Delhi District Court
State vs (1)Sonu @ Arjun on 31 March, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.1/2009
Unique Case ID No.02402R0740492008
FIR No.390/2008
Police Station Anand Vihar
Under Section 307/34 IPC
State Versus (1)Sonu @ Arjun
S/o Om Prakash
R/o Sumbhari Ki Jhuggi,
D Block, NSA Colony, Delhi.
(2) Naveen S/o Raj Kumar
R/o H. No. A446, Gali No.11,
NSA colony, Delhi.
Date of Institution : 06.01.2009
Date of judgment reserved : 26.03.2011
Date of judgment : 30.03.2011
JUDGMENT
Two accused persons, namely, Sonu @ Arjun and Naveen have been sent to face trial by the police of Police Station SC No.1/2009 State vs Sonu @ Arjun etc. Page 1 of 30 Anand Vihar in FIR No. 390/08 under section 307/34 IPC. 2 Facts in brief are that on 30.7.2008 on receipt of DD No.15A Ex.PW7/A, ASI Chander Pal Singh (PW10) along with Ct. Mahender Singh (PW3) reached Dr. Hedgewar Hospital from where MLC of injured Joginder (PW2) was obtained. On the MLC of Joginder (PW2) Doctor mentioned that patient was unable to speak clearly due to injury on his cheek. In the hospital, Investigating Officer (PW10) met with the eye witness Ravinder (PW1) who made statement Ex.PW1/A to the Investigating Officer. 3 In his statement Ex.PW1/1, Ravinder (PW1) (hereinafter shall be referred to as the complainant) stated that on 30.7.2008, his brother Joginder Singh (PW2) had brought Kanwar and after taking cigarette from near Hans Apartment, they both were going towards their house. Near the chowk, two boys, namely, Sonu @ Arjun and Naveen, residents of the locality, were strolling. Shoulder of his brother Joginder Singh touched with shoulder of Sonu @ Arjun. At that time, it was 3.00 p.m. Rubbing of shoulder infuriated Sonu @ Arjun who asked his associate Naveen to catch hold of Joginder Singh (PW2) and to teach him a lesson. Accused Naveen caught hold of Joginder Singh (PW2) whereas accused Sonu SC No.1/2009 State vs Sonu @ Arjun etc. Page 2 of 30 @ Arjun gave repeated cutter blows on his person. The complainant (PW1) raised alarm and threw a piece of brick towards accused Sonu in order to save his brother. Due to gathering of people at the spot, both the accused tried to escape after leaving his brother in injured condition. During escape, accused Sonu fell down on the road. He was also caught by the people and given beatings, but both of them ultimately managed to escape. Complainant (PW1) removed his brother to Dr. Hedgewar Hospital in a rickshaw and got him admitted there. After sometime, police brought accused Sonu @ Arjun in the hospital.
4 On the basis of statement Ex.PW1/A, ASI Chander Pal Singh (PW10) prepared rukka Ex.PW10/A and sent Ct. Mahender (PW3) to the Police Station for registration of the FIR. In the Police Station, Duty Officer HC Mahavir (PW4) recorded FIR Ex.PW3/B. The Duty Officer made his endorsement Ex.PW3/A on the rukka Ex.PW10/A regarding registration of the FIR. After registration of the FIR, investigation of the case was taken over by ASI Chander Pal Singh (PW10). In the hospital, injured Joginder (PW2) was medically examined by Dr. Sachin Harit (PW9) vide MLC Ex.PW9/A. Investigating Officer took into possession one blood stained shirt, one SC No.1/2009 State vs Sonu @ Arjun etc. Page 3 of 30 Gamcha and one blood stained trousers Ex.P2 (collectively) of Joginder (PW2) vide seizure memo Ex.PW3/A after converting it into a sealed pulanda. Investigating Officer prepared site plan Ex.PW10/B at the instance of complainant. Accused Sou @ Arjun was arrested vide arrest memo Ex.PW1/B and his personal search Ex.PW1/C was conducted. Accused Naveen was arrested vide arrest memo Ex.PW1/F and his personal search Ex.PW1/G was carried out. Disclosure statement Ex.PW1/H of accused Sonu @ Arjun was recorded. Accused Sonu got recovered cutter Ex.P1 used by him in the commission of crime from near the spot which was seized vide seizure memo Ex.PW1/E after preparing its sketch Ex.PW1/D. On 27.8.2008, blood sample Ex.P3 of injured Joginder (PW2) was taken which was taken into possession vide seizure memo Ex.PW2/A. The case property was deposited in malkhana with MHC(M) HC Akhilesh Kumar (PW6) who made relevant entries Ex.PW6/A and Ex.PW6/A1 in this regard. Opinion of Doctor was obtained on the MLC Ex.PW9/A who opined the same as simple. On 24.9.2008, HC Pradeep (PW8) collected exhibits of the present case from MHC(M) and deposited the same in FSL vide RC No.146/21. After receipt of report of FSL Ex.PW10/C, same was filed by the Investigating SC No.1/2009 State vs Sonu @ Arjun etc. Page 4 of 30 Officer in the court.
