Delhi District Court
State vs (1) Ravinder Paliwal on 29 May, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIIONAL SESSION JUDGE-01- SOUTH
PATIALA HOUSE COURTS, NEW DELHI
Session Case No. 229/2009
Case ID No. 02403R0536932006
State Versus (1) Ravinder Paliwal
S/o Sh. S C Paliwal
R/o 51, DDA Janta Flats, Adhchini, New Delhi.
(Proclaimed Offender)
(2) Rajeev
S/o Sh. Braham Singh,
R/o H. NO. 16, DDA Janta Flats, Adhchini,
New Delhi.
(3) Dharmender
S/o Phool Singh
R/o R223/2, Gopal Nagar,
Najafgarh, New Delhi.
(4) Y P Singh
S/o Sh. Prem Singh,
R/o 15, DDA Janta Flats, Adhchini, New Delhi.
(5) Shaukat Khan
S/o Sh. Sakoor Khan
R/o H. NO. 20, DDA Janta Flats,
Adhchini, New Delhi.
(6) Malkiat Singh
S/o Lt. Sh. Baldev Singh
R/o 38, DDA Janta Flats,
Adhchini, New Delhi.
SC No. 229/09 Page1/15
FIR NO. 231/2006
Police Station Hauz Khas
Under Section 341/342/323/506/147/148/356/379/308/149/34 IPC
Date of institution
of this case : 28/02/2009
Date on which order
was reserved : 29/05/2010
Date of decision : 29/05/2010
JUDGEMENT
The SHO of Police Station Hauz Khas has filed challan against the accused persons in the court of Metropolitan Magistrate, New Delhi for the trial of the accused persons for the offences under Sections 341/323/506 IPC. Lateron the supplementary challan was filed before learned Metropolitan Magistrate for trial of accused persons for the offences under sections 341/342/323/506/147/148/356/379/308/149/34 IPC. After supplying the copies to the accused persons and compliance of provisions of the section 207 Cr.P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused persons. BRIEF FACTS OF THE CASE The prosecution case, in brief, is that on 24/4/2006 complainant Sanjeev Kumar came to the police station and gave his statement in short that on 21/04/06, there was an exchange of words between Smt. Goswami and the wife of Narender Kumar, wife of Malket Singh, wife of Paliwal, wife of Y P Singh and wife of B K Chaudhary and Smt. Goswami was beaten by SC No. 229/09 Page2/15 them. Sanjeev Kumar and Dayal Singh took Smt. Goswami to AIIMS Hospital. Due to this the opposite party was annoyed with Sanjeev Kumar. On 23/04/06 at about 7.30 PM when he started his vehicle accused Y P Singh and his two brothers Rajeev and Dharmender and Ravinder Paliwal, Malkiyat Singh and Shaukat Khan were standing behind Sanjeev Kumar and he blew horn and asked them to give way but they started quarreling and abusing him. He was taken out of the vehicle and the two brothers of Y P Singh caught hold of him and Y P Singh, Malkiyat Singh, Shaukat Khand and Ravinder Paliwal started beating him mercilessly with danda, iron rod and he was attacked on his head, hand and legs. He was also criminally intimidated. Accused Y P Singh also snatched his gold chain and accused Shaukat Khan told that he should be buried today itself. On seeing him beaten by the accused persons Dayal Singh came to help him. Thereafter, injured was taken to Safdarjung Hospital with the help of some ambulance. On this information, the investigation by police commenced. IO prepared the site plan and recorded statement of witnesses and injured. The MLC's was taken from hospital. On completion of the investigation, the accused persons were challaned, as referred before.
CHARGE AND PLEA OF THE ACCUSED The prima facie case for the commission of offences punishable under Sections 342/392 IPC were found made out against accused Y P Singh and prima facie case for the commission of offences punishable under Section 308 IPC read with Section 149 IPC was found made out against all the accused persons. Charges were framed accordingly against them on SC No. 229/09 Page3/15 09/06/09 to which accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case prosecution has examined 5 witnesses in all namely PW1 Sanjeev Kumar, PW2 Dyal Singh, PW3 Dr. Ram Karan Chaudhary, PW4 Dr. Chandra Shekhra and PW5 HC Swaroop Singh. The request of learned Additional Public Prosecutor for another opportunity for prosecution evidence was turned down as more than sufficient opportunities have already been granted for prosecution evidence and prosecution has not completed the evidence, hence prosecution evidence was closed. PLEA AND DEFENCE OF ACCUSED PERSONS In the statements under section 313 CrPC the accused persons have either denied the incriminating evidence emerging from prosecution case and questions put to them or have expressed their ignorance about the same. They have stated that in fact, the quarrel took place between the complainant and accused party and due to intervention of relatives and friends, both parties compromised. So, a lenient view may be taken against them. They did not lead any evidence in defence.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned counsel for accused and have gone through the record of the case and the relevant provisions of law.
