Delhi District Court
State vs . Ashok & Ors. Digitally on 25 April, 2022
1
IN THE COURT OF MS. KIRAN GUPTA, ADDITIONAL
SESSIONS JUDGE-03, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
SC NO. 684/17
FIR NO. 73/13
PS Kanjhawala
U/S.308/452/323/324/34 IPC
STATE
Vs.
Ashok & Ors.
CNR NO. DLNW-01- 010380-2017
a. Session Case No. 684/17
b. Date of offence 13.03.2013
c. Accused 1. Ashok S/o Ram Chander (abated
since expired)
2. Yudhish S/o Laxman
3. Laxman S/o Kartar Singh
All R/o. H.No.B-117, Paliwala Rana
pana, Village, Qutubgarh, Delhi
4. Smt. Maya w/o Laxman
5. Partap S/o Sh. Dalip Singh
6. Sh. Dilbagh S/o Laxman
All R/o Sohti Road, Rana Pana,
Village Qutubgarh, Delhi.
d. Offence U/s. 308/452/323/324/34 IPC
e. Plea of accused Pleaded not guilty
f. Final Order All the accused persons are acquitted
State Vs. Ashok & ors. Digitally
signed by
KIRAN
Page no. 1 of 18
KIRAN GUPTA
GUPTA Date:
2022.04.25
13:13:41
+0530
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for the offence u/S. 308/452 IPC
All the accused persons are convicted
for the offence u/S. 323/34 IPC.
g. Date of 17.10.2017
Institution
h. Date when 12.04.2022
judgment was
reserved
i. Date of 25.04.2022
judgment
JUDGMENT
1. The accused persons are facing trial for the offence U/s. 308/452/323/324/34 IPC.
BRIEF FACTS
2. The case of prosecution is that on 13.03.2013, on receipt of DD no. 10 A, SI Paramjeet Singh alongwith Ct. Satbir reached at H No. 577, Rana Poli Wali Pana, Delhi, where they came to know that injured have been taken to Maharishi Valmiki hospital. They went inside the said house and found blood stains near the door of house. SI Paramjeet took photographs of the spot from his mobile phone camera. Then, they went to Mahrishi Valmiki hospital where injured namely Laxman, Yudhish, Sudhir, Kuldeep and Shabbo met him. He obtained their MLCs and recorded statement of Shabbo. She stated that she went to park to feed birds, where accused Laxman who was already present there taunted her and said " tu yahan pakshiyon ko dana Digitally State Vs. Ashok & ors. signed by Page no. 2 of 18 KIRAN KIRAN GUPTA Date:
GUPTA 2022.04.25 13:13:49 +0530 3 daal rahi hai aur tere ladke ka to teen saal pehle murder ho gya tha uska pata laga" ( his son Harish had expired three years ago and she would enquire about the same.) On this, an altercation took place between her and accused Laxman and later she came back to her home. After about half an hour, accused Laxman alongwith his sons Dilbagh, Yudhish, Maya w/o Yudhish came to her house and started abusing her. They were armed with dandas. They started beating her sons namely Sudhir and Kuldeep. After sometime, Pratap-chacha of Laxman alongwith his grandson Ashok came there and attacked upon them with jally and after causing injuries, they ran away from there. The FIR was initially lodged u/s 308/452/323/324/34 IPC. After investigation, chargesheet was filed against all the accused persons U/s. 308/452/323/324/34 IPC.
3. The Ld. MM after taking cognizance of the offence, summoned all the accused persons and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions, where after it was assigned to this court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case, charge for the offence U/s. 452/323/308/34 IPC was framed against all the six accused persons. The accused persons pleaded not guilty and claimed trial.
Digitally
signed by
KIRAN
State Vs. Ashok & ors. KIRAN GUPTA Page no. 3 of 18
GUPTA Date:
2022.04.25
13:13:55
+0530
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PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined as many as 12 witnesses.