5 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
6 After hearing Ld. Counsel for the parties and Addl. PP for the State, my Ld. Predecessor framed charge under section 307/34 IPC against accused persons on 22.1.2009 which reads as under : "That on 30.7.08 at about 3.00 pm, at Hans Apartment Chowk, near Sulabh Shochalya, NSA Colony, Delhi, within jurisdiction of Police Station Anand Vihar, you both in furtherance of your common intention, inflicted injuries on the person of Joginder Singh S/o Kishan Lal by a cutter, with such intention or knowledge and under such circumstances that if you both by your said act, had caused the death of above said Joginder Singh, you both would have been guilty of committing his murder and thereby committed an offence punishable U/s 307/34 IPC and within my cognizance."
7 Both the accused pleaded not guilty to the charge framed against them and claimed a trial.
SC No.1/2009 State vs Sonu @ Arjun etc. Page 5 of 30 8 In order to prove its case, prosecution has examined 11 witnesses. PW1 Ravinder is the complainant. PW2 Jogender is injured. PW3 Ct. Mahender singh joined the investigation carried out by ASI Chander Pal Singh (PW10). PW4 HC Mahavir recorded the FIR in this case. PW6 HC Akhilesh was working as MHCM at the relevant time who recorded entries in register No. 19 regarding deposit of case property/ exhibits by the Investigating Officer and sending of exhibits to FSL. PW7 Ct. Manoj proved DD No 15A as Ex.PW7/A. PW8 HC Pradeep deposited the exhibits of the case in FSL. PW9 Dr. Sachin Harit medically examined injured Jogender (PW2). PW11 Dr. Akshay Bahadur has proved notes on the MLC Ex.PW9/A as to be in the hand of Dr. Vijay Singh who had left the hospital.
9 After completion of prosecution evidence, statements of both the accused under section 313 Cr.P.C. were recorded in which they have denied the case of the prosecution in toto and have stated that they have been falsely implicated in the present case. Accused persons opted not to lead any evidence in their defence. 10 I have heard. Ld. Addl PP for the State and Sh. R.K. Sharma, Ld. Counsel for accused persons. I have meticulously gone SC No.1/2009 State vs Sonu @ Arjun etc. Page 6 of 30 through their submissions and material available on record. 11 To establish its case, the prosecution has proved the circumstances of incident allegedly happened, identity of accused persons, their presence at the spot at the time of incident, testimony of injured/ eye witnesses is reliable, apart from other parts injury was also caused vital organs of injured Joginder, intention and knowledge of accused persons in commission of crime, recovery of weapon of offence i.e. cutter and FSL report.
Incident 12 Case of the prosecution is that on the day of incident, both the accused persons in furtherance of their common intention caught hold of Jogender (PW2) and gave cutter blows on his vital parts of body.