PW1 is Sanjeev Kumar, the complainant, who has identified the accused persons in his statement and he has stated that accused persons were residents of same locality and were residing in other flats. On 23/04/06 SC No. 229/09 Page4/15 at about 4 or 4.35 PM he was taking out his vehicle from parking place. All the accused persons then present in the court and Ravinder Paliwal were standing behind his vehicle. He blew the horn but they did not clear the way. The accused persons pulled him out from the vehicle. Accused Rajeev and Dharmender then present in the court caught hold him. Accused Y P Singh gave blow by danda on his head, hand and other parts of body. Accused Shaukat was holding a rod. He hit that rod on his head. Accused Malkeet Singh was also having the rod. Due to this beating he sustained injuries on his head, hand and other parts of body. Meanwhile Dyal Singh his neighbour also came there. Dyal Singh ran to make the call at No. 100. Accused bolted the house from outside when he went inside the house. PCR arrived. He was shifted to AIIMS where he remained admitted. His statement was recorded which is Ex. PW.1/A. In this process accused Y P Singh also snatched his chain. The reason of this beating was that he and Dyal Singh extended help to wife of Goswami who was also his neighbour when wives of all these accused quarreled and gave beating to her on 21/04/06. He had shifted Mrs. Goswami to hospital.
In the cross examination he has stated that they have compromised with each other. He did not want to pursue the case. There was a cross case against them as well as the accused out of the same incident. They have decided to live peacefully and happily with each other in future. He did not have any objection if they as well as the accused persons are acquitted in this case. He requested for a lenient view while deciding these cases.
PW 2 is Dyal Singh who has stated that on 23/04/06 at about 7 or 7.30 SC No. 229/09 Page5/15 PM he was standing outside his flat. He saw Sanjeev Kumar taking out his vehicle. All the accused then present in the court were standing behind the vehicle of Sanjeev alongwith Ravinder Paliwal. Sanjeev Kumar blew the horn but the accused persons did not clear the way. A hot exchange of words took place. Thereafter a quarrel started. Sanjeev was pulled outside. Accused Dharmender and Rajeev caught hold of Sanjeev, accused Y P Singh gave beating by danda. Shaukat Khan was having danda he gave blow by danda. Accused Shaukat Khan and Ravinder Paliwal were having iron rods. They gave beating by the rods. Sanjeev sustained injuries on his head. He rushed inside the house to make a call. The accused bolted the house from outside. Injured Sanjeev was shifted by police to the hospital. On 21/04/06 a quarrel took place between the wives of accused persons and wife of Goswami. He and Sanjeev extended help and shifted her to the hospital in injured condition due to this reason accused persons were having grudge against them.
In the cross examination he has given the same statement as given by PW1 Sanjeev Kumar regarding compromise in cross cases by both parties and for taking lenient view.
PW3 is Dr. Ram Karan Chaudhary who has stated that he was deputed by the Medical Superintendent to depose on behalf of Dr. Shaleen Prasad, who was working in the hospital as a Junior Resident and has left the hospital and his present whereabouts not known to hospital authorities. He identified the writing and signature of Dr. Shaleen Prasad as Ex. PW 3/A, on the basis of record maintained by the record clerk and his pointing out. As SC No. 229/09 Page6/15 per MLC Ex. PW 3/A the injuries received by Sanjeev were simple in nature.
PW4 is Dr. Chandra Shekhra who has stated that he was deputed by the medical superintend to depose on behalf of Dr. Pooja Abbey, Radiologist who was working in the hospital as a Senior Resident and has left the hospital and her present whereabouts were not known to hospital authorities. He identified the writing and signature of Dr. Pooja Abbey on Ex. PW 4/A, as he had seen her writing in signing in the usual course of the duty as per X ray report there no bone injuries seen on the X ray report No. 6995 dated 23.04.06.
