ran SC No. 36/14 State vs Rajan (Page 12 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC away from the spot. PCR Van reached there and took all of them to the hospital. Police recorded his statement ExPW1/A.
24. PW1 was not supporting the case of the prosecution completely therefore, he was declared hostile and was cross examined by the ld Addl PP for state. PW1 was also cross examined by the ld counsel for the accused but even during his cross examination he replied that he had seen the accused Rajan first time on the date of occurrence. He was taken to the hospital by PCR Van. He denied the suggestion that Rajan has not caused any injury to him or to Sajjat(PW2). He further denied the suggestion that no such incident took place.
25. During his cross examination by ld Addl PP for state, PW1 Saddam admitted that accused Rajan had hit Sajjat (PW2) on his head and various other parts of the body in order to kill him.
26. It is settled law that merely because a SC No. 36/14 State vs Rajan (Page 13 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC witness is declared as hostile, there is no need to reject his evidence in toto. The evidence of the hostile witness can be relied upon, at least to the extent, it supports the case of prosecution.
27. In Sathyanarayanan vs State , Inspector of Police, (2012) 12 SCC 627, it was held as under " It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution".
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28. Aforesaid testimonies of PW1 and PW2 further finds corroboration from the testimony of PW3 Shamimum who is the mother of Sajjat (PW2). PW2 Sajjat and PW1 Saddam have deposed that Shamimum(PW3) came at the spot and tried to save them. PW3 has also corroborated and supported the case of the prosecution while stating that on 1.5.2011, she was running an ice shop near her house. On that day at about 8:30 pm, her son Sajjat(PW2) alongwith his friend Saddam(PW1) were sitting outside their house and there is a shop outside their house . All of a sudden accused Rajan alongwith his 2/3 associates came armed with danda and hit her son Sajjat on his head and various parts of the body and they also hit Saddam(PW1). She went there and tried to save both of them but accused hit her also on her right hand and face. Accused alongwith his associates ran away from the spot. Her son Sajjat became unconscious . Polcie reached at the spot and they took them to the Sanjay Gandhi Memorial Hospital.
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29. PW1 Saddam, PW2 Sajjat and PW3 Shamimum , all these witnesses are the injured and they have supported and corroborated the version given by each other. There is no material contradiction . The testimonies of these witnesses are consistent, probable and inspire confidence of this court. There is nothing on record to disbelieve the same.
30. I see no reason to disbelieve PW1, PW2 and PW3. They having been the victim of violence, there could be no reason for them to exonerate the real culprits and implicate innocent person for the injury caused to them. In Mer dhana Sida vs State of Gujrat : AIR 1985 SC 386 ., three injured witnesses have supported the case of the prosecution. It was held by Hon'ble Supreme Court that as there were three injured witnesses, and we would require very convincing submission to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference SC No. 36/14 State vs Rajan (Page 16 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC that they were present at the time of occurrence. It was further held that very cogent and convincing ground would be required to discard the evidence of the injured.
31. Further, I may also observe that testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would establish his presence at the spot and confirm that he had seen the occurrence by himself ( Mohar vs State of UP,2002 AIR (SC) 3279).
32. Evidence of the injured eye witness cannot be discarded in toto on the ground of criminal disposition towards accused. More so, on perusal of the evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused. Further in the case of State of Madhya Pradesh vs Mansing & Ors reported in 2003(10) SCC 414, Hon'ble Supreme SC No. 36/14 State vs Rajan (Page 17 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC Court of India held that evidence of injured witness has greater evidential value, unless compelling reasons exist to disbelieve the same.
33. PW1 Saddam, PW2 Sajjat and PW3 Shamimum are talking about that they were taken to the hospital by PCR. PW5 HC Kanchi Lal is the witness who on 1.5.2011 was posted with PCR and was on duty on PCR Van Libra 55 . He deposed that on that day at about 8:30 pm, on receipt of information regarding the quarrel and that a boy was injured in K Block Sawda JJ Colony , he reached at the spot where he found three persons namely Sajjad(PW2), Saddam(PW1) and Smt Shamimum(PW3) in injured condition. He took all the three injured to Sanjay Gandhi Memorial Hospital and got them admitted there . The testimonies of aforesaid witnesses also find corroboration from the testimonies of PW6 Ct Rajpal and PW9 ASI Balbir Singh who stated that on 1.5.2011 on receipt of DD no. 35 A ExPW4/A, when they reached at the spot they came to know that injured persons have already been removed to the SC No. 36/14 State vs Rajan (Page 18 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC SGM Hospital by PCR.