13 To prove its case, prosecution has examined the injured Jogender (PW2). He deposed that on 30.07.2008 after taking Kanwar, he came back to Delhi. He left the Kanwar in temple and had gone to chowk near Hans Apartment to take cigarette. At that time, his brother Ravinder was also with him. At about 2.30/3.00 p.m., he saw both the accused persons Sonu and Naveen were wandering near the chowk. Suddenly, his shoulder touched with the SC No.1/2009 State vs Sonu @ Arjun etc. Page 7 of 30 shoulder of accused Sonu due to which he became angry and said "
Bahut Choda Ho Kar Chal Raha Hai" and asked his coaccused Naveen to catch hold of him while saying " Aaj Iske Dadagiri Nikalni Hai". Witness further deposed that accused Naveen caught hold of him whereas accused Sonu took out a cutter from his pocket and started giving blows on his body. As a result of which, he sustained injuries on right hand forearm, chest, left shoulder, back, cheek and left eye. His brother took him to Dr. Hedgewar Hospital where he regained consciousness. He further deposed that he remained admitted in the hospital for three days and thereafter his statement was recorded by the police. He deposed that his clothes got stained with blood which were taken into possession. He further stated that his blood sample was seized vide seizure memo Ex.PW2/A. The injured was show the cutter Ex.P1, blood stained clothes Ex.P2 and blood sample Ex.P3 which he identified to be the same with which injuries were caused on his person and clothes to be his which he was wearing at the time of incident. This injured witness identified both the accused persons in the Court.
14 Witness Joginder (PW2) was crossexamined.
During the course of crossexamination, he stated that he was wearing SC No.1/2009 State vs Sonu @ Arjun etc. Page 8 of 30 orange coloured pajama and half sleeves shirt bearing Om. His all clothes got blood stains. He further stated that he knew the accused persons prior to incident. He further stated that on earlier occasions, accused Sonu quarelled with him but there was no enmity between them. His statement was recorded by the police on the third day of occurrence. Blood fell at the spot. He categorically stated that accused persons inflicted injuries on his shoulder as his shoulder touched with accused Sonu. He denied the suggestion that the accused persons had not inflicted any injury on him or that he was deposing falsely due to previous quarrel with accused Sonu. He further stated that the weapon was about 45 inches long. He further stated that he himself saw the accused persons at the time of inflicting injuries on his person.
15 Statement made by the victim Jogender (PW2) has duly been corroborated by the complainant (PW1) who is his brother. Complainant (PW1) has deposed that on 30.7.2008, he along with his brother Joginder was present at chowk near Hans Apartment and were taken cigarette. Near the chowk, accused Sonu and Navin were present as they were wandering there. Shoulder of his brother Joginder touched with the shoulder of accused Sonu at about 2.30/3 SC No.1/2009 State vs Sonu @ Arjun etc. Page 9 of 30 PM. After touch of shoulder, accused Sonu became angry and asked accused Naveen "Pakad Sale Ko, Isse Kaie bar meri Jhadap ho chuki hai, Aaj Isko Khatam Kar Dete Hain". Complainant further deposed that accused Naveen caught hold hands of his brother and accused Sonu took out a cutter who made blows on his brother Joginder. Complainant immediately raised alarm and in the meanwhile some public persons collected there. During running away from the spot, accused Sonu fell down and public persons gave beatings to him as well. The complainant (PW1) removed his injured brother to hospital who received injuries on his cheek, waist etc. Complainant further deposed that his statement Ex.PW1/A was recorded by the police. Accused Sonu was arrested in hospital vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. He further deposed that blood stained clothes of his brother were taken into police possession. Sketch Ex.PW1/D of the cutter has been identified by the complainant (PW1) which was seized vide seizure memo Ex.PW1/E. Accused Naveen was arrested vide arrest memo Ex.PW1/F and his personal search was conducted vide memo Ex.PW1/G. He also stated that disclosure statement Ex.PW1/H of accused Sonu was recorded. Complainant (PW1) was also shown the SC No.1/2009 State vs Sonu @ Arjun etc. Page 10 of 30 cutter Ex.P1 and blood stained clothes Ex.P2 of his brother Jogender. Complainant (PW1) identified the cutter as well as blood stained clothes of his brother which were seized in his presence. 16 During the course of crossexamination, complainant (PW1) stated that accused persons were known to him prior to incident as they were residing at some distance from his house. At the time of incident he and his brother were together. Accused persons were near the chowk and were standing on the other side. He denied that due to previous quarrel and enmity, names of accused persons were told to the police and got them involved in the false case. He categorically stated that accused Sonu took out cutter from his pocket. Complainant (PW1) denied that he was not present with his brother at the time of incident.
