Delhi District Court
The State vs Devender Singh S/O Sh. Mahender Singh on 12 July, 2012
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT
ROHINI COURTS:DELHI
FIR No. : 815/2006
PS : Tilak Nagar
U/s : 307/341/34 IPC
Unique Case ID : 02404R0 070242007
In the matter of
The State
Versus
1. Devender Singh s/o Sh. Mahender Singh
R/o: WZ-IIIrd B-22 Vishnu Garden
Delhi.
2. Mahender Singh s/o Late Pyarar Singh
R/o: WZ-IIIrd B-22 Vishnu Garden
Delhi.
3. Harpreet Singh s/o Sh. Madan Singh
R/o: F-143, Vishnu Garden
Delhi.
4. Gurvinder Singh @ Sonu S/o Mahender Singh
R/o: III-B-22 Vishnu Garden
Delhi.
...ACCUSED
Session Case No. : 280/09
Date of Institution : 06.02.2007
Date of Committal : 23.03.2007
Date of reserving judgment/order : 9.7.2012
Date of pronouncement : 12.07.2012
J U D G M E N T
1. Accused persons namely Devender Singh, Mahender Singh, Harpreet Singh and Gurvinder Singh were sent up by police of PS Tilak Nagar to stand trial for offence punishable U/s 341/307/34 IPC.
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 1 of 30 22. The brief facts of the prosecution case are that on 29.10.2006, on the receipt of DD No. 21, ASI Balvinder Singh alongwith Ct. Sanjay reached at Park Hospital, Kyala, New Delhi where injured Mohd. Sadakat was found to be admitted and on the MLC, the concerned doctor had opined the nature of injury as grievous sharp and fit for statement. The injured got his statement recorded wherein he stated that he runs shop of readymade garments under the name and style of Libas at Khyala Road and on 29.10.2006 at about 6:30 p.m., when he was going to his shop from his house while talking over the mobile phone and might have reached at a distance of about 100 meters from his house, in the meantime on the way to shop, one boy namely Jindi stated to him tu aaj kal bari akar main rehta hai aur mujhe dekh kar ghurta rahta hai , on this he replied that "I am not staring at you and you are elder to me" (main app ko kahan ghur raha hoon, aap to mere se bare ho). On this, he (accused) started beating him with fists and legs blow and brought axe from his house while running and his brother Sonu, father Mahender Singh and friend Shunty also accompanied him and Sonu held him and Jindi attacked on his left leg and left side of stomach and Mahender and Shunty beaten him with bat-balla and lathi and fled away. After 10-15 minutes, his brother Mohd. Nazakat came at the spot and removed him to the Park Hospital. He stated that Jindi, his brother Sonu, father Mahender Singh and neighbour Shunty together caused him injury and requested for action against them. On the basis of the said statement, FIR was registered. During the investigation, IO prepared site plan of the spot.
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 2 of 30 3Accused persons namely Harpreet Singh @ Shunty, Mahender Singh and Ravinder Singh @ Jindi were arrested and their disclosure statement were recorded. Accused Ravinder stated he had thrown the axe on the way and accused Mahender Singh and Harpreet Singh got recovered danda lathi and bat respectively used in the offence. Efforts were made to trace accused Gurvinder Singh, but he could not be traced. However, later on, he got anticipatory bail from Hon'ble High Court and hence was formally arrested. After completion of the investigation, accused persons were charge sheeted for offence punishable u/s 341/307/34 IPC.
3. After supplying the necessary copies to the accused persons, the case was committed to the court of session vide order dated 23.03.2007 by Ld. Metropolitan Magistrate.
4. My Ld. Predecessor vide order dated 30.03.2009 after finding prima-facie case, charged all the four accused persons for offence punishable U/s 307/341/34 IPC, to which they pleaded not guilty and claimed trial.
5. The prosecution in support of their case examined as many as six (6) witnesses :-
6. The prosecution also examined following material witnesses :-
i. PW-1 Mohd. Sadakat is the injured and complainant, who proved his statement, Ex.PW1/A. ii. PW-2 Mohd. Najakat, the brother of injured who removed him to the hospital and is witness of FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 3 of 30 4 recovery of danda and baseball bat and proved seziure memo to this effect as Ex.PW-2/A and Ex.PW-2/B respectively.