PW5 is HC Sawroop Singh who has stated that on 24.04.06 he was posted as HC in police station Hauz Khas. One Sanjiv Kumar came to the police station and gave his complaint in writing, which is Ex. PW 1/A on which he made endorsement Ex. PW 5/A and sent the rukka to duty officer on the basis of which FIR No. 231/06 carbon copy of which is Ex. PW 5/B was recorded.
From the above evidence, it is clear that there is no iota evidence against the accused Y P Singh with regard to chain snatching, so offence under Section 392 IPC is not proved against the accused Y P Singh.
PW1 Sanjeev Kumar has stated that Dayal Singh has stated that Dyal Singh went to make phone call at number 100 and accused bolted him in the house when he was inside the house and there is nothing in the cross examination to discredit the statement of the accused persons which is also supported and corroborated by PW2 Dyal Singh. Therefore, charge under Section 342 IPC is proved beyond reasonable doubt against accused Y P SC No. 229/09 Page7/15 Singh.
As regards offence Section 308 IPC read with Section 149 IPC, both PW1 Sanjeev Kumar and PW2 Dyal Singh have stated specifically that they were beaten by accused persons with the common object and PW1 complainant Sanjeev Kumar sustained injuries. The MLC Ex.PW3/A of PW1 Sanjeev Kumar shows the simple injuries with blunt object which was shown as L/E CWL 1 x 2 cm scalp temporal right abrasion in right elbow and swelling in wrist.
In Ramesh & Anr. vs. State 2010 (1) LRC 270 (Del) decided recently by our Hon'ble High Court, the allegations against the accused persons were that they gave beatings to the complainant party by danda and saria (iron rod). Our Hon'ble High Court analysed the fact situation to ascertain whether Section 308 IPC is attracted to the Ramesh's case (supra) and though there was injury on the right temporal-parietal region and bleeding was found but it was held that merely because of an injury found on the head, it cannot be said that said injury was caused with the intention to commit culpable homicide not amounting amounting to murder.
In Jangir Singh & Ors. vs. State of Punjab 1988 (1) C.L.R. 569 High Court of Punjab & Haryana, it was held that merely because injury has been found on the head, it cannot be assumed that accused had intention or knowledge to cause such injury that had the death been caused, they would have been guilty of murder.
In Desh Raj Vs. Kewal Krishan and Ors. 2010 (1) JCC 48 Delhi our Hon'ble High Court quoted some of the relevant observations made by SC No. 229/09 Page8/15 learned trial court as follows:
"18. On the other hand the victim Desh Raj had suffered one injury i.e. a CAW 5 cm x 2 cm long on his scalp; no other injury was noted; had been declared fit for the statement on the same day when his statement Ex.PW1/A was recorded by the Investigating Officer which has become the subject matter of the complainant. Incident was reported at about 1.10 AM on 04.01.1992 and FIR was registered at 2.25 AM within a span of one hour.
19. Court had gathered the intention and knowledge on the part of the accused person from his oral and ocular versions of PW1 and PW2 as also the manner in which the assault had taken place; the part of the body on which the injury had been caused. The fact that the only one injury has been suffered by the victim; the fact that all the three accused persons were armed with three separate weapons i.e. a danda, an iron rod and a thapi yet the injury was a single blunt blow on the scalp of Desh Raj; had the accused persons the criminal intention to cause death they could have caused the death and injuries would have been in the plural and would have been on other vital parts of the body as well. The single simple blow injury suffered by Desh Raj had led the Court to conclude that the offence made out against the accused persons is one under Section 323 of the IPC."
After examining the matter the following observations were made by our Hon High Court:
"21. This Court is also of the view that the accused persons are guilty of the offence punishable under SC No. 229/09 Page9/15 Section 323 of the IPC only and the ingredients of Section 308 of the IPC are clearly not made out. Nature of the injury suffered by a victim may not always be true test to determine the offence committed by him, yet the ocular versions of PW1 and PW2 as also the medical record clearly establish that the accused persons had been rightly convicted for the offence under Section 323 of the IPC. Conviction of the accused persons for a graver offence is not called for."
