Delhi District Court
State vs . Hira Nand And Others 1. Rinku, S/O. Sh. ... on 4 October, 2021
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST02),
TIS HAZARI COURTS, DELHI
Sessions Case No. 677/2017
Assigned to Sessions on 18.11.2017
FIR No. 605/2015
Police Station Anand Parbat
Under Section U/s. 308 IPC
Charged Under Section U/s. 308 IPC
State Vs. Hira Nand and others 1. Rinku, s/o. Sh. Hira Nand
r/o. F126/D, Gali no. 21, Baljeet Nagar,
Punjabi Basi, Anand Parbat, New Delhi.
Arguments heard on 10.09.2021
Date of Judgment 04.10.2021
Final Order Convicted u/s 324 IPC
Appearance(s) : Sh. Alok Saxena, Ld. Addl. PP for State.
Sh. Inder Kant Jha, Ld. Counsel for
accused.
JUDGMENT:
1. The case pertaining to the charge sheet being filed after investigation u/s. 173 (2) Cr.P.C. in respect of FIR No. 605/2015 for the alleged offence u/s. 308 IPC of PS Anand Parbat.
2. The brief factual matrix as per the case of the prosecution is that on 28.08.2015, on receipt of DD No. 31A regarding quarrel, PW 8 SI S.C. No. 605/2015 State Vs. Rinku Page 1 of 21 (retd.) Karan Pal alongwith PW 4 HC Ratan Singh reached at the spot i.e F147, Punjabi Basti, Baljit Nagar,Delhi where they came to know that injured has been shifted to the hospital by PCR van. Thereafter, both of them rushed to Lady Harding Hospital and found injured Pramod admitted there. PW8 obtained MLC No. 53145 of injured Pramod s/o Ram Kishan. The doctor declared the injured fit for statement orally and he was enquired about the incident. PW8 recorded his statement Ex.PW3/A wherein he narrated the entire incident and stated that on 28.08.2015, at about 5.30 pm when he was returning home after his work and reached near his house, accused Rinku was seen coming from opposite side in the street. Accused Rinku started abusing him in a filthy language. When he protested, accused started giving beatings to him. During the course of beatings, he picked up half piece of brick and hit him on his head with the piece of brick and blood started oozing from his head. Thereafter, he called at 100 number. PCR van reached at the spot and took him and accused to Lady Harding Hospital. PW8 also collected MLC No. 53144 of accused, however, he was found discharged from the hospital. From the nature of injuries in the MLC and the statement of complainant, the offence u/s 308 IPC was found to be committed, hence, IO prepared rukka on the statement of complainant Pramod and got the present FIR registered. IO prepared site plan at the instance of complainant and also seized the piece of brick. recorded the statements of witnesses u/s 161 Cr.P.C. Efforts were made to arrest the accused with the help of informer, however, he could not be traced.
S.C. No. 605/2015 State Vs. Rinku Page 2 of 21Later on, accused Rinku was arrested and his personal search was taken. His disclosure statement was recorded. Thereafter, he was medically examined and produced before the court. During the course of investigation, IO obtained opinion regarding nature of injury on the MLC of the injured. Thereafter, IO prepared report u/s. 173 Cr.PC and filed the same in the court for judicial verdict.
4. Vide order on charge dated 03.01.2018 of Ld. Predecessor of this court, separate charge u/s 308 IPC was drawn against the accused to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded in trial for recording evidence of the prosecution.
5. In order to prove its case, prosecution has examined 09 witnesses. Out of these 09 witnesses, PW3 Pramod who is the complainant/injured is the only material and eye witness in the present case and the remaining witnesses are formal witnesses being police officials and doctor.
PW1 ASI Raj Kumar, who has deposed as under:
"On 28.08.2015, I was posted at PS Anand Parbat as MHC(M). On that day, SI K.P. Singh handed over to me a case property in a sealed condition alongwith seizure memo to deposit the same in PS Malkhana. I deposited the case property I.e the sealed pullanda of bricks in Malkhana and made entry in register no. 19 at Serial No. 2390. Today, I have brought the original register no. 19 pertaining to the said entry. The said entry is Ex.PW1/A (OSR) bearing my signatures at point A."