7. The prosecution also examined following formal witnesses : -
i. PW-3 Dr. Ashish Sharma is the doctor who examined the injured with alleged history of sustained multiple injuries with head injury due to assault and lose of consciousness for five minutes and observed following injuries i.e. (i) incisional penetrating injury left iliac fossa (left side abdomen) 2 cm x 1 cm, (ii) incisional penetrating injury left thigh 2 cm x 1 cm
(iii) bruises on right and left side forehead and chin and (iv) tenderness in left iliac fosa. He proved the MLC as Ex.PW-3/A, follow up report Ex.PW-3/B, covering letter Ex.PW-3/C. ii. PW- 4 HC Birender Singh, is the duty officer, who on the basis of rukka recorded FIR of this case and proved carbon copy of the same as Ex.PW-4/A and his endorsement on the rukka as Ex.PW-4/B.
8. Prosecution also examined following witnesses of arrest and investigation :
i. PW-5 ASI Balvinder Singh is the first IO. In addition to other memos, he proved rukka as Ex.PW-5/A, site plan as Ex.PW-5/B. He is also witness of arrest and disclosure statement of accused persons and proved arrest memos of accused Harpreet Singh, Devender FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 4 of 30 5 Singh and Mahender Singh as Ex.PW-2/DB, Ex.PW-2/DC and Ex.PW-2/DA respectively, their personal search as Ex.PW-5/C, Ex.PW-5/D and Ex.PW-5/E respectively and their disclosure statements as Ex.PW-5/F, Ex.PW-5/G and Ex.PW-5/H respectively. He also witness of recovery of danda and baseball. He also proved attested copy of DD No.21 as Ex.PW-5/J. ii. PW-6 SI Madan Lal is subsequent IO. He proved copy of DD No. 14 regarding addition of Section 307 IPC in the FIR as Ex.PW-6/A and witness of formal arrest of accused Gurvinder Singh and proved his arrest memo as Ex.PW-6/A.
9. After conclusion of the trial, statement of accused persons u/s 313 Cr.PC recorded wherein they denied prosecution evidence and claimed innocence. They stated that witnesses are false and interested as they are related as real brothers and they are in the habit of lodging false case against the persons of locality. This is a false case. They stated that they have been falsely implicated in the present case alongwith other co-accused. They stated that they would lead evidence in their defence and examined DW-1 Sh. Balbir Singh and DW-2 Sh. Asgar Ali in their defence.
10. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the state and Sh. Baldev Raj, Ld. Counsels for the accused persons. I have gone through the record.
11. The star witness of the prosecution case is the complainant and FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 5 of 30 6 injured PW-1 Mohd. Sadakat. He testified that at the time of incident, he was doing the business of readymade garments and dry cleaning at Khyala Road in the name and style of Libas. On 29.10.2006, at around 6:15-6:30 p.m, he was going from his house towards his shop while talking on his mobile phone. After he had covered distance of 100 meters in his gali, there Devender Singh @ Jindi, met him and stopped and stated that tu aaj kal bahut akar mai rahta hai aur mujhe ghurta rahta hai, thereafter started beating him. He (witness) told him that he was elder to him. He (accused) gave beatings to him by fist and leg blows. Thereafter, he (accused) ran towards his house and brought a kulahdi (axe). Thereafter, his brother Sonu, Mahender Singh and one neighbour Shunty came (sic). Thereafter, Sonu caught hold of him and Jindi assaulted him with the kulhadi on his left abdomen and left thigh. Mahender Singh and Harpreet @ Shunty started beating him with danda and bat blows. Thereafter, they ran away from the spot. Thereafter, he became unconscious. Thereafter, he regained consciousness in the Park Hospital. Later on, he came to know his elder brother Mohd. Nazakat had removed him to the hospital. Police came at the hospital and recorded his statement.
12. The testimony of PW-1 is corroborated by his brother PW-2 Mohd. Najakat. He stated that Mohd. Sadakat is his younger brother and at the time of the incident, he was at Patel Nagar and somebody from the mohalla made a call to him that his brother was being beaten up badly. Thereafter, he came on his bike and reached the place, where the incident took place, FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 6 of 30 7 which was only a distance of 100 meters, in front of house of Devender Singh. There he saw that his brother was lying in unconscious and blood was oozing out from his thigh and abdomen and his face was also swollen. Thereafter, he removed his brother in my car to one Park Hospital, which at a distance of 1 km of their house. Thereafter, the hospital authorities made a call on 100 number and police came there. Police had recorded the statement of his brother Mohd. Sadakat.