17 Statement of injured Jogender Singh (PW2) establishes that on the day of incident, he received injuries at the hands of both the accused persons. Testimony of injured Jogender (PW2) has duly been corroborated by his brother i.e. complainant (PW1). Complainant (PW1) has also stated that on the day of incident, both the accused Sonu and Naveen were present at the spot and on rubbing of shoulder, accused Sonu took out a cutter Ex.P1 and SC No.1/2009 State vs Sonu @ Arjun etc. Page 11 of 30 gave its repeated blows on the person of his brother Jogender (PW2). Both these witnesses i.e. injured Jogender (PW2) as well as eye witness/complainant (PW1) were crossexamined at length by the learned defence counsel. But the defence has failed to put any dent on the testimony of injured Jogender (PW2) as well as complainant (PW1). Their testimony remained unshaken and trustworthy. Both the complainant (PW1) as well as victim Jogender (PW2) remain stuck to their version that on the day of incident both the accused persons caught hold of Jogender (PW2) whereas accused Sonu gave cutter blows on his person.
Identity of accused persons 18 The identity of the accused persons is not in dispute inasmuch as the victim Joginder (PW2) and complainant (PW1) have stated that both the accused Sonu and Naveen were known to them prior to incident as they are also the residents of same locality in which they were residing. Even otherwise, it is case of accused persons themselves that they have been falsely implicated in the present due to previous enmity of accused Sonu with injured Joginder (PW2). This fact also goes to prove that accused persons were known SC No.1/2009 State vs Sonu @ Arjun etc. Page 12 of 30 to the injured and complainant prior to date of incident. So, there is no dispute with regard to identity of both the accused persons. Presence of accused persons at the spot 19 The other aspect of the matter is that the presence of accused persons at the spot has duly been established. Both the public witnesses i.e. victim Joginder (PW2) and complainant (PW1) have stated that both the accused Sonu and Naveen were wandering near Hans Apartment chowk on the day of incident when shoulder of Joginder (PW2) touched with the shoulder of accused Sonu. They have also stated that after uttering some words, accused Naveen caught hold of Joginder (PW2) whereas accused Sonu gave repeated cutter Ex.P1 blows on the person Joginder (PW2). In their examinationsinchief, both these witnesses stuck to their stand. No dent to their testimony has been put by the defence during their cross examination. During crossexamination also, they stated that both the accused persons were present at the spot at the time of incident and cutter blows were given on the person of Joginder (PW2). Thus, it has been established that accused persons were present at the spot at the time of incident and there presence at the spot has well been established.
SC No.1/2009 State vs Sonu @ Arjun etc. Page 13 of 30 Testimony of injured witness 20 It has been argued by Ld. Addl .PP for the State that the testimony of injured Joginder (PW2) is sufficient to hold the accused persons guilty. Even his testimony has duly been corroborated by another eye witness i.e. complainant (PW1). 21 On the other hand, it has been argued by Ld. Defence Counsel that the statements of the complainant as well as of injured Joginder can not be made the basis to convict the accused as they were inimical towards accused persons.
22 I am not impressed with aforesaid contention of ld. Defence counsel in view of judgment of Hon'ble Supreme Court in case of State of Maharashtra vs. Tulshiram Bhanudas Kamble and others AIR 2007 SC 3042 in which it was observed that witnesses examined on behalf of the prosecution, apart from being eye witnesses, were injured witnesses. Their presence at the place of occurrence can not be doubted. Only because they were inimical to the respondents, the same by itself can not be a ground to discard their evidence. It was further observed that ground for rejecting the evidence of eye witnesses, namely, that they falsely implicated the accused, was found hardly to be a good ground for rejecting their SC No.1/2009 State vs Sonu @ Arjun etc. Page 14 of 30 evidence. It was held that in India, the falsus in uno falsus in omnibus (false in one, false in all) does not apply. The Court can partly reject and partly accept the evidence of a witness and it is not correct to say that merely because some part of the evidence is found to be false, the entire evidence has to be rejected. It was further held that it is not necessary to invariably accept the version of injured witnesses but it is well settled that greater weight has to be given to the testimony of injured witnesses.