PW2 is HC Priyavart, who has deposed as under :
"On 28.08.2015, I was posted at PS Anand Parbat as Duty S.C. No. 605/2015 State Vs. Rinku Page 3 of 21 officer from 4.00 pm to 12.00 night. On that day, Ct. Rattan handed over to me a rukka sent by SI K.P. Singh for registration of FIR. On the basis of said rukka, I registered the present FIR Ex.PW2/A, bearing my signatures at point I handed over the copy of FIR and original rukka to Ct. Rattan to be handed over to SI K.P. Singh for investigation. I issued certificate u/s 65 of Indian Evidence Act, the copy of the same is Ex.PW2/C, bearing my signature at point A."
PW3 is Pramod, the complainant/injured who has deposed as under :
"On 28.08.2015, at about 5:30 PM, I was returning home after my work and when I reached near my house accused Rinku was seen coming from opposite site in the gali. Accused Rinku started abusing me in a dirty language. When I protested as to why he was abusing me, accused started giving beatings to me. During the course of beatings he picked up half piece of brick and hit me on my head with the said brick. Blood started oozing from my head. When I was trying to save myself from the accused. He had sustained some minor scratches from my nails. I called the police on 100 number. PCR came at the spot and took me and Rinku to Deen Dayal Hospital and I was medically treated there and discharged. Police recorded my statement Ex. PW3/A which bears my signatures at point A. Police took me to place where I sustained injuries and prepared the site plan Ex. PW3/B at my instance. Police seized the piece of brick vide a seizure memo Ex. PW3/C which bears my signatures at point A. Accused is present in the Court today. At this stage, MHC (M) has produced the case property in a sealed pullanda sealed with the seal of APRVT - 1. Seals are intact. Now the seals are broken. Piece of brick is taken out from the pullanda which is identified by the witness as it is the same piece of brick by which the accused had caused injury on my head. The Brick is Ex. P1.
XXXX by Sh. Inderkant Jha, Ld. Counsel for accused.
I was a conductor on a vehicle which was used to carry debris but I do not remember the number of the vehicle. The name of the owner of the vehicle was Suresh Dikshit. There was no fix time of my duty. There was no fix time of my leave from the duty. On the date of incident I had left my job at about 4:30 PM. I was coming on foot from the place of my work. The incident occurred at about 5 PM. I made call at no. 100 after running from the scene of crime but I do not remember the exact time. I reached hospital after sometime of reaching of PCR at the spot but I do not remember the exact time. I was discharged after dressing from the hospital. It is S.C. No. 605/2015 State Vs. Rinku Page 4 of 21 wrong to suggest that no incident had occurred. It is wrong to suggest that accused had not given brick blow on my head. It is wrong to suggest that brick was not seized in my presence. It is wrong to suggest that I am deposing falsely against the accused at the instance of police officials as the accused had got suspended two police officials of PS Anand Parbat. It is wrong to suggest that I am deposing falsely."
PW4 is HC Ratan Singh, who has deposed as under :
"On 28.08.2015, I was posted at PS Anand Parbat as Ct. On that day, I was on emergency duty with SI K.P Singh. On that day, at about 5.30 pm, the duty officer informed SI KP Singh about DD No. 31A. ON receiving the above mentioned information, I alongwith SI KP Singh went to the spot at F 147, Punjabi Basti, Baljeet Nagar. There we came to know that the injured was already shifted to Lady Harding Hospital by PCR. Thereafter, I alongwith SI KP Singh went to Lady Harding Hospital. From hospital, SI KP Singh collected the MLC of injured Pramod, who was examined by the IO. The inujred Pramod narrated the incident which was reduced into writing by SI K.P. Singh and prepared the rukka and gave me rukka for getting the case registered at PS. I went PS and got the case registered. After registration of FIR, I returned at the spot with rukka and copy of FIR which were handed over to SI KP Singh who had already reached there from hospital alongwith Pramod. I gave the rukka and copy of FIR to SI KP Singh. There, Pramod pointed out towards a brickbat (half piece of brick) while stating that it was the brick by which injury was inflicted upon him by the culprits. A pullanda of the above mentioned brickbat was prepared and same was sealed with the court seal vide seizure memo already Ex.PW3/C which bears my signature at point B. My statement was recorded by SI KP Singh at the spot. Thereafter, we came back to the PS. I can identify the case property if shown to me. At this stage, MHC(M) produced a pullanda in sealed condition with the seal of Court and same is opened. Pullanda is found containing the brickbat which is shown to the witness who correctly identified it. The brickbat has already been exhibited as Ex.P1.