13. PW-3 Dr. Ashish Sharma, Consultant Surgeon, Park Hospital and Trauma Centra corroborated the injured that on 29.10.2006 injured was brought by his brother with alleged history of sustained multiple injuries with head injury due to assault and history of lose of consciousness for five minutes and on local examination he noted two incisional penetrating injuries apart from one bruise and tenderness and prepared MLC.
14. Ld. Defence Counsel submitted that witnesses are interested witnesses and there are material discrepancy in the testimony of the witnesses. Place of occurrence is located in thickly populated area, yet there is no independent witness. Further false evidence has been created by getting medical examination done in some private hospital instead of government hospital without informing the police. Ld. Counsel for accused persons in support of his arguments cited judgments : B. N. Singh etc, v. State of Gujarat Etc., AIR 1990 SC 1628; Jainul Haque v. State of Bihar, AIR 1974 SC 45; Hanuman v. State of Haryana AIR 1977 SC 1614; Ishwar Singh v. State of U.P., AIR 1976 SC 2423; Chaman Lal v. State unreported judgment of division FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 7 of 30 8 bench of Hon'ble High Court in criminal appeal no. 732/2005, decided on 11.02.2010; Rajpal v. State 2010 Crl. L. J. 3683; Dharamraj v. State NCT of Delhi, 2011 (4) JCC 2975; Braham Parkash v. State, 2011 (3) Crimes 132 judgment of division bench of Hon'ble High Court; Mayur Panabhai Shah v. State of Gujarat AIR (1982) 2 SCC 396; Dhananjay Singh Bhadoria v. State, 2011 (3) JCC 2256 judgment of division bench of Hon'ble High Court ; Rahisa v. State of NCT of Delhi 2011 (181) DLT 651 judgment of division bench of Hon'ble High Court; Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh And Others AIR (1977) 4 SCC 600.
15. Before appreciation of evidence, lets examined the ratio of cited judgments. In B. N. Singh (supra) case, there was a industrial concern and in the complex, there were factories as well as quarters for officers and workers and except accused no. 5, the rest of the accused are the employees of the corporation and they were alloted quarters. The factory works in four shifts. Originally there was one trade union. About three years prior to this incident, another trade union came into existence and there were factions between the two rival unions. The deceased and accused belong to the rival factions. At the time of incident, accused no.1 was the Joint Secretary, accused no3 was the Vice-President and accused No.6 was the Vice-President of the staff union of the employees union and the deceased was the Vice-president of the rival Mazdoor Union. On the day of occurrence deceased was returning after completing his duty. PW-5 followed him. When deceased reached near place, all the FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 8 of 30 9 accused surrounded him and deceased raised cries. PW-4 a dismissed worker and PW-6 were going alongwith Ramy Bhandari heard cries for help and they ran towards him and PW-5 also ran towards him and they saw accused assaulting the deceased. On seeing PW-5 approaching the place, accused ran away and PW-5 escorted the deceased to nearby mandi and deceased was bleeding profusely and he fell down. PW-4 having noticed the injury, went to police station and lodged report. The prosecution mainly relied on the evidence of all the eye witnesses. Learned Sessions Judge did not accept prosecution version that accused no.2, 3 and 6 caught hold the deceased as he observed injury all over parts of his body and acquitted them. However, accepted the evidence in respect of accused no.1 and 5 holding that evidence of these witnesses are corroborated by other evidence. There was bitter rivalry between accused union and union of deceased. Material witnesses were all interested witnesses. It was held that the evidence of interested witnesses cannot be rejected outright on the sole ground that they are partisans but one important circumstance to be noted in this case is that all these three witnesses have consistently deposed that accused no.3 also as one of the persons who caught hold of the deceased. The hon'ble Supreme Court observed that it is highly unsafe to rely on their evidence against any of the accused and acquitted the accused.
16. In Jainul Haque (supra) case, evidence of eye witnesses was found to be unsatisfactory and eye witnesses were prone to FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 9 of 30 10 exaggerate things and to involve as many accused as possible and it was held that under circumstance it was not safe to base the conviction of the appellant. It was also observed that the evidence of exhortation is, in the very nature of things, a weak piece of evidence and there is quite often a tendency to implicate some persons, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant and acquitted accused.
17. In Hanuman (supra) case, it was case u/s 354 IPC and the complainant was on the way to her field for collecting jowar but it is said that there was no jowar crop on the land at the relevant time and complainant had no injury on her person and the alleged witness has not been examined. The Court held that they were inclined to accept that complainant made exaggeration and therefore benefit should go to the accused. However, sentence of fine was upheld.