23 It has categorically been stated by injured Joginder (PW2) that on the day of incident when his shoulder touched with shoulder of accused Sonu, he was caught hold by accused Naveen at the instigation of accused Sonu. Thereafter, accused Sonu took out a cutter from his pocket and gave its repeated blows on his person. Testimony of injured witness has duly been corroborated by another eye witness i.e. complainant (PW1) who stated almost on similar lines as stated by his brother, injured Joginder (PW2). 24 I have already observed in former part of judgment that identity of accused persons and their presence at the spot at the time of incident has duly been established on record. Presence of injured witness (PW2) as well as of eye witness (PW1) at the spot is SC No.1/2009 State vs Sonu @ Arjun etc. Page 15 of 30 also not in doubt. On the ground of enmity alone, testimony of eye witnesses can not be discarded in view of aforesaid judgment. Therefore, in my considered opinion, testimony of injured witness Joginder (PW2) and eye witness i.e. complainant (PW1) are trustworthy and reliable which unerringly points out towards guilt of accused persons and their testimony is sufficient to hold them guilty. Injury on the vital organ of body 25 Testimony of injured Joginder (PW2) and complainant (PW1) have also been corroborated by medical evidence. Injured Joginder (PW2) was medically examined by Dr. Sachin Harit (PW9) in Dr. Hedgewar Hospital. He stated that on 30.7.2008 at about 3.15 PM, Joginder was brought in the hospital by his brother Ravinder (PW1). On medical examination, doctor found several injuries on the person of Joginder viz. Incised wound over left cheek size 1 x 10 cm, incised wound over left eyebrow size 3 x 1 cm, incised wound over left shoulder size 4 x 1 cm, incised wound over left upper chest size 4 x 0.5 cm, incised wound over lumbar region size 7 x 1 cm, incised sound over left lateral back vertically size 10 x 0.5 cm and incised wound over right forearm of size 4 x 0.5 cm. Thereafter, injured was referred to surgery department. Dr. Vijay Singh gave SC No.1/2009 State vs Sonu @ Arjun etc. Page 16 of 30 opinion with regard to nature of injuries sustained by injured Joginder (PW2) as simple.
26 The MLC Ex.PW9/A of injured Joginder (PW2) establishes that on the day of incident he received injuries. It has specifically been stated by both the eye witnesses (PW1 & PW2) that both the accused Sonu and Naveen in furtherance of their common intention gave cutter blows on the person of Joginder (PW1). In this way, this court is of the considered view that the prosecution has brought sufficient material on record to establish that the injuries sustained by Joginder (PW2) on the day of incident were caused to him by both the accused persons. Even the MLC Ex.PW9/A of Joginder (PW2) establishes that he received injury over his chest which is a vital region of human body.