5.1 PW1 is Ct. Raj Kumar. He deposed that on 13.03.2013, he was posted in CPCR, PHQ. At around 8.15 a.m., a message was received regarding some quarrel. He reduced the said message into writing. He proved the copy of PCR form as Ex.PW1/1.
5.2 PW 2 Smt. Shabbo is the complainant/eye witness. Her testimony in detail shall be discussed in the later part of judgment.
5.3 PW3 is HC Surender Kumar. He deposed that on 13.03.2013, at about 8/8.15 a.m. a call was received from the Control Room regarding some jhagda having taken place at Rana Poliwala Pana, Qutubgarh. Accordingly, he alongwith his PCR van and staff went there. He saw 3-4 injured at the spot.
5.4 PW 4 is Ct. Satyaveer Singh. He deposed that on 13.03.2013, he was posted at PS Kanjhawala. On that day, on receipt of DD No.10A, he alongwith SI Paramjeet Singh went to the place of incident near Qutub Garh Chopal, H.No.577, Rana Pali Wala Pana, Delhi. No injured or eye witness was found at the spot. They came to know that injured had already been taken State Vs. Ashok & ors. Digitally Page no. 4 of 18 signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.04.25 13:14:01 +0530 5 to Maharishi Valmiki Hospital. IO took the photographs of the spot and thereafter, they went to Maharishi Balmiki hospital where IO obtained the MLCs of injured persons. IO recorded statement of Shabbo and prepared the rukka and handed over to him. He got the case registered. He proved arrest memo and personal search memos of accused Yudhish, Lachman and Ashok as Ex.PW4/A to Ex.PW4/F. He also proved disclosure statement of accused Yudhish, Laxman and Ashok as Ex.PW4/G, Ex.PW4/H and Ex.PW4/J. The seizure memo of wooden danda recovered from the house of accused Laxman as Ex.PW4/L and pointing out memo as Ex.PW4/M. He identified the Wooden danda as Ex.P2.
5.5 PW5 is Sudhir. His testimony in detail shall be discussed in the later part of judgment.
5.6 PW6 is Ct. Vinit Kumar. He deposed that on 13.03.2013, he had received a call on channel no. 153 from mobile number 9312140016 regarding the quarrel which was recorded vide PCR form Mark PW6/A. 5.7 PW7 is Kuldeep. His testimony in detail shall be discussed in the later part of judgment.
5.8 PW8 WSI Somna is the duty officer who proved the FIR as Ex.PW8/A, endorsement on rukka Ex.PW8/B and certificate U/s. 65-B of Indian Evidence Act as Mark PW8/C. State Vs. Ashok & ors. Digitally signed by Page no. 5 of 18 KIRAN KIRAN GUPTA Date:
GUPTA 2022.04.25 13:14:07 +0530 6 5.9 PW9 is Wct. Gayatri Devi. She deposed that on 13.03.2013, she had received a call on channel no. 114 from mobile number 9312140016 regarding the quarrel which was recorded vide PCR form. She proved the copy of PCR form as Ex.PW9/A. She also proved the copy of record Mark PW9/B regarding the destruction of old data as per which old data of PA100 system upto 31.12.2014 has been deleted.
5.10 PW10 is SI Bijay Singh. He proved the arrest memos of accused Pratap, Maya and Dilbagh as Ex.PW10/A to Ex.PW10/C respectively. He also proved bail cum personal bond executed by accused persons as Ex.PW10/E and Ex.PW10/F. 5.11 PW11 is SI Paramjeet Singh. He was investigating officer of the case. He has proved rukka as Ex.PW11/A and site-
plan as Ex.PW11/B. The arrest memo, personal search memo and disclosure statement of accused Yudhish, Laxman and Ashok as Ex.PW4/A to Ex.PW4/J respectively. The Seizure memos of danda got recovered at the instance of accused Yudhish and accused Laxman as Ex.PW4/K and Ex.PW4/L. He further proved pointing out memo of place of incident as Ex.PW4/M. He identified the danda recovered from accused Laxman as Ex.P1. The photographs of the spot as Ex.PW11/C and Ex.PW11/D (colly) 5.12 PW12 is Dr. Amit Shokeen, Medical Officer, Digitally signed by State Vs. Ashok & ors. KIRAN KIRAN GUPTA Date:
Page no. 6 of 18 GUPTA 2022.04.25 13:14:12 +0530 7 Maharishi Valmiki Hospital. He deposed that he had examined patients namely Sudhir, Kuldeep and Shabo. He proved their MLCs Ex.PW12/A, Ex.PW12/B and Ex.PW12/C respectively.