18. In Ishwar Singh (supra) case, it is pointed out that FIR which is stated to have been lodged at 9:05 a.m. on February 14, 1973 was sent out from the police station the next day, February 15, time of dispatch was not stated but this appears from the record that the magistrate received it on the morning of February 16. The court of Magistrate was nearby, there was delay of about two days. No explanation was given for delay. There was discrepancy in the testimony of witness and FIR. It was held FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 10 of 30 11 that the variation and the delay can not be dismissed as minor discrepancy.
19. In Chaman Lal (supra) case, the MLC of injured was not proved and therefore it could not be proved that injured was stabbed on the vital parts of the body which attracts offence u/s 307 IPC and appellant was convicted for offence u/s 323 IPC.
20. In Rajpal (supra) case, it was held that depth of the wound found on the right side of the stomach was not given in the MLC. The x-ray report of abdomen, evidence of gas under the right doom of the diaporam was not seen, that means the injury was not upto the peritorium which is an internal organ and they had gone for x-ray of abdomen for this very reason. Since depth of the wound has not mentioned against the injury no.1 without co relation with x-ray, it would be treated as a simple incised wound. There was only one knife blow and therefore it was held that there was no intention to cause death. There was also no substantial force in the blow. Appellant was convicted for offence u/s 324 IPC. It is worthwhile to quote observation of said case : To quote :
13. In order to succeed in a charge u/s 307 of IPC, the prosecution was required to prove (i) that the death of a human being was attempted, (ii) that such death was attempted to be caused by consequence of the act of the accused and (iii) that such act was done with the intention of causing death or that it was done with the intention of causing such bodily injuries as the accused knew to be likely to cause death or was sufficient in the ordinary course of nature to cause death.
14. To justify the conviction under Section 307 of IPC it is not essential that bodily injury capable of causing FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 11 of 30 12 death should have been inflicted. Although the nature of injury may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section.
15. It was held by the Hon'ble Supreme Court in Sanjay Kumar & Anr. v. State of M. P. 1994 Sup. (I) Supreme Court Cases 502 that in order to bring the case within the ambit of Section 307 of IPC, it must be shown that the accused acted with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder. In that case, six incised wounds, which were not more than half inch in size and were skin deep, were found on the body of the injured. The High Court came to the conclusion that having regard to the fact that a sharp edged cutting instrument was used and certain injuries were caused on the chest portion of the complainant, the intention of the assailant was clearly to commit murder. It was held by the Hon'ble Supreme Court that the approach of the high Court was not correct and the cases would fall within the scope of section 324 of IPC.
16. In Hari Singh v. Sukhbir Singh 1988 (3) Crimes 541 the Hon'ble Supreme Court held as under :
Under Section 307 of IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder" under Section 307 of IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow the part of the body where the injury is inflicted FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 12 of 30 13 are some of the factors that may be taken into consideration to determine the intention. 'Where the fight is accident allowing to a sudden quarrel, the conviction under Section 307 of IPC is generally not called for. We, therefore, see no reason to disturb the acquittal of the accused under Section 307 of IPC.
21. In Dharamraj (supra) case, it was observed that where the ocular testimony relied upon is contradictory to the medical evidence. Although there is no hard and fast rule that where medical evidence conflicts with the ocular testimony that the Courts have to prefer the former, since the facts of each case would differ depending upon the powers of observation of eye witnesses, the nature of the injury, the manner of attack, etc.. However, on the facts, it was held that it could not be proved as to what cause neck injury which resulted in asphyxia and ultimately death of deceased and hence appellant was acquitted.
22. In Braham Parkash (supra) case case, it was held that evidentiary value of medical evidence is of corroborative nature. To quote :
30. It is true that the medical evidence is generally of corroborative nature unless it completely rules out the possibility of the injury being inflicted in the manner as deposed by the witnesses. In 'Solanki Chimanbahi Ukabhai v. State of Gujarat, AIR 1983 SC 484 it was observed as under :-
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses.FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 13 of 30 14
Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
23. In Mayur Panabhai Shah (supra) case, hon'ble Supreme Court held that evidence of doctor is to be appreciated like evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth.
24. In Dhananjay Singh Bhadoria (supra) case, it was held that the recovery made from premises taken on rent, landlord not joined in the search, the recovery was held to be not reliable under the circumstance of the case.
25. In Rahisa (supra) case, in the recovery no public witness was joined and it was not shown that it was time when public witnesses were not available, it was busy area and hence the recovery held to be not reliable.