XXXXXXX by Sh. Inderkant Jha, Ld. Counsel for accused.
We reached Lady Harding hospital at about 6/6.15 pm. I reached at PS at about 7.45 pm alongwith rukka and I reached at the spot from PS alongwith rukka and copy of FIR at about 9 pm. Public persons were present at the spot, however, none agreed to join the proceedings. It is wrong to S.C. No. 605/2015 State Vs. Rinku Page 5 of 21 suggest that I have not joined the investigation of this case at any point of time. It is wrong to suggest that IO obtained my signatures on the documents only to maintain the chain of events. It is wrong to suggest that accused has been falsely implicated in this case by the police to take revenge that two policeman were suspended on my complaint. I cannot say if accused is implicated in two dozen cases."
PW5 is Dr. Akanksha, CMO, Lady Harding Hospital, who has deposed as under :
"Today, I have been deputed by Medical Supdt, Lady Harding Medical College to identify handwriting and signature of Dr. Nidhi Yadav pertaining to MLC No. 753145 pertaining to patient Pramod s/o Ram Kishan. As per MLC record, patient was brought to hospital on 28.08.2015 by the PCR officer with the alleged history of assault. Patient was examined by Dr. Nidhi. Since Dr. Nidhi had left the services of the hospital and her present address is not available, however, I am identifying her handwriting and signatures on the MLC Ex.PW5/A which bears signatures of Dr. Nidhi at point A as I had worked with her and had seen her signing and writing in our official work. Except the handwriting and signatures mentioned in encircle X in the MLC, remaining portion of the MLC is in the handwriting of Dr. Nidhi. XXXXXXXXX by Sh. Inder Kant, Ld. Counsel for accused. It is correct that patient was not examined by me and whatever was deposed by me today is deposed as per record. It is wrong to suggest that I have never worked with Dr. Nidhi.."
PW6 is Ms. Balvinder Kaur, the record clerk, Lady Harding Hospital, Delhi who has deposed as under :
I am working as LDC in Lady Hardinge Hospital since 1997 and presently I am Record Clerk. I have been deputed alongwith the record of this case by Dr. Rama Anand, Head of the Radiology Department. I have brought the photocopy of the MLC no. 53145 pertaining to injured Pramod.
At this stage, MLC No. 53145 from the judicial file is shown to the witness and after perusing the same witness states that this MLC was prepared by Dr. Shweta Singhal, SR who has left the services of above hospital in the year 2016 and present whereabouts of Dr. Shweta Singhal are not known. Witness also S.C. No. 605/2015 State Vs. Rinku Page 6 of 21 deposed that the other doctors who has worked with Dr. Shweta Singhal has also left the job and no other doctor who is conversant with the handwriting and signature of Dr. Shweta Singhal is presently working in the hospital. I am working in the hospital since 1997 and I can identify the signature and handwriting of Dr. Shweta Singhal as I have seen her signing and writing the papers during the normal course of business in day to day affairs. At this stage, after seeing the MLC no. 53145 witness identify signature of Dr. Shweta Singhal at point A and is prepared by Dr. Shweta Singhal in her own handwriting which I recognize as I have seen her writing and signing during course of business. Hence, MLC is Ex. PW6/A. Alongwith Ex. PW6/A Xray film is also attached, same is also proved as colly. of Ex. PW6/A. XXXX by Sh. Inder Kant Jha, Ld. Counsel for accused.
It is wrong to suggest that the permanent address of Dr. Shweta Singhal is available in the hospital and we are not deliberately providing the same. It is also wrong to suggest that other doctors are still available in the hospital but I have deposed falsely on the ground that no such doctor who has worked with Dr. Shweta Singhal is available. It is further wrong to suggest that I have never seen Dr. Shweta Singhal while writing or signing papers during my normal course of business as my duties are only pertaining to maintaining the record and nothing else. It is wrong to suggest that I have deposed falsely."
