Delhi District Court
Fir No. 1098/04 ; State vs . Deepak Kumar Page 1 Of 14 on 30 July, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 30/09
FIR No.1098/04
P.S. Nangloi
U/S: 341/308/34 IPC
STATE
Versus
DEEPAK KUMAR
s/o Sh. Prem Singh
r/o village Ranhola,
PS Nangloi, Delhi
Date of Institution : 06-04-2005.
Date of Argument : 16-07-2010.
Date of Judgment : 30-07-2010.
JUDGMENT
1. Prosecution case, in brief, is that on 26-11-2004 complainant Pradeep Kumar along with his cousin Pawan and friend Devender had gone to Bajaj Auto Service Station, village Ranhola to take the delivery of motorcycle of Pawan which was given for service. Accused Deepak and Lakhmi @ Naresh met them at the Service Station. Accused had on previous occasions quarrelled with the complainant. Accused Deepak caught hand of complainant and asked him "Tu kya banta hai". An altercation FIR no. 1098/04 ; State Vs. Deepak Kumar Page 1 of 14 took place between complainant and Deepak. Pawan and Devender intervened and separated both of them. After taking delivery of motorcycle from Service Station, Pawan proceeded towards Kunwar Singh Nagar. Accused Deepak and Lakhmi followed him on their motorcycle. While leaving, Deepak had threatened to see them. Complainant and his friend Devender also proceeded towards Kunwar Singh Nagar on their motorcycle. At about 6 pm when they reached at Nilothi mod (turn) bus stand, they saw that Lakhmi @ Naresh stopped the motorcycle of Pawan. As soon as Pawan removed his helmet, accused Deepak gave a blow on his head with an iron pipe due to which Pawan fell down. Lakhmi @ Naresh asked him to give more beatings. Accused Deepak then gave blow on the left arm of Pawan with iron pipe. On seeing the complainant, Deepak and Lakhmi fled away from the spot. The injured was rushed to Sonia hospital. Statement of complainant Pradeep Kumar was recorded by the police. FIR was registered u/s 341/308/34 IPC. Accused Deepak and Lakhmi obtained anticipatory bail from Court. On completion of investigation, chargesheet was filed against both of them u/s 341/308/34 IPC.
2. After compliance of Section 207 IPC, case was committed to Sessions Court. Charge u/s 308/341/34 IPC was framed against both the accused to which they pleaded not guilty. During pendency of the proceedings, a settlement took place between the injured and accused Lakhmi @ Naresh. They filed a FIR no. 1098/04 ; State Vs. Deepak Kumar Page 2 of 14 joint petition u/s 482 Cr. P. C. before Hon'ble High Court. The Hon'ble High Court vide order dated 02-12-2009 quashed the FIR and all proceedings emanating from there against accused Lakhmi @ Naresh. Thus, only accused Deepak Kumar is now facing trial.
3. In order to prove its case, prosecution examined seven witnesses. PW-1 is Pradeep Kumar. He is the complainant. He deposed the facts stated his statement Ex. PW1/A, on the basis of which, the present FIR was registered.
PW-2 is Pawan. He is the injured. He deposed that on 26-11-2004 he and his cousin Pradeep had gone to Bajaj Service Station for picking the motorcycle given for service. Accused Deepak and Naresh came at the showroom and there was heated arguments between Deepak and Pradeep and they started quarrelling. He pacified both of them. Thereafter, he went alone on his bike from the showroom while both the accused were standing at the STD shop, near Ranhola bus stand. Thereafter, both accused went past his bike. They stopped him at Nilothi mod (turn). He he was taking out his helmet, accused Deepak hit him with an iron pipe on his head. Accused Naresh @ Lakhmi asked Deepak to hit him more. Accused Deepak then hit him on his hand and leg also due to which he became unconscious. On regaining consciousness, he found himself in Sonia hospital where he remained hospitalized for ten days.
PW-3 is HC Veer Singh. He had recorded the FIR Ex. PW3/A. FIR no. 1098/04 ; State Vs. Deepak Kumar Page 3 of 14 PW4 is Devender Singh. He stated that no incident of quarrel had taken place in his presence. He was declared hostile and was cross-examined by Ld. APP. He denied that both the accused had assaulted Pawan.