26. In Narsinbhai Haribhai Prajapati etc. (case), there was some motive to commit crime, and blood stained shirts and dhoti were also seized from the person of respondent 1 and dharias were seized from the houses of respondents 1 and 3. Hon'ble Supreme Court held that these circumstances are wholly insufficient for sustaining charge of murder. It was case of murder on the basis of circumstantial evidence.
27. Written submissions were also filed by the complainant. It is FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 14 of 30 15 submitted that DWs are not reliable and are interested witnesses. Date of discharge is mentioned on the discharge summery. Recovery of weapon of offence is proved. CT Scan is not done to give opinion with respect to injury of abdomen. He had also filed one discharge summery.
28. In view of law laid down & rival contention, I shall appreciate the evidence. In his cross-examination, PW-1 stated that he knew all the accused persons as they were residing in the same locality and he is also living at the same address for 30-35 years since his birth and knew their names for last 10/15 years. He stated that 2½ years prior to the incident on the occasion of elections, the accused Jindi was digging a pole at the end of the gali and due to which there was an obstacle for passing of their car, as a result of which his father went for talk to the father of Jindi and thereafter, there was exchange of hot words between his father and Jindi and his father made a call at 100 number and thereafter, the residents of the locality got the matter settled. He admitted that the area, where he is residing and where his shop is located is thickly populated and there are lot of houses between his shop and his house. He also admits that some persons from the neighbourhood gathered, when the incident took place and they were local residents. The accused Jindi returned back with the kulhadi within 2-3 seconds of threatening him and the incident of assault lasted for 10-15 minutes. He does not know, who had taken him to the hospital and how and later on he came to know that his brother had admitted him in the hospital. He was discharged from the FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 15 of 30 16 hospital after five/six days.
29. PW-2 Mohd. Nazakat in his cross-examination stated he received the information, regarding the assault at around 6:00/6:15 p.m, while he was at Patel Nagar. He was coming from somewhere and he had stopped on the way on the shop of one of his friends. He reached the spot at around 6:45 p.m. He cannot tell the name of the informant, who had informed him on that day, nor he can tell the mobile number of that person. He voluntarily stated that the same was told by the person of locality. He knows the name of the informant, who is also residing in the neighbourhood of the accused persons but she had requested him not to disclose her identity, as she was a lady. At the time of the incident, on one was present in the house. When, he reached the spot, number of neighbour were present at the spot i.e around 30-40 persons were there and most of them were from the same locality. His brother regained consciousness after ½ an hour of reaching the police officials in the hospital. He took his brother alone to the hospital, as no one was ready to sit in the car.
30. It is submitted by learned Counsel on behalf of accused persons that admittedly public persons from neighbourhood and same locality were present, at the time of incident but none of them had joined and injured and his brother are interested witnesses and, therefore, not reliable. It is true that witnesses are injured and his brother and closely related to each other. However, injured himself a witness and there cannot be better evidence other than that of injured person. Merely because he had FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 16 of 30 17 sustained injury, he does not become unreliable witness.
31. As regards the submissions that public persons from the neighbourhood and locality were present and were not joined, it is very common phenomena that these public persons despite having witnessed do not come forward but that does not make evidence of the witnesses examined suspect. It only requires to be scrutinized more carefully. It is further submitted that the time of incident given by his brother that he received information is before the incident. PW-1 injured stated that at about 6:15/6:30 p.m. he was going towards his shop from his house while talking over the phone and thereafter incident took place whereas PW-2 claims that he received the information at around 6:00/6:15 p.m. regarding assault. This although appears to b e around or before that time but this is minor inconsistency as no one is sure about the time and variation of 15 minutes here and there, is acceptable.
32. Further it is submitted that there were previous enmity with accused Jindi @ Devender Singh admitted by the witness about two and half years ago, a quarrel took place between accused Jindi and his father. It is true that the previous enmity is admitted but it is settled principle of law that enmity is doubled edged weapon, it can be used for falsely implicating and it is also motive to commit crime. Hon'ble High Court of Delhi held so in case titled as Dharambir @ Dharma v. State, Crl. Appeal No.119/2010 & Crl. M. (Bail) 1451/2010 decided on 13.10.2011. But the enmity in the present case is remote and cannot be said to be immediate to suspect the evidence.