PW7 is Dr. Ranvir, Senior Resident, Department of Surgery, Lady Harding Medical College, Delhi, who has deposed as under :
Today, I have been deputed by M.S. Lady Hardinge Medical College to identify the handwriting and signature of Dr. Vikas on MLC no. 53145 pertaining to patient Pramod s/o. Ram Kishan. As per our record, after initial treatment in causality patient was referred to Surgery Department. In the surgery department patient was examined and treated by Dr. Vikas who had now left the service from hospital and his present whereabouts is not known. I have seen the surgery notes mentioned in encircle X on the back side of the MLC which is already Ex. PW5/A. The said notes are in the handwriting of Dr. Vikas and also bears his signature at point A. I am identifying the handwriting and signature of Dr. Vikas in the MLC as I had worked with him in the same department in the same hospital and I had seen him signing and writing in our official duty.S.C. No. 605/2015 State Vs. Rinku Page 7 of 21
XXXXX by Sh. Inderkant Jha, Ld. Counsel for Ld. Counsel for accused.
It is correct that I have no personal knowledge about the facts of the present case. It is also correct that patient Pramod was not examined in my presence. As per MLC record the name of assailant is not mentioned in the column of alleged history. It is correct that whatever I have deposed, have deposed on the basis of record and not on the personal knowledge.
PW8 is IO Retd. SI Karanpal, who has deposed as under :
"On 28.05.2015, I was posted at PS Anand Parbat as SI. After receiving DD no. 31A true copy of the same is Ex. PW 8/A which bears my signature at point A, regarding quarrel, I alongwith Ct. Ratan Singh reached at the place of information i.e. F147, Punjabi Basti, Baljeet Nagar, Delhi. On inquiry there I came to know that injured person in the incident had already been removed to Lady Hardinge Hospital by PCR. Thereafter, I reached at Lady Hardinge Hospital and found injured Pramod admitted there. I made inquiry from the doctor about the fitness of doctor to give statement. Doctor declared the injured fit for statement orally and injured was inquired by me about the incident in the hospital. I recorded the statement i.e. already Ex. PW3/A which was signed by injured Pramod at point A. In the hospital, I also collected the MLC of accused Rinku who was also admitted there, however, he was found discharged from the hospital. I made endorsement Ex. PW8/B on the statement of injured and rukka was sent to police station through Ct. Ratan Singh for the registration of the case. Injured was discharged from the hospital. Thereafter, I alongwith injured reached at the spot. I prepared the site plan of the spot at the instance of injured and the said site plan is already Ex. PW3/B which bears my signature at point A. In the meantime, Ct. Ratan Singh reached at the spot and he handed over original rukka and copy of FIR to me. In the presence of injured I seized one half brick from the spot which was weapon of offence in the present incident. The said half brick was sealed by me in a pulanda with the seal of APPRVT1 and was taken into possession vide seizure already Ex. PW3/C which bears my signature at point B. I searched for accused on that day but he was not found at his house. Thereafter, injured was relieved from the investigation on that day. Case property was deposited by me in the malkhana intact. No other independent eye witness met me at S.C. No. 605/2015 State Vs. Rinku Page 8 of 21 the spot at that time. I recorded the statement of Ct. Ratan Singh and supplementary statement of Pramod Kumar. I continued search accused for a long time but I did not find any clue about his whereabouts. During the course of investigation, I obtained the result of the MLC. On
06.10.2016 I alongwith Ct Sandeep left the PS in search o accused and we visited his house but he was not found present there. Thereafter we reached near Park situated in Punjabi Basti, Baljeet Nagar at about 7:10 pm. We found accused Rinku present in the court today (correctly identified by the witness) sitting in the park. After seeing us accused tried to run away from there. However, he was overpowered by us at a small distance in a park. Accused was interrogated and arrested in this case by me vide arrest memo Ex. PW8/C which bears my signature at point A. Ct. Sandeep signed the same at point B. I recored the disclosure statement of accused as Ex. PW8/D which bears my signature at point A. Ct. Sandeep signed the same at point B. Personal search of accused was also taken by me vide memo Ex. PW8/E which bears my signature at point A. Thereafter accused was medically examined in Lady Hardinge hospital and due to late hours accused could not be produced in the court of Ld. MM, hence, he was kept in lockup of PS Anand Parbat. Next day, he was produced before the court of Ld MM at Tis Hazari Courts and was sent to JC. During the course of investigation I recorded the statement of Ct. Sandeep and other witnesses time to time. After the completion of investigation I prepared the charge sheet and the same was filed in the court. I can identify the half brick if shown to me. At this stage, MHC(M) PS Anand Parbat produced one sealed parcel sealed with the seal of court. The same is opened and found containing one half brick. The same is shown to witness and witness identifies the same brick seized by him. Brick is already Ex. P1.