Intention and knowledge 27 As per sketch Ex.PW1/D of the cutter Ex.P1, the length of blade of the cutter is 8 cm. Cutter Ex.P1 undisputably is of sharp edged. The length of cutter was such that it can easily gave grievous blow on body. The circumstances brought on the record establishes that accused Sonu was carrying cutter on the day of incident. Carrying of cutter by accused shows his intention of causing SC No.1/2009 State vs Sonu @ Arjun etc. Page 17 of 30 injury to human being. It has been established on record that several cutter blows were given on the person of Joginder (PW2). Had it been just a moment of passion or quarrel, it was not expected from a prudent man to give repeated blows. Giving of repeated blows on different parts of body of injured Joginder (PW2) shows knowledge of accused persons of committing his death. It has also been brought on record that accused Naveen caught hold of injured Joginder (PW2) at the time of incident. It also proves that both the accused persons were having intention to kill Joginder on the day of incident. 28 In case Vasant Vithu Jadhav Vs. State of Maharashtra (Reported in AIR 2004 SC 2678), the victim had sustained simple injuries at the hands of accused, but he was held guilty under Section 307 IPC inasmuch as he had intention and knowledge to cause death of victim. Para 8 of the judgment is reproduced as under : "To justify a conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistant in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may SC No.1/2009 State vs Sonu @ Arjun etc. Page 18 of 30 even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient in ordinary circumstances to cause the death of the person assaulted. What the court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
29 In the present case, it has been established that accused Sonu was carrying cutter at the time of incident of which he gave repeated blows on the person of injured Joginder (PW2). It has been stated by injured Joginder (PW2) as well as complainant (PW1) that at the time of incident accused Naveen caught hold of Joginder (PW2) whereas accused Sonu @ Arjun gave cutter blows on the person of Joginder (PW2). Carrying of weapon of offence i.e. cutter SC No.1/2009 State vs Sonu @ Arjun etc. Page 19 of 30 by accused Sonu @ Arjun and the acts committed by both the accused at the time of incident establishes the fact that accused persons carried the weapon of offence with a view to cause death of injured Joginder (PW2). Medical evidence in the form of MLC Ex.PW9/A of Joginder (PW2) also corroborates the case of prosecution that repeated cutter blows measuring 10 x 1 cm on cheek, 3 x 1 cm over eyebrow, 4 x 1 cm on shoulder, 4 x 0.5 cm on upper chest, 7 x 1 cm on lumbar region, 10 x 0.5 cm on lateral back vertically and 4 x 0.5 cm over right forearm of injured Joginder (PW2) were inflicted, which also establishes that both the accused persons were having knowledge and intention to cause the death of Joginder (PW2). It is also matter of record that at the time of incident, victim (PW2) of the crime as well as his brother i.e. complainant (PW1) were unarmed. Victim was attacked by both the accused persons with common intention to cause his death. As per MLC Ex.PW9/A of Joginder (PW2), apart from other body parts, he also sustained injury on his vital organ i.e. chest. 30 In view of this position of matter, I am of the considered opinion that both the accused persons were having sufficient knowledge and intention to commit the death of Jogender (PW2) on the day of incident.
SC No.1/2009 State vs Sonu @ Arjun etc. Page 20 of 30 Recovery of weapon of offence 31 It has been argued by the Ld. Defence counsel that the cutter was seized after recording disclosure statement of accused Sonu which is not admissible in evidence. It has further been argued that cutter has been planted upon the accused and its recovery has not been established by the prosecution beyond reasonable doubt. 32 The complainant (PW1) has categorically stated that cutter Ex.P1 used in the commission of crime by accused persons was seized by the Investigating Officer in his presence vide seizure memo Ex.PW1/E. He also stated that it sketch Ex.PW1/D was also prepared. It is matter of record that disclosure statement Ex.PW1/H of accused Sonu was recorded by the Investigating Officer. In furtherance of his disclosure statement, accused Sonu got recovered weapon of offence i.e. cutter Ex.P1 from near the spot. The recovery of cutter was affected on the disclosure statement of accused Sonu. It is correct that the disclosure statement made by an accused under the police custody is not admissible in evidence. But any recovery of any article effected by an accused in furtherance of his disclosure is clearly admissible in evidence as per provision of Section 27 of Indian Evidence Act. In SC No.1/2009 State vs Sonu @ Arjun etc. Page 21 of 30 similar situation, the Hon'ble Apex Court in case titled Nisar Khan @ Guddu and Others Versus State of Uttaranchal (Reported in 2006 (9) SCC 386) has held that that the entire statement made by the accused before the police is inadmissible in evidence being hit by Sections 25 and 26 of the Evidence Act but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act.