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 17 of 30 1833. Now coming to the most important aspect. It is vehemently argued that neither police was called over 100 number nor the injured was taken to the government hospital which make the incident suspect. The brother of the injured had reached after getting information and he was lying on the road, public persons gathered but no one had removed him to the hospital. The first reaction of any person would be to take the injured to the nearby hospital. The incident has taken place at Vishnu Garden and hospital is located at Chowkhandi, Near Keshopur Bus Depot, Outer Ring Road, New Delhi which is place nearby. Therefore taking the injured to the said hospital is not unnatural conduct.
34. The testimony of injured is consistent, cogent and finds corroboration from the medical evidence.
35. Now coming to the nature of injuries and role played by the accused persons. PW-3, the doctor who had examined the injured shown in the MLC that he was brought by brother and on local examination found injury on abdomen, left thigh and bruises on left and right side of forehead. In his cross-examination he stated that date of discharge is not mentioned in the aforesaid documents i.e. MLC. Ordinarily the MLC does not contain the date of discharge. It is only discharge summery which finds mentioned the date of discharge. It is also submitted that he was bleeding profusely but no clothe has been taken into possession. The doctor in his further cross-examination stated that CT scan of the patient got done and in the said CT Scan only soft tissue swelling in left FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 18 of 30 19 temporal region was found, however, there were no intercranial abnormality observed. But said CT San has not been placed on record and only findings are given.
36. Ld. Defence counsel submitted that as per MLC Ex.PW-3/A, the nature of injury has been given grievous and sharp but reasons of giving the nature of injury as grievous has not been given and the report of CT Scan shows that there was soft tissue swelling in left temporal region and no intercranial abnormality was found and said CT Scan has not been placed on record. Therefore nature of injury cannot be taken as grievous.
37. The doctor has no where stated the reason of mentioning those injuries as grievous. The injury in order to categorise as grievous hurt must fall in the categories mentioned in Indian Penal Code. The date of discharge is not proved. However, the discharge summery placed on record by complainant cannot be looked into at this stage. However, the injured has stated that he was discharged after 5/6 days, the same is therefore proved. There is admittedly no fracture and injured was also discharged after 5/6 days from the hospital and, therefore, the nature of injury cannot be said to be grievous.
38. As regards role played by each accused, as per statement of injured firstly accused Jindi @ Devender Singh met him and stopped him and gave beatings and thereafter ran towards his house and brought kuladi (axe) and thereafter his brother Sonu @ Gurvinder, Mahender Singh and neighbour Shunty @ Harpreet Singh came and thereafter Sonu caught hold him and FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 19 of 30 20 Jindi assaulted him with axe and Mahender Singh and Harpreet Singh started beating him with danda and bat blow. Therefore initially accused Sonu @ Gurvinder Singh and Jindi @ Devender Singh had assaulted him with axe and caused him injury and therefore accused Jindi @ Devender Singh and Sonu @ Gurvinder Singh shared common intention to cause injury on the person of the injured and caused simple hurt to the injured with sharp edge object and therefore offence punishable u/s 324/34 IPC is proved against accused Sonu @ Gurvinder Singh and Jindi @ Devender Singh. Further accused Mahender Singh and Harpreet Singh joined subsequently and beaten injured and therefore they shared common intention with accused Sonu @ Gurvinder Singh and Jindi @ Devender Singh to cause hurt with blunt object and caused injury on the person of injured with blunt object and hence offence punishable u/s 323/34 IPC is proved against all accused persons namely Sonu @ Gurvinder Singh, Jindi @ Devender Singh, Mahender Singh and Harpreet Singh @ Shunty.
39. Now coming to the defence of the accused persons. They denied the prosecution evidence and claimed that it is false case. DW-1 Sh. Balbir Singh testified that Accused persons are known to him since his childhood and also living in his neighbourhood. About five years ago, he was strolling in his street and at that time, two police officials came to call the accused persons who requested him to accompany them to PP Khayala. Police official told him that the accused persons had been arrested and asked him to sign some blank papers. When, FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 20 of 30 21 he questioned them, as to why they are taking his signature on blank papers, to which they stated that the accused persons will be released after sometime and they have to make some inquiry and they will fill the particulars on the papers. He asked as to why they are taking his signatures, they said that the signatures are to the effect that the accused persons are hail and hearty. Later on, he came to know that they have been charge sheeted in some quarrel case. However, no quarrel had taken place in his presence, nor he came to know that there were any quarrel in the locality with the accused persons. This witness is not witness of occurrence. He had merely gone to the police station alongwith accused and at the most he makes the story of arrest false but it does not in any manner show that no such incident had taken place. Rather arrest memo of of accused Devender and Mahender finds signature of this witness. This witness would not have signed the documents without making enquiry.