XXXXX by Sh. Inderkant Jha, Ld. Counsel for accused.
FIR was registered after obtaining MLC from the hospital. It is wrong to suggest that firstly the FIR was registered, thereafter, the MLC was obtained. It is wrong to suggest that present FIR has been wrongly registered against the accused without any basis. Vol. Accused as well as injured both sustained injury in the same incident and which fact is mentioned in the MLC of the accused also. It is wrong to suggest that I am deposing falsely.
PW9 is Ct. Sandeep, who has deposed as under :
S.C. No. 605/2015 State Vs. Rinku Page 9 of 21"On 06.10.20216, I was posted as Constable at PS Anand Parbat. On that day I had joined the investigation of this case and I alongwith SI Kiran Pal went to house no. F126, Punjabi Basti, Baljeet Nagar, Delhi. Accused Rinku was not found there. Thereafter, we went to near Holi Chowk Park, where accused Rinku was found. He was apprehended. Accused was interrogated. Accused was arrested vide arrest memo already Ex. PW8/C which bears my signature at point B. Personal search of the accused was taken vide memo already Ex. PW8/E which bears my signatures at point B. Accused made his disclosure statement, which is already Ex. PW8/D and bears my signatures at point B. Medical examination of accused was got conducted and he was lodged in the lock up at police station. IO recorded my statement. Accused is present in the court. Correctly identified by the witness. XXXX by Sh. Inderkant Jha, Ld. Counsel for accused Rinku. I knew accused previously as accused was dealing in the business of building material and I was beat constable of that area. Accused was arrested at about 7:15 pm. No public person was present at the time of arrest. Accused was found inside the park. I have been working at PS Anand Parbat for 45 years. There is no specific name of the said park. It is wrong to suggest that accused was not arrested from the abovesaid park. It is wrong to suggest that accused was lifted from his house and was falsely implicated in this case. It is wrong to suggest that I am deposing falsely."
STATEMENT OF ACCUSED:
6. After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded so as to enable him to personally explain the incriminating circumstances appearing in the evidence against him. All the incriminating evidence was put to accused which he denied as being incorrect and has stated that a false case was registered against him as he has made complaint against two police officials due to which they were suspended and in order to take revenge, the present case was S.C. No. 605/2015 State Vs. Rinku Page 10 of 21 lodged against him by the police in connivance with the complainant. He did not lead any defence evidence.
ANALYSIS & DETERMINATION:
7. I have heard the Ld. Addl. PP for the State and Ld. Counsel for accused and have given a thoughtful consideration to the submission being made by them and also considered the record carefully.
8. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
9. It is argued on behalf of accused that he has been falsely implicated in this case.
10. It is further argued that as per the prosecution, the alleged incident took place on 28.08.2015, accused was arrested on 06.10.2016 i.e after a period of almost fourteen months which S.C. No. 605/2015 State Vs. Rinku Page 11 of 21 raises serious doubt over the prosecution story.
11. It is further argued that no independent public witness has been examined by the prosecution to prove its case except PW3 Sh Pramod. Present FIR was registered after concocting a false story.
12. It is further argued PW8 SI Karanpal who is the IO of the case has mentioned the date of incident as 28.05.2015 whereas the alleged date of incident as per prosecution is 28.08.2015 which further raise serious doubts on the prosecution story.
13. Lastly, it is argued that no offence u/s. 308 IPC is made out in view of the nature of the injury which has been opined as simple, the contradictions in the testimonies of witnesses and the facts and circumstances of the case. Hence, accused is entitled to be acquitted of the charges.