STATEMENT OF ACCUSED PERSONS
6. After completion of prosecution evidence, entire incriminating material available on record was put to all the accused persons under Section 313 Cr.PC. They pleaded innocence and stated that they have been falsely implicated in the present case. They stated that Monika w/o Ashok had made a complaint against Sudhir/complainant as he was urinating in front of their house, to which Monika and her mother in law Saroj Bala objected. Sudhir called his mother Shabbo Devi and they started quarreling with Monika. FIR No. 75/2013 PS Khanjawala was lodged against Sudhir at the instance of Monika. To take revenge of the said case, Sudhir, his mother and his brother have lodged the present false case against them. Accused Ashok and Pratap further pleaded that they were not present on the spot at the time of incident. Accused Pratap pleaded that he left the house at 7:30 AM on 13.03.2013 in order to attend the civil case bearing no. 76/2013 before the Court of Sh. Ashish Aggarwal ld. ACJ-cum-ARC, Rohini Courts, Delhi. He has placed on record the certified copy of the ordersheet of the said date.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
GUPTA 2022.04.25
13:14:18
+0530
State Vs. Ashok & ors. Page no. 7 of 18
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ARGUMENTS
7. It is argued by the Ld. Addl. PP for the State that all the prosecution witnesses have duly supported the case of prosecution and proved that the accused persons with common intention forcefully entered into the house of complainant armed with dandas and caused injuries to the victims on their head and other vital parts of the body with such an intention and knowledge that death of any of them would be caused due to their such acts. It is submitted that from the MLCs, it is evident that there is injury by blunt object on the head and other vital parts of the body of injured persons. It is prayed that all the accused persons be convicted for the offence u/S 452/323/308/34 IPC.
8. Per contra, it has been argued by the ld. Defence counsel that no case is made out against any of the accused persons. It is the son of the complainant, namely Sudhir who had urinated in front of the house of accused Ashok on the alleged date of incident. When wife of Ashok namely Monika and her mother in law objected to the same, complainant Shabbo Devi and her other son Kuldeep also came there. They all started quarreling with the wife and mother of Ashok. FIR bearing no. 75/2013 was got lodged by wife of accused Ashok against son of complainant Sudhir. As a counter blast to the said Digitally signed by State Vs. Ashok & ors. KIRAN KIRAN GUPTA Page no. 8 of 18 Date:
GUPTA 2022.04.25
13:14:23
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FIR, the complainant has got lodged the present false FIR against the accused persons and her sons have falsely deposed against the accused persons at the instance of the complainant, who is their mother.
8.1 It is further argued that it is the case where the accused persons were attacked by the complainant and her family members, due to which some sudden mutual fight ensued between the parties. The statement of all the witnesses is contradictory. Further PW2, PW5 and PW7 being the family members are interested witnesses and have improved upon their statement. No reliance can be placed upon their testimony. The prosecution has not examined any independent witness to prove its case. It is prayed that since no offence is made out against any of the accused persons, they be acquitted for all the offences.