33 In view of above scenario, I am of the considered opinion that the prosecution has proved beyond reasonable doubt the recovery of weapon of offence i.e. cutter Ex.P1 at the instance of accused Sonu which was used in the commission of crime. FSL report 34 Ct. Mahender Singh (PW3) remained associated with the investigation of the present case conducted by Investigating Officer ASI Chander Pal Singh (PW10). HC Mahavir (PW4) was the duty officer at the relevant time in the police station and he recorded the FIR Ex.PW3/B. After collecting the case property, it was deposited in malkhana by the Investigating Officer. MHC(M) HC Akhilesh Kumar (PW6) has stated that he made relevant entries in the SC No.1/2009 State vs Sonu @ Arjun etc. Page 22 of 30 register which are Ex.PW6/A and Ex.PW6/A1 with regard to deposit of exhibits of the present case in malkhana. It is also matter of record that the exhibits were deposited in FSL by HC Pradeep (PW8). 35 As per FSL report Ex.PW10/C, blood was detected on the clothes of injured Jogender (PW2) as well as on the cutter Ex.P1. It has been argued by the Ld. Defence counsel that the blood group of the blood detected on cutter has not been mentioned in FSL report. I am not agreeable with the contention of Ld. Defence counsel. It is correct that in FSL report Ex.PW10/C, it is not mentioned that blood of which group was found on the cutter Ex.P1, but this fact cannot be ignored that human blood was detected on cutter Ex.P1. I have already observed in the earlier part of judgment that use of cutter in the incident and its recovery is not in doubt. Thus, the prosecution has successfully established that it was the same cutter which was used by accused persons in commission of crime, whereas the accused persons have failed to give any explanation as to how human blood came on the cutter.
36 Consequently, it is held that the FSL report also corroborates the case of prosecution that the cutter was used by SC No.1/2009 State vs Sonu @ Arjun etc. Page 23 of 30 accused persons in commission of crime and cutter blows were given on the person of Jogender (PW2) on the day of incident. FSL report also establishes the fact that clothes Ex.P2 of injured Jogender were stained with his blood after sustaining injuries by him at the hands of accused persons.
Defence argument 37 It has been argued by Ld. Defence counsel that there is serious doubt about the prosecution case as the complainant (PW1) had not informed the names of assailants to the Doctor who attended injured Joginder (PW2). I am not agreeable with the contention of the Ld. Defence counsel. From the testimony of complainant (PW1) it is apparent that during the course of his crossexamination, he stated that he did not tell the doctor at the time of recording the MLC that who caused injury to his brother as doctor did not ask him the name of accused. Injured Joginder (PW2) during crossexamination has stated that he had named accused persons before the doctor who had medically examined him.
38 According to MLC Ex.PW9/A of injured Joginder (PW2), he was admitted in hospital by his brother i.e. complainant SC No.1/2009 State vs Sonu @ Arjun etc. Page 24 of 30 (PW1). Version of the complainant (PW1) that doctor had not asked from him the name of accused persons, appears to be correct in view of the fact that the history of assault was recorded by the doctor on the information given to him by the injured and not by the complainant. In the MLC, it is mentioned that "Alleged H/o Assault today (inform self). So, I do not find any force in the arguments of the Ld. Defence counsel. Nonmentioning of names of accused persons to the doctor, does not in any way affect the case of prosecution. Conclusion 39 In view of the law discussed above in cases titled State of Maharashtra vs. Tulshiram Bhanudas Kamble and others (supra), Vasant Vithu Jadhav vs. State of Maharashtra ( supra) and Nisar Khan @ Guddu and others vs. State of Utranchal ( supra) and discussion made above, I am of the considered opinion that the prosecution has successfully established the circumstances brought forth on record. It has been established that on the day of incident i.e. on 30.7.2008, both the accused Sonu @ Arjun and Naveen in furtherance of their common intention, caught hold of injured SC No.1/2009 State vs Sonu @ Arjun etc. Page 25 of 30 Joginder (PW2) at the spot and they cutter blows were given on his person.