PW5 is Dr. R. Shankarnarayan from Rao Tula Rao Hospital. He had examined accused Deepak. He proved the MLC of accused as Ex. PW5/A. PW6 is Ct. Jagbir. He is the witness of investigation. He had taken the rukka at the PS for registration of FIR.
PW7 is Retd. SI Tek Chand. He is the IO of this case. During investigation, he along with Ct. Jagbir went to Sonia Hospital and collected the MLC of injured, who was declared unfit for statement. Since no eyewitness was found present in the hospital, DD entry was kept pending for investigation. On 27-11- 2004, he again went to Sonia Hospital where complainant Pradeep Kumar met him. His statement was recorded, on the basis of which rukka Ex. PW7/B was prepared which was sent to PS through Ct. Jagbir for registration of FIR. He then prepared the site plan Ex. PW7/H on the pointing out of complainant. He further deposed that statement of injured was recorded at Sonia Hospital on 01-12-2004 after he was declared fit for statement. His MLC was deposited for obtaining the opinion of doctor. He stated that both accused obtained anticipatory bail from the Court and were formally arrested on 17-12-2004 and 08-01-2005 respectively.
4. Statement of accused Deepak was recorded under FIR no. 1098/04 ; State Vs. Deepak Kumar Page 4 of 14 Section 313 Cr. P. C. wherein he stated that he is innocent and that he was given beatings by Pradeep Kumar, Pawan and Devender. He stated that he himself went to hospital and obtained treatment but was later implicated in this case.
5. In his defence, accused examined Deepak, running electrician shop at Nilothi mod (turn). He deposed that on 26-11- 2004 while he was sitting at his shop, he saw that a Pulsar motorcycle and a Bullet motorcycle were racing with each other on the road at a very high speed. He deposed that both the bikes collided with each other while trying to overtake each other due to which person on the Pulsar motorcycle fell down and received injuries. He was rushed to hospital by 3/4 persons.
6. The Ld. defence counsel has argued that there is a delay in the registration of FIR. Two of the Prosecution witnesses namely Devender Singh (PW4) and Ct. Jagbir (PW6) have not supported the prosecution case. It is submitted that MLC of the injured has not been proved. No independent witness has been cited or examined by Prosecution. Weapon of offence is also not recovered. The person, in whose car the injured was rushed to hospital, has not been cited as a witness. It is stated that there are contradictions and discrepancies in the statements of PW1 and PW2. It is thus argued that Prosecution has failed to prove its case against accused beyond doubt. Ld. APP however states that PW1 and PW2 have completely supported the Prosecution case FIR no. 1098/04 ; State Vs. Deepak Kumar Page 5 of 14 and there is no reason to disbelieve their testimonies.
7. Admittedly, the alleged occurrence took place at 6 pm on 26-11-2004 but the rukka was sent on 27-11-2004 at 5 pm. It is true that time factor has an important role in context with the lodging of First Information Report. But if the Prosecution explains the delay satisfactorily, the Court is not expected to reject the whole Prosecution case. Even an unexplained delay in lodging the FIR by itself is not fatal to the Prosecution case. It may prove fatal only if it is shown or suggested that the intervening period was used to concoct the case against accused or to fabricate some evidence against him. The IO SI Tek Chand (PW7) has deposed that when he reached Sonia Hospital, injured was declared unfit for statement by the doctor vide endorsement at point A on the MLC Mark X. According to him, no eyewitness was found in the hospital and therefore DD no. 41B was kept pending for investigation. He stated that on 27-11-2004 he again went to Sonia Hospital where the complainant Pradeep Kumar met him. He then recorded his statement and prepared the rukka Ex. PW7/B on the basis of which FIR Ex. PW3/A was recorded. In cross-examination IO admitted that on 27-11-2004 at about 10:30 am injured was again declared unfit for statement by the doctor. Thus, it is evident that delay in the registration of FIR was because of reason that injured was unfit for statement and no eyewitness was found in the hospital. There is no suggestion to the IO that he deliberately delayed the recording of statement of injured or the FIR no. 1098/04 ; State Vs. Deepak Kumar Page 6 of 14 complainant or that he used the intervening period to concoct the case against accused or fabricate any evidence against him. The delay in registration of FIR is therefore of no consequence.