ANALYSIS OF EVIDENCE AND FINDINGS
9. Heard Ld. Addl. PP for the State, Ld. Defence Counsel for the accused and perused the complete record file. Accused are facing trial for the offences U/s.452/323/308/34 IPC. The essential ingredients of Section 308 IPC are:
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.04.25 13:14:29 +0530 State Vs. Ashok & ors. Page no. 9 of 18 10 Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
10. Thus, to bring home the guilt of the accused for the offence punishable under section 308 IPC, the prosecution is required to prove:-
i. the death of the complainant was attempted;
ii. that the act was done with intention or knowledge and under the circumstances that if it had caused death, the act would have amounted to culpable homicide not amounting to murder.
The material witnesses of prosecution are:
11. PW 2 Smt. Shabbo deposed that on 13.03.2013, at about 7 am, she went to a park to feed birds. Accused Laxman was already present there. He in a tauting manner asked her as to whether she had come to know anything about her son Harish who had expired three years back. She told him that they would see it themselves and asked him not to interfere. Thereafter, she returned back home. She started doing her household work.
Digitally
signed by
KIRAN
KIRAN GUPTA
State Vs. Ashok & ors. GUPTA Date:
2022.04.25
Page no. 10 of 18
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11.1 She further deposed that after about an hour,
thereafter, Laxman, Maya, Dilbagh and Yudish came to her house. All four of them were having lathis with them. All of them attacked them and started beating her and her sons Kuldeep and Sudhir with dandas. After sometime, accused Ashok and Pratap came there. Ashok was having a jaaly in his hand. Pratap exhorted all of them to beat them and claimed that as he had worked in police, he would see everything thereafter. Ashok hit her son Sudhir with jailly. After beating them, they all ran away. Sudhir called up at number 100. Police came and took them in their vehicle to hospital. They received medical aid there. A police official came there and recorded her statement Ex.PW2/1. She was discharged after medical aid.
11.2 During her cross examination, she deposed that park is at a walking distance of about 10 minutes from her house. There were many public persons in the park. She had remained in the park for about 10 minutes. She did not talk to anyone in the park regarding what was told to her by Laxman. From the park she reached back home within 10 minutes. She admitted the suggestion that wife of Ashok had lodged an FIR against Sudhir. She admitted the suggestion that in the year 2006, Sudhir got registered case against Praveen, Naveen etc.
12. PW5 Sudhir deposed that in the month of March, 2013, he was residing in H.No. 577, Rana Puli Wala Pana, Qutub Digitally signed by KIRAN State Vs. Ashok & ors. KIRAN GUPTA Page no. 11 of 18 GUPTA Date:
2022.04.25 13:14:41 +0530 12 Garh, Delhi. On 13.03.2013, he was present at his house in the morning hours. His mother Shabo went to the park to feed the birds. Accused Laxman met her and teased his mother by saying "jo tumahre ladke ka katal hua tha uske liye kya kia" and also started quarreling with his mother. His mother Shabo came back to their home and narrated to him regarding the above said incident. In the meantime, at about 8:00 am, accused Laxman, his son Yudish, Dilbagh and his wife Maya came inside their house. They were carrying lathi/dandas in their hands and after coming inside their house they all four started beating them with lathi and dandas. Sometime later, Pratap and Ashok- other family members of abovesaid accused persons also came inside their house. Accused Ashok was carrying jailly. Accused Pratap shouted and asked the other accused persons "aaj sabhi ko khatam kar do police ko mein apne aap dekh lunga", "mein police mei reh chuka hun" and then accused Ashok also started beating them with the said jailly. Accused Ashok gave jailly blow on his chest. The remaining accused persons also caused injury on his face and other parts of body with lathi and danda. His mother also received number of injuries. His brother Kuldeep who was also present in the house, suffered injuries on his head.