40 The prosecution has duly established the occurrence of incident on the day of incident. Prosecution has also successfully established the identity of both the accused persons and also their presence at the spot at the time of incident. Testimony of injured witness Joginder (PW2) and eye witness/complainant (PW1) are trustworthy and reliable. From the circumstances brought on record, prosecution has duly established that accused persons were having intention and knowledge to kill Joginder (PW2) on the day of incident as accused Sonu was carrying cutter which is a sharp edged weapon. Several injuries on the person of injured Joginder (PW2) as reflected from his MLC also establishes the intention of accused persons to cause his death. Recovery of weapon of offence i.e. cutter has also been duly proved on record by the prosecution.
41 Consequently, in view of testimony of injured Joginder (PW2) and complainant (PW1) coupled with medical evidence and FSL report, I am of the considered opinion that the prosecution has established its case beyond reasonable doubt against both the accused that on the day of incident they gave cutter blows on SC No.1/2009 State vs Sonu @ Arjun etc. Page 26 of 30 the person of Joginder (PW2) with intention and knowledge to cause his death.
42 Therefore, both the accused persons, namely, Sonu @ Arjun and Naveen are hereby held guilty for the commission of offence punishable under Section 307/34 IPC. They are convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 30.03.2011 District Judge (East)
Addl. Sessions Judge
Karkardooma Courts : Delhi
SC No.1/2009 State vs Sonu @ Arjun etc. Page 27 of 30
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.1/2009
Unique Case ID No.02402R0740492008
FIR No.390/2008
Police Station Anand Vihar
Under Section 307/34 IPC
State Versus (1)Sonu @ Arjun
S/o Om Prakash
R/o Sumbhari Ki Jhuggi,
D Block, NSA Colony, Delhi.
(2) Naveen S/o Raj Kumar
R/o H. No. A446, Gali No.11,
NSA colony, Delhi.
ORDER ON SENTENCE
Vide my judgment dated 30.03.2011, I have
convicted both the accused Sonu @ Arjun and Naveen under section 307/34 IPC.
2 Today, I have heard Sh.Ashok Kumar, Ld. Addl PP SC No.1/2009 State vs Sonu @ Arjun etc. Page 28 of 30 for the State as well as Sh. Kumar Gaurav Ld. Counsel for the convicts on the quantum of sentence.
3 It has been argued on behalf of convict Sonu that in the present case, he is in custody since 30.7.08. He is young boy of 25 years of age. There is no previous involvement of convict in any other case except present one. Family of the convict Sonu is dependent upon him. On behalf of convict Naveen, it is submitted that he is young boy of 23 years of age, having three sisters to look after; he is sole bread earner of his family and entire family is dependent upon convict Naveen. It is further argued that there is no previous involvement of convict Naveen in any other case. It is argued that if longer custody sentence is awarded to the convicts, it is likely to play havoc, therefore, keeping in view their tender age and all other circumstances as mentioned above, a lenient view be taken in awarding sentence against them.
4 On the other hand, Addl PP for the State has argued that convicts have committed serious crime of attempt to murder by inflicting injuries on all over the body of the injured Joginder with a cutter. It is submitted that convict Sonu has already been convicted in a case of robbery in FIR No. 219/2006 Police SC No.1/2009 State vs Sonu @ Arjun etc. Page 29 of 30 Station Anand Vihar under section 394/34 IPC and is undergoing sentence in that case. In that case, he has been sentenced to undergo two years imprisonment and fine. It is further argued that convicts being hardened criminal and a danger to the society, do not deserve any leniency. It is submitted that exemplary punishment as provided under the law may be awarded to them.
5 Keeping in view the facts and circumstances of the case, both the convicts Sonu @ Arjun and Naveen are hereby sentenced to four years rigorous imprisonment and fine of Rs.10,000/ each for the offence punishable u/s 307/34 IPC. In default of payment of fine, the convicts shall undergo simple imprisonment for two months. The convicts shall be entitled for the benefit as per the provisions of Section 428 Cr. PC.
6 Copy of the judgment and order on sentence be given free of cost to the convicts. File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 31.03.2011 District Judge (East)
Addl. Sessions Judge
Karkardooma Courts : Delhi
SC No.1/2009 State vs Sonu @ Arjun etc. Page 30 of 30