8. It is correct that PW4 Devender Singh has turned hostile but for this reason the testimonies of the complainant and injured cannot be disbelieved. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR Crl. 308, in a case u/s 302 Cr. P. C., out of three eyewitnesses, two of them turned hostile, the Hon'ble Supreme Court upheld the conviction based on sole witness of wife of deceased. The Apex Court held that conviction can be based on the testimony of a single eyewitness provided his credibility is not shaken and the Court finds him truthful witness. PW1 Pradeep Kumar has deposed that on 26-11-2004 he went along with his cousin Pawan Kumar to Bajaj Service Station for picking the motorcycle of Pawan Kumar which was given there for service. Pawan went inside the showroom while he himself was standing outside the showroom. At that time, Deepak and Naresh quarrelled and grappled with him. In the meanwhile, Pawan came outside and got them separated. Deepak and Naresh then ran away from there and went to a shop situated near the showroom. They took the bike from STD shop and chased Pawan. He stated that while he and his friend Devender were going on their bike make Bullet, they saw that accused Deepak and Naresh had caught Pawan at Nilothi mod (turn) and Deepak hit a water pipe (made of cast iron) on the head of Pawan. Deepak hit the pipe FIR no. 1098/04 ; State Vs. Deepak Kumar Page 7 of 14 thrice on the head, foot and hand of Pawan. He deposed that as soon as he reached there, both the accused on seeing him and Devender ran away from the spot. He then took his brother Pawan on the bike and on the midway called the car of his friend and shifted Pawan to Sonia Hospital in the car. In cross- examination, he admitted the presence of public persons at the place of incident. He admitted that shops were open near the spot. He admitted that there were certain persons present who knew him. Based on his cross-examination, Ld. defence counsel has argued that IO is guilty of withholding important evidence which was available and should have been forthcoming but has not been produced before the Court. In the case of Kartik Malhar (Supra), the Hon'ble Supreme Court held that one credible witness outweighs the testimonies of number of other witnesses of indifferent character. Section 134 categorically lays down that no particular number of witnesses are required to prove the fact. Evidence has to be weighed and not counted. Therefore, in the present case, non-joining of public persons/ shopkeepers, who were allegedly present at the time of occurrence, is not fatal in the facts and circumstances of presence case.
9. Ld. Defence counsel has argued that in the FIR, the complainant has stated that his friend Devender had also accompanied him to the Service Station on the motorcycle but in his testimony in the court he has not deposed about Devender accompanying him to the Service Station. He has not explained FIR no. 1098/04 ; State Vs. Deepak Kumar Page 8 of 14 the presence of Devender at the time of incident. It is thus argued that there is discrepancy/ inconsistency between the FIR and the statement of complainant recorded in the Court and therefore case is not free from doubts. It is true that PW1 has not deposed that Devender accompanied him on his bike to the Service Station. However, he has stated that while going to Nilothi mod (turn) on the motorcycle, Devender was also with him. It is not getting clear from the testimony of PW1 as to when Devender met him. However, the discrepancy pointed out by Ld. defence counsel is only of a trifling nature and does not demolish the testimony of PW1. It is a settled law that trifling discrepancies should be ignored as they are often a test of truth. It must be remembered that there are discrepancies of truth as well as falsehood. It is broad facts of a case and not little details that are to be considered in weighing evidence. The contradictions and omissions only have a bearing on the credibility of a witness if they militate against the core of the Prosecution case. Where that is not so, they are innocuous. The discrepancy pointed out by Ld. Defence counsel is innocuous and does not affect the core of the testimony of PW1 which has been found to be truthful.