40. The other witness is DW-2 Sh. Asgar Ali. He testified that he knows accused persons and accused Mahender Singh is in the same business in which he is working and accused Devender Singh and Gurvinder Singh are the real sons of accused Mahender Singh. He knows accused persons since year 1985, as he had worked with them. He also knows Sh. Akram, who was also living in the same locality, since year 1985 i.e B Block, Khayala. He stated that Sh. Akram was egoist person and was not accepted by the society. He shifted from Khayala to Chand Nagar. There also he had some disputes. Later on, he shifted to Vishnu Garden in the neighbourhood of accused FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 21 of 30 22 persons. He had never heard or seen the accused Mahender Singh and his sons had any quarrel with anyone, since he knows them. Accused Harpreet also has good conduct and he had not heard him having quarrel with anyone. No quarrel had taken place between the accused persons and Akram and the complaint made by him seems to be false, as he is habitual of making complaints against the locality persons. This witness although stated that Mohd. Akram is habitual of making complaints, no specific detail of any complaint has been given. He is also witness of only conduct. He was neither witness of the occurrence and is of no help to the accused persons.
41. Accordingly, as per discussion above, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 324/34 IPC against accused Sonu @ Gurvinder Singh and Jindi @ Devender Singh beyond reasonable doubt and offence punishable u/s 323/34 IPC against all four accused persons namely Sonu @ Gurvinder Singh, Jindi @ Devender Singh, Mahender Singh and Harpreet Singh @ Shunty beyond reasonable doubt. They all are accordingly convicted for the said offence.
42. Let accused be heard on quantum of sentence. Announced in the open court today i.e. on 12.07.2012.
GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 12.07.2012 FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 22 of 30 23 IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 815/06 PS : Tilak Nagar U/s : 323/324/34 IPC ORDER ON SENTENCE - GURVINDER SINGH @ SONU Pr. : Sh. A. K. Srivastava, Ld. Addl. P.P for the State.
Convict Gurvinder Singh @ Sonu in person with Sh. Baldev Raj, Advocate.
Arguments heard on sentence.
Report of probation officer was called. Received and perused. It is submitted on behalf of convict that convict is not a previous convict and he has clean antecedent. He is aged about 27½ years and he is married and has one child and sole bread earner in the family. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Convict is facing trial since 2007. He had also remained in judicial custody initially. It is further submitted that the role of the present accused has been given as one, who was holding the deceased while the others had caused injuries. He has been convicted U/s 324 with the aid of section 34 IPC.
Therefore, it is submitted that he be given benefit of probation. Report of probation officer seen. Probation officer has reported that he is earning hand and responsible person and also recommended that there is likelihood of reformation of convict, if released on probation.
The convict is found guilty of offence punishable u/s FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 23 of 30 24 323/324/34 IPC.
In this case there is no premeditation to commit offence. Keeping in view totality of the facts and circumstances of the case and antecedent of the convict, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict instead of sentencing him at once. Accordingly, convict Gurvinder Singh @ Sonu is released on probation of good conduct for a period of one years on his executing personal bond and surety bond in the sum of Rs.10,000/- each to the satisfaction of this court subject to the condition that he shall keep peace and be of good behaviour during that period. The convict is also directed to give a sum of Rs. 10,000/- to the injured as compensation. The convict is also directed to appear and receive sentence during the period of two years, if he is so directed.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court GURDEEP SINGH
today i.e on 30.07.2012 ASJ-03/Outer/Rohini/Delhi.
30.02.2012
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 24 of 30
25
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 815/06 PS : Tilak Nagar U/s : 323/34 IPC ORDER ON SENTENCE - HARPREET SINGH Pr. : Sh. A. K. Srivastava, Ld. Addl. P.P for the State.
Convict Harpreet Singh in person with Sh. Baldev Raj, Advocate.
Arguments heard on sentence.
Report of probation officer was called. Received and perused. It is submitted on behalf of convict that convict is not a previous convict and he has clean antecedent. He is aged about 40 years and he is married and has two children and sole bread earner in the family. He is working as electronic technician. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Convict is facing trial since 2007. He had also remained in judicial custody initially. Therefore, it is submitted that he be given benefit of probation.
Report of probation officer seen. Probation officer has reported that he is earning hand and responsible person and also recommended that there is likelihood of reformation of convict, if released on probation.