12.1 They raised alarm and all accused persons after inflicting injuries fled away from the spot. He made PCR call.
PCR van came at the spot and took them to Maharishi Balmiki Hospital. IO recorded the statement of his mother and thereafter arrested all the accused persons. At the instance of accused Yudish, one wooden danda Ex P-2 was recovered under the cot Digitally State Vs. Ashok & ors. KIRAN signed by KIRAN GUPTA Page no. 12 of 18 Date:
GUPTA 2022.04.25 13:14:47 +0530 13 lying in the room of his house, which was seized by the IO in his presence vide memo Ex. PW4/K. Accused Laxman also got recovered one wooden danda Ex P-1 from the room of his house which was seized by the IO in his presence vide memo Ex. PW4/L. 12.2 During cross examination, PW-5 admitted that they and accused persons are residing in the same village since long and are known to each other. He admitted the suggestion that he was not present in the park when accused Laxman allegedly teased his mother. He admitted that wife of Ashok had lodged one FIR against him. He admitted that he had filed a complaint Mark PW-5/DA against Naveen, Praveen, Ranvir Singh and Uday Singh in the year 2006.
13. PW-7 Kuldeep deposed that on 13.03.2013, he alongwith his brother Sudhir were present at their house. At about 7:45 AM, his mother came to the house and told that Laxman quarreled with her. After about 10 minutes, accused Laxman, his wife Maya, his son Dilbag and Yudish came there.
They were having dandas in their hands. They forcefully entered in their house and started abusing them. They beat him, his brother Sudhir and his mother with danda. Meanwhile accused Ashok and Pratap came to their house. Ashok was having iron jally. Pratap was not having anything in his hand at that time. Pratap was telling that aaj tum sab milkar inko nipta dalo, police ko mai dekh lunga. After that accused persons alongwith Ashok beat them. He, his brother and mother were injured. He suffered Digitally signed by KIRAN State Vs. Ashok & ors. KIRAN GUPTA Page no. 13 of 18 Date: GUPTA 2022.04.25 13:14:53 +0530 14 injury on his head. After sometime PCR came there and took them to Hospital.
13.1 PW-7 during his cross-examination, admitted that police had not interrogated any public persons in his presence. He admitted that he knows accused persons by their names even prior to the incident. He admitted that he was not present in the park where his mother went for feeding the birds.
14. On careful perusal of the statement of PW-5 and 7, it is evident that they were not present in the park when accused Laxman allegedly misbehaved with their mother who has been examined as PW-2. The testimony of PW-5 and 7 regarding the alleged incident at park is hearsay. The quarrel initially took place between PW-2 and accused Laxman in the park when she went to feed the birds. No other independent witness has been examined by the prosecution to prove that any sort of altercation took place between PW-2 and accused Laxman in the park in the morning on the date of alleged incident.
14.1 PW-2, 5 and 7 have deposed that after about half an hour accused Laxman, Maya, Dilbag and Yudhir came to their house and they were having lathis in their hand. They attacked on them and started beating them. They were later on joined by Pratap and Ashok. On the instigation of accused Pratap, Ashok hit Sudhir with jally. PW-5 Sudhir deposed that Ashok gave jally blow on his chest while the remaining accused persons caused injuries on his face and other parts of body with lathi and danda.
Digitally
signed by
State Vs. Ashok & ors. KIRAN
KIRAN
GUPTA
Page no. 14 of 18
GUPTA Date:
2022.04.25
13:14:58
+0530
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It is pertinent to mentioned herein that accused Ashok had expired during trial and proceedings against him stands abated. He further deposed that accused persons caused injuries to Kuldeep on his head. PW-7 Kuldeep has not deposed as to on which part of the body, accused persons inflicted injuries to them. All these witnesses were taken to the hospital and their MLCs were prepared. PW12 Dr. Amit Shokeen proved all the MLCs Ex.PW12/A to Ex.PW12/C. As per the MLCs, the injuries are as follows:
a) In the Ex.PW12/A which is of injured Sudhir, it is stated-
CLW 3 cm x 0.5 cm over left side of mouth; CLW 1 cm into 0.5 cm over left side of chest; abrasion over left hand with swelling over right chest side.
b) In Ex.PW12/B which is of injured Kuldeep, it is stated CLW- 3 cm x 0.5 cm over mid frontal region; abrasion over left hand and swelling.
c) In Ex.PW12/C which is of injured Shabbo, it is stated CLW 3 cm x 0.5 cm over right wrist; abrasion over both hands upper lip and forehead.