14. Per contra, on behalf of State, it is argued by Ld. Addl. PP for State that besides the nature of injury and weapon of offence, for the offence of 308 IPC, court has to see the knowledge and intention of the accused and the part of body in which injuries were inflicted. It is further argued that the accused made injuries on the head of the injured which is a vital part of the body with the brick. It is further argued that though the injuries were opined S.C. No. 605/2015 State Vs. Rinku Page 12 of 21 as 'simple' by the doctor but since same were inflicted on the vital part of the body but since same was caused on the head, it shows the intention of the accused persons and hence, the ingredients of offence u/s. 308 IPC are attracted. As regards the argument that IO has mentioned the date of incident as 28.05.2015 in place of 28.08.2015, it is submitted that no question in this regard was put to the witness on behalf of accused. It is further argued that all the other witnesses have stated the date of incident correctly and due to inadvertence, the IO has mentioned the wrong date of incident which does not in any manner affect the case of the prosecution.
15. It is further argued that regarding non examination of public witness IO has given plausible explanation in his testimony, by deposing that no public person come forward in joining investigation despite his request.
16. In the instant case, the accused has been charged with Section 308 IPC. Before adverting to the factual conspectus and the analysis of the evidence, it would be pertinent to briefly discuss the offences with which the accused persons have been charged with.
17. For the sake of brevity and convenience, let the relevant section 308 IPC be reproduced verbatim which is as under: S.C. No. 605/2015 State Vs. Rinku Page 13 of 21 "308. 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.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
18. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal Sadhu Singh Vs State of Punjab, 1997 (3) Crimes 55 .
19. Applying the aforesaid proposition of law, in the instant case, the accused has been charged for the offence U/S 308/34 IPC.
S.C. No. 605/2015 State Vs. Rinku Page 14 of 21Before adverting to an analysis of facts and arguments raised the court deems it appropriate to analyse the necessary ingredients of section with which the accused are charged with. The first section with which the accused persons have been charged with is section 308 of IPC which deals with offence of attempt to commit a culpable homicide. To constitute an offence u/s 308 of IPC, two ingredients are required:
(i) An intention or knowledge relating to commission of culpable homicide as defined u/s 299 IPC.
(ii) The doing of an Act towards it.
20. Thus, for committing an offence u/s 308 IPC, the accused must have a mental element i.e. mens rea either active or passive i.e. intention or knowledge and actus reus i.e. an act being done pursuant to such mens rea. In order to hold the accused guilty u/s 308 IPC, the court must return a finding that the accused was in fact having requisite intention or knowledge. Reliance placed on AIR 2008 SC 131 titled Bishan Singh Vs. State.
21. Further, it is pertinent to point out that causing of an actual injury may not be important for convicting a person u/s 308 IPC and merely because the injury inflicted by the accused did not cut any vital organs of the victim by itself is not sufficient to take the case out of the purview of section 308 IPC but the S.C. No. 605/2015 State Vs. Rinku Page 15 of 21 court has to examine his as to whether the act irrespective of his result was done with corresponding intention or knowledge. Reliance placed on 2004 Cr.L.J 4978 (SC) titled Parshuram Pandey Vs. State of Bihar.
22. Further, it is pertinent to point out that section 308 IPC is in two parts the first part details with a situation where if an act is done by a person with such intention and knowledge and under such circumstances that if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be punished. The second part of circumstance contemplated under the said section is when hurt is caused to any person to such act, as mentioned in the first part of the section, the quantum of punishment would increase. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of section 308, IPC and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
23. The first fact which has to be proved by the prosecution is that whether any overt act done by the accused which resulted in injury to the injured. PW3/complainant Pramod has deposed categorically that accused abused him in filthy language and when he protested, accused became angry and gave beatings to him and also hit him on his head with a piece of brick. His S.C. No. 605/2015 State Vs. Rinku Page 16 of 21 testimony gets further corroborated by his MLC wherein the doctor has mentioned that the patient had suffered Lacerated Wound over right parietal region.