The convict is found guilty of offence punishable u/s 323/34 IPC.
In this case there is no premeditation to commit offence. Keeping in view totality of the facts and circumstances of the FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 25 of 30 26 case and antecedent of the convict, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict instead of sentencing him at once. Accordingly, convict Harpreet Singh is released on probation of good conduct for a period of six months on his executing personal bond and surety bond in the sum of Rs.10,000/- each to the satisfaction of this court subject to the condition that he shall keep peace and be of good behaviour during that period. The convict is also directed to appear and receive sentence during the period of six months, if he is so directed.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court GURDEEP SINGH
today i.e on 30.07.2012 ASJ-03/Outer/Rohini/Delhi.
30.02.2012
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 26 of 30
27
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 815/06 PS : Tilak Nagar U/s : 323/324/34 IPC ORDER ON SENTENCE - DEVENDER SINGH @ JINDI Pr. : Sh. A. K. Srivastava, Ld. Addl. P.P for the State.
Convict Devender Singh @ Jindi in person with Sh. Baldev Raj, Advocate.
Arguments heard on sentence.
Report of probation officer was called. Received and perused. It is submitted on behalf of convict that convict is not a previous convict and he has clean antecedent. He is aged about 35 years and he is married and has two child and sole bread earner in the family. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Convict is facing trial since 2007. He had also remained in judicial custody initially. It is submitted that the probation be given to the convict.
On the other hand, Ld. Addl. PP vehemently opposes the same, as convict is the same persons, who had inflicted the blows to the injured.
Report of probation officer seen. Probation officer has reported that he is earning hand and responsible person and also recommended that there is likelihood of reformation of convict, if released on probation.
The convict is found guilty of offence punishable u/s 323/324/34 IPC.
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 27 of 30 28Keeping in view totality of the facts and circumstances of the case and antecedent of the convict, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of Probation of Offenders Act to the convict instead of sentencing him at once. Accordingly, convict Devender Singh @ Jindi is released on probation of good conduct for a period of two years on his executing personal bond and surety bond in the sum of Rs.10,000/- each to the satisfaction of this court subject to the condition that he shall keep peace and be of good behaviour during that period. The convict is also directed to give a sum of Rs. 10,000/- to the injured as compensation. The convict is also directed to appear and receive sentence during the period of two years, if he is so directed. The convict is further directed to not consume liquor during period of probation.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court GURDEEP SINGH
today i.e on 30.07.2012 ASJ-03/Outer/Rohini/Delhi.
30.02.2012
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 28 of 30
29
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 815/06 PS : Tilak Nagar U/s : 323/34 IPC ORDER ON SENTENCE - MAHENDER SINGH Pr. : Sh. A. K. Srivastava, Ld. Addl. P.P for the State.
Convict Mahender in person with Sh. Baldev Raj, Advocate. Arguments heard on sentence.
Report of probation officer was called. Received and perused. It is submitted on behalf of convict that convict is not a previous convict and he has clean antecedent. He is aged about 63 years and he is married and has five children and sole bread earner in the family. It is further submitted that there is no involvement of the convict prior or subsequent to the present offence. Convict is facing trial since 2007. he had also remained in judicial custody initially. Therefore, it is submitted that he be given benefit of probation.
Report of probation officer seen. Probation officer has reported that he is earning hand and responsible person and also recommended that there is likelihood of reformation of convict, if released on probation.
The convict is found guilty of offence punishable u/s 323/34 IPC.
In this case there is no premeditation to commit offence. Keeping in view totality of the facts and circumstances of the case and antecedent of the convict, I am of the opinion that the ends of justice would be met in giving the benefit of probation u/s 4 of FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 29 of 30 30 Probation of Offenders Act to the convict instead of sentencing him at once. Accordingly, convict Mahender is released on probation of good conduct for a period of six months on his executing personal bond and surety bond in the sum of Rs.10,000/- each to the satisfaction of this court subject to the condition that he shall keep peace and be of good behaviour during that period. The convict is also directed to appear and receive sentence during the period of six months, if he is so directed.
Copy of the judgment and order on sentence be given to the convict free of cost and copy of the judgment be also sent to probation officer for compliance. File be consigned to record room.
Announced in the open court GURDEEP SINGH
today i.e on 30.07.2012 ASJ-03/Outer/Rohini/Delhi.
30.02.2012
FIR No. : 815/2006, PS : Tilak Nagar State v. Devender Singh etc. Page 30 of 30