15. The nature of injury in all the MLCs is opined as simple. All the three injured were conscious and oriented when they were admitted in the hospital. In order to constitute an offence under Section 308 IPC, it is to be proved that the act Digitally signed by State Vs. Ashok & ors. KIRAN KIRAN GUPTA Date: Page no. 15 of 18 GUPTA 2022.04.25 13:15:03 +0530 16 was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered.
16. In this case, it is proved that the complainant and the accused persons are known to each other. As per the MLCs Ex PW12/A to PW12/C, the nature of injuries are simple in nature. The complainant and other injured were discharged from the hospital on same day and were conscious and oriented with normal blood pressure and pulse rate when they were brought to hospital and were medically examined by the doctor. Admittedly, one FIR bearing 75/2013 against son of complainant namely Sudhir who has been examined as PW-5 was got lodged by Monika, wife of accused Ashok u/s 354 IPC on the same day when the present FIR was lodged. In her complaint, she had categorically stated that when she confronted Sudhir for urinating in front of her house, he alongiwth his mother Shabbo started quarreling with her mother in law. He also misbehaved with her. After sometime her Chacha, his son Yudhish came there and quarrel took place between Sudhir and his mother on one side and his Chacha and Yudhish on the other.
Digitally State Vs. Ashok & ors. signed by Page no. 16 of 18 KIRAN KIRAN GUPTA GUPTA Date:
2022.04.25 13:15:09 +0530 17 By that time her husband Ashok and elder son of Chacha also came to the spot and separated both the sides.
17. Thus the quarrel took place instantly when the wife of accused Ashok objected to Sudhir as he was allegedly urinating in front of her house. The attack on the complainant and other injured by the accused persons cannot be said to be premeditated. There is no evidence that the accused persons were having requisite intention or knowledge to cause culpable homicide. Mere fact that some injuries were inflicted on chest and face, which are vital parts of the body, does not necessarily mean that the accused persons were having necessary knowledge and intention to kill the complainant and other injured persons.
18. It emerged from the facts as has been brought on record and proved that there was all of sudden fight between the accused persons, complainant and remaining injured. The injuries inflicted on the injured persons do not fall within the ambit of causing death as the injuries are simple in nature. PW12 i.e. the doctor concerned has also not opined that the same could have resulted into the death of injured persons. So the prosecution has failed to prove the per-meditated act on the part of accused persons to commit the offence. Moreover, the doctor has also nowhere opined that the injuries are danger to Digitally signed by KIRAN State Vs. Ashok & ors. KIRAN GUPTA Page no. 17 of 18 GUPTA Date:
2022.04.25 13:15:14 +0530 18 life. Hence, from the evidence on record, the prosecution is unable to bring the intention of the accused persons that it was pre-meditated.
19. The question which now arises for consideration is whether the injuries caused to the injured were sufficient to attract Section 308 IPC. The quarrel seems to have taken place instantly. The nature of injuries suffered by the complainant and other family members are opined to be simple. Apparently, the injuries were not caused with the avowed object or knowledge to cause their death. Hence, the ingredients of Section 308 and S. 452 IPC are not attracted. All the accused persons are accordingly acquitted for the offence u/S. 308/452 IPC.
20. On the basis of evidence on record and the nature of injuries suffered which is evident from the various MLCs, the prosecution has succeeded in proving that all the accused persons beat the complainant and her sons, hence the offence u/S. 323/34 IPC is duly proved against all accused persons. Accordingly, all the accused persons are convicted for the offence u/s 323/34 IPC.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.04.25 13:15:19 +0530 ANNOUNCED IN THE (KIRAN GUPTA) OPEN COURT ON 25.04.2022 ADDITIONAL SESSIONS JUDGE-03 NORTH WEST DISTRICT ROHINI COURTS, DELHI State Vs. Ashok & ors. Page no. 18 of 18