10. It has been pointed out from the testimony of PW2 wherein he deposed that he could not speak for about 1½ months after the incident. It is argued that if the said testimony of the witness is accepted, then his alleged statement u/s 161 Cr. P. C. was recorded by the IO himself and therefore it is contended that FIR no. 1098/04 ; State Vs. Deepak Kumar Page 9 of 14 investigation is not fair and proper. If the complete testimony of PW2 is read, it may be noticed that PW2 clarified that police had recorded his statement at Sonia hospital. On the basis of a single averment in the cross-examination of the witness, the entire investigation cannot be regarded as tainted.
11. The last contention of the defence counsel is that Prosecution has failed to prove the MLC of the injured. Doctors could not produced to prove the MLC as they were not traceable. It is thus submitted that Prosecution has failed to prove the nature of injuries and therefore Section 308 IPC is not made out. The offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is an attempt to commit culpable homicide which is punishable u/s 308 IPC whereas punishment for simple hurt can be meted out u/s 323/324 and for grievous hurt u/s 325/326. Qualitatively, these offences are different. Whether the injuries inflicted was grievous or simple deserves a backseat in the face of charge u/s 308 IPC. It is therefore immaterial that Prosecution has failed to prove the MLC of injured. The injured Pawan in his testimony has deposed that accused Deepak had hit iron pipe on the head, hand and leg. His testimony finds corroboration from the testimony of PW1 Pradeep Kumar who also deposed that Deepak hit Pawan with pipe thrice FIR no. 1098/04 ; State Vs. Deepak Kumar Page 10 of 14 on the head, foot and hand each. Both these witnesses have denied that injuries were received due to fall from motorcycle while racing with each other. It has been proved from the testimony of witnesses that head injuries were caused with iron pipe. Thus, the injuries were on vital parts of the body and accused can be attributed knowledge that by inflicting those injuries he was likely to cause death.
12. Thus, in view of my aforesaid discussion, I am of the opinion that Prosecution has been able to prove its case against accused beyond doubt. I therefore hold accused Deepak guilty for the offences u/s 308/341/34 IPC and convict him for the said offences.
( RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI:DELHI ANNOUNCED IN THE OPEN COURT ON 30.07.2010 FIR no. 1098/04 ; State Vs. Deepak Kumar Page 11 of 14 FIR no. 1098/04 ; State Vs. Deepak Kumar Page 12 of 14 IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE-03:NW:ROHINI:DELHI SESSIONS CASE NO. 30/09 FIR No.1098/04 P.S. Nangloi U/S: 341/308/34 IPC STATE Versus DEEPAK KUMAR s/o Sh. Prem Singh r/o village Ranhola, PS Nangloi, Delhi ORDER ON SENTENCE
1. The learned defence counsel has submitted that convict Deepak Kumar is a first offender and is not involved in any other criminal case. It is submitted that he has four months old child and old parents who are dependent upon him. It is further submitted that convict has been facing trial since 2005 and his conduct during trial has been good. It is further submitted that settlement has taken place between convict and injured Pawan. Settlement deed has been filed confirming the settlement between the convict and the injured. Injured has been identified by the learned counsel of convict. Request has been made for taking lenient view by releasing the convict on probation. The learned Additional PP, however, states that offence under Section 308 IPC is not compoundable and therefore compromise cannot be FIR no. 1098/04 ; State Vs. Deepak Kumar Page 13 of 14 considered while imposing sentence upon the convict.
2. Though offence under Section 308 IPC is not compoundable but as observed by the Hon'ble Supreme Court in the case of Ram Pujan AIR 1973 SC 2418, the fact of compromise can be taken into account in determining the quantum of sentence. Taking into consideration the compromise between the convict and the injured and also the fact that proceedings against co- accused Naresh @ Lakhmi have been quashed by the Hon'ble High Court after compromise with the injured and also taking into consideration the clean antecedents of the convict, I deem it appropriate that convict should be released on probation of good conduct for one year on furnishing a bond of Rs. 10,000/- with surety of the like amount. Convict shall appear and receive the sentence when called upon during probation period as the court may direct and in the meanwhile, he shall keep peace and be of good behaviour. Copy of the judgment and order on sentence be given to convict free of cost.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 04.08.2010.
FIR no. 1098/04 ; State Vs. Deepak Kumar Page 14 of 14