34. All the three injured persons were examined at SGM hospital by Dr. M.Dass (PW7). Dr. M. Dass deposed that on 1.5.2011 , he was posted at Sanjay Gandhi Memorial Hospital , Mangol Puri as Chief Medical Officer . At around 09:40 pm , one Sajjat was brought by HC Kanchi Lal following alleged history of assault. He examined the patient and prepared MLC no.6687 dated 1.5.2011 Exhibit PW7/A and noted following injuries :
1. Lacerated wounds 4 cm wide right side of the parital region .
2. Lacerated wound right dorsum of thumb with swelling.
3. Pain and swelling mild in left lateral mallious .
After X Ray, patient Sajjat was referred to SR (Ortho) and SR (surgery).
35. PW7 further deposed that on the same day at around 9:50 pm, another person namely Saddam was also brought by HC Kanchi Lal following alleged history of assault , who was SC No. 36/14 State vs Rajan (Page 19 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC examined vide MLC no.6688 dated 1.5.2011 Exhibit PW7/B Local abrasion in the post auricular region 2 cm long injury was noted. On the same day at around 9:55 pm, another person namely Shamimum was also brought by HC Kanchi Lal following alleged history of assault. She was examined and MLC was prepared vide MLC no.6689 dated 1.5.2011 Exhibit PW7/C and no external injury was noted .
36. PW8 Dr. Manoj Dhingra deposed that after going through MLC ExPW7/B and ExPW7/C he opined the nature of injury as simple in both the MLC's. He further deposed that Dr. Shalini Girdhar was also working with him , who had given her opinion on the MLC ExPW7/A , as grievous. MLC ExPW7/A pertaining to the injured Sajjat (PW2) indicates that there was a fracture of parietal bone .
37. PW7 and PW8 have not been cross examined by the accused despite opportunity. Medical evidence has not been disputed by the accused.
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38. It was held by Hon'ble Supreme Court in Ved Kumar and Anrs vs State & Anrs ; 96 (2002) DLT 820 , that in order to constitute offence u/s 308 IPC , it must be proved (i) that the accused committed an act , (ii) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and (iii) that the offence was committed under such circumstances if the accused by that act had caused death , he could have been guilty of culpable homicide.
It was further ruled that intention is a question of fact which is gathered from the Acts committed by the accused and knowledge means awareness of the consequences of the Act.
39. During the argument ld counsel for the accused submitted that there was a dispute between accused and one Akhtar. Akhtar is a friend of Sajjat (PW2) and due to that reason accused has been falsely implicated. I do not find any force in the argument of the ld counsel for the accused. As discussed herein above , the testimony of injured PW1 Saddam , PW2 Sajjat and PW3 Shamimum is convincing and free from all doubt. There is nothing SC No. 36/14 State vs Rajan (Page 21 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC on record to disbelieve the same.
40. In the present case it has come on record that accused has committed the Act in question . Medical evidence coupled with the testimonies of injured indicate that Sajjat (PW2) sustained injuries on his head and the nature of injury was grievous one . The knowledge and the intention of the accused for causing said injury can very well be inferred from the circumstances.
41. Moreover, the accused himself has not disputed certain incriminating circumstances brought by the prosecution. During his statement recorded u/s 313 CrPC, he replied that at that time, he was also running a shop of video game which was only at a distance of 5 minutes away from the shop of mother of Sajjat . 3-4 days prior to this incident , he was beaten up by one Akhtar and Sajjat. On that day, he had gone there only to enquire Sajjat as to why they have beaten him up. On that day there was a quarrel between him and Sajjat. Sajjat SC No. 36/14 State vs Rajan (Page 22 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC received injury due to the quarrel but it was due to scuffling . The only defence of the accused was that he did not use any danda and did not cause any injury on the persons of PW1 Saddam, PW2 Sajjat and PW3 Shamimum with the danda.
42. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
43. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused in respect of SC No. 36/14 State vs Rajan (Page 23 of 24 ) D.O.D 14.08.2014 FIR no. 101/2011 P.S Kanjhawalan u/s 323/308 IPC offence u/s 308/323 IPC. Consequently, accused Rajan stands convicted for the offence us 308/323 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 14.8.2014 ASJ-5, North Rohini Court SC No. 36/14 State vs Rajan (Page 24 of 24 )