24. The testimonies of PW3 further gets corroborated by the police witnesses who have given details about the incident.
25. Another argument of defence that there was no independent witness except PW3. Merely the fact that there was no independent witness except the complainant/injured does not affect the case of the prosecution in view of the corroborative testimonies of doctor and police witnesses.
26. As regards the argument regarding delay in arrest of accused after lodging of FIR, the IO has stated that accused was searched at his house as well as his permanent residence, however, he could not be arrested. Thereafter, on 06.10.2016, he was again searched and was found in a park near Holi Chowk park and was arrested. Therefore, the delay in arrest was caused by the accused himself and was not a fault on the part of the IO. Hence, this argument of defence is without any basis.
27. It is the settled proposition of law that defence has to stand on his own legs and they cannot take advantage of the lacunas of S.C. No. 605/2015 State Vs. Rinku Page 17 of 21 the prosecution story.
28. In the light of above discussion and after carefully perusing the testimony of PW3 Sh Pramod, I find his testimony consistent and corroborating and has remained unimpeached. Therefore, I am of the considered opinion that this witness is a natural witness who has given the true account of the incident and is not an interested witness and as such, can be safely relied upon by this court.
29. All these above witnesses have been cross examined by Ld. Counsel for accused persons at length and despite cross examination the testimonies of these witnesses remained unimpeached to the effect that accused had caused injuries with the help of brick on the complainant/PW3. Hence, if the testimonies of these witnesses commutatively taken into account and appreciated, I have no hesitation to hold that the accused inflicted injuries on the person of PW3.
30. Now, the second ingredient which prosecution is required to prove is that whether accused had an intention or knowledge, and whether he acted in furtherance of such intention to cause death of the injured, he would have S.C. No. 605/2015 State Vs. Rinku Page 18 of 21 been guilty of culpable homicide not amounting to murder.
31. As regards the intention, ld. State Counsel has argued that the brick used by the accused, the injury caused on the vital part of the body i.e head clearly points towards the guilt of the accused that he was having intention or knowledge to cause death of the complainant.
32. I have carefully perused the testimonies of all the prosecution witnesses and the medical evidence. Though it is correct that PW3/complainant Pramod received head injury, however, the said injury is not grievous but a simple injury. Perusal of the MLC of PW3 Pramod reveals a CLW on right parietal region. From this injury only, it cannot be made out if accused was having the intention or knowledge to cause such injury that would result in death of the injured. Further, it is not the case that there was enmity between them which would indicate that accused had any intention to kill the complainant.
33. For an offence u/s 308 IPC, it is necessary that the accused must have intention or knowledge that his act would result in culpable homicide.
S.C. No. 605/2015 State Vs. Rinku Page 19 of 2134. The Hon'ble Supreme Court of India in case titled as Roop Chand @ Lala Vs. State (NCT) of Delhi passed in Crl. Appeal No. 2204/2010 has held as under:
"7. Therefore, to secure conviction under section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide which in turn can be ascertained from the actual injury as well as from other surrounding circumstances."
35. In view of the above judgment and considering the facts and circumstances of the case and the fact that the accused Rinku hit the brick on the head of the complainant only once and the nature of injury has been opined to be simple, it is clear that the accused had no intention to cause such injury that would fall under culpable homicide. Therefore, I hold that accused had no intention or knowledge that their overt act would cause culpable homicide and as such, the necessary ingredient of section 308 IPC is missing. Therefore, the accused, in my opinion, could not be said to have committed any offence under section 308 IPC, the same would fall under section 324 IPC.
S.C. No. 605/2015 State Vs. Rinku Page 20 of 21CONCLUSION:
36. Resultantly, on the basis of aforesaid discussions and findings, the Court is of the considered opinion that the prosecution has been able to prove its case beyond the pale of reasonable doubt that the accused caused injuries to the complainant/injured. Hence, accused stands convicted for the offence punishable u/s. 324 IPC.
37. Let he be heard on the point of sentence.
Digitally signed by POORANANNOUNCED IN THE OPEN POORAN CHAND
CHAND Date:
COURT ON THIS 04.10.2021
2021.10.05
13:05:03 +0530
(POORAN CHAND)
ADDI. SESSIONS JUDGE02
(WEST):DELHI
S.C. No. 605/2015 State Vs. Rinku Page 21 of 21