In Velu vs. State 2004 Cri.L.J. 3783, there was a dispute between the appellant and the injured when the appellant parked his vehicle in front of the vehicle of the injured. The appellant caused injury on the backside scalp of injured using an iron pipe for this purpose and to run away from the spot. It was held by the Madras High Court that the blow having been given in a spur of moment and there being no pre-plan or pre-mediation, the offence under Section 308 IPC was not made out against the appellant.
In view of the above case law the mere fact that the injuries on the head and other body parts of injured were inflicted by Saria and danda the offence under Section 308 is not necessarily attracted and under the facts and circumstances of the case Section 323 IPC is attracted not Section 308 IPC. I hold that the prosecution has been able to prove its case against accused persons under Section 323/149 IPC.
RESULT OF THE CASE In view of the above I hold that accused Y P Singh is convicted under Section 342 IPC and all the accused persons including Y P Singh are SC No. 229/09 Page10/15 convicted under Section 323/149 IPC though the charges were framed under Section 308 IPC read with Section 149 IPC against all the accused persons. Let the accused persons be heard on the point of probation/sentence.
Announced in the open court on 29.05.2010 (S.K.Sarvaria) Additional Sessions Judge-01/South Patiala House Courts/New Delhi SC No. 229/09 Page11/15 IN THE COURT OF SHRI S.K. SARVARIA ADDITIIONAL SESSION JUDGE-01- SOUTH PATIALA HOUSE COURTS, NEW DELHI Session Case No. 229/2009 Case ID No. 02403R0536932006 State Versus (1) Ravinder Paliwal S/o Sh. S C Paliwal R/o 51, DDA Janta Flats, Adhchini, New Delhi.
(Proclaimed Offender) (2) Rajeev S/o Sh. Braham Singh, R/o H. NO. 16, DDA Janta Flats, Adhchini, New Delhi.
(3) Dharmender S/o Phool Singh R/o R223/2, Gopal Nagar, Najafgarh, New Delhi.
(4) Y P Singh S/o Sh. Prem Singh, R/o 15, DDA Janta Flats, Adhchini, New Delhi.
(5) Shaukat Khan S/o Sh. Sakoor Khan R/o H. NO. 20, DDA Janta Flats, Adhchini, New Delhi.
SC No. 229/09 Page12/15(6) Malkiat Singh S/o Lt. Sh. Baldev Singh R/o 38, DDA Janta Flats, Adhchini, New Delhi.
FIR NO. 231/2006Police Station Hauz Khas Under Section 323/341/506 IPC Date of institution of this case : 28/02/2009 Date of decision : 29/05/2010 Date of order on sentence : 29/05/2010 ORDER
Vide my judgment of even date, accused Y P Singh was convicted under Section 342 IPC and all the accused persons including Y P Singh were convicted under Section 323/149 IPC though the charges were framed under Section 308 IPC read with Section 149 IPC against all the accused persons.
Learned Additional Public Prosecutor has argued for deterrent punishment to the convict/accused in view of the serious offences proved against them.
The learned counsel for convict/accused persons has, on the other hand, argued that the lenient view may be taken as convict/accused SC No. 229/09 Page13/15 persons have compromised, so they should be granted benefit of probation.
I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the record of the case and relevant provisions of law, carefully.
There are cross cases between the complainant party and accused party. No previous conviction is alleged or proved against either of the accused persons. Parties are also stated to have compromised with each other but no application for compounding the offence is filed. In the circumstances, the accused persons deserves leniency and regard being had to the age, character or antecedents of the offenders and to the circumstances in which the offence was committed,and also because of the fact that both the parties have received injuries in the incident in question, I am of the view that it is expedient that the convicts should be released on probation of good conduct, instead of sentencing them at once to any punishment. Therefore, I direct the accused person be released on probation on entering into personal bond for the sum of Rs. 10,000/- each with one surety each in the like sum and to appear and receive sentence when called upon during the period of 6 months as court may direct and in the SC No. 229/09 Page14/15 meantime, to keep peace and be of good behaviour. The judgment of conviction and order on probation be sent to server (www.delhidistrictcourts.nic.in). File be consigned to record room.
Announced in the open court (S.K.Sarvaria)
on 29.05.2010 Additional Sessions Judge-01/South
Patiala House Court
SC No. 229/09